Opinion
CASE NO. 1408 CRB-2-92-4
SEPTEMBER 16, 1993
The claimant was represented by Brian W. Prucker, Esq., Asselin Associates.
The respondents were represented by Joseph A. LaBella, Esq., and John Scully, Esq., Cooney, Scully and Dowling.
This Petition for Review from the Ruling on Claimant's Motion To Preclude Defense Pursuant To Sec. 31-297(b) C.G.S. of the Commissioner for the Second District was heard September 25, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Frank Verrilli and James J. Metro.
OPINION
The claimant has petitioned for review from the April 9, 1992 Ruling on Claimants' Motion To Preclude Defense Pursuant to Section 31-297(b) C.G.S. In that ruling the commissioner denied the claimants' Motion to Preclude on the basis that the respondents' disclaimer of liability was filed timely under Sec. 31-297(c).
The pertinent facts are as follows. The claimant sent a notice of claim of a February 3, 1990 injury via certified mail to the employer and the commissioner for the Second District on February 23, 1990. The notices were received by both the employer and the commissioner on February 26, 1990. Thereafter the respondents issued a Form 43 Notice of Intent to Contest Liability on March 23, 1990 sent via certified mail and was received by the commissioner for the Second District on March 26, 1990.
Paragraph #2 of the commissioner's April 9, 1992 ruling states, "The notice was delivered by certified mail to the employer on February 16, 1990." Based on our review of the exhibits it appears that paragraph #2 contains a scrivener's error and should state, "The notice was delivered by certified mail to the employer on February 26, 1990." See claimant's exhibit A-1.
The commissioner concluded that the respondents Form 43 disclaimer was timely and denied the claimant's Motion to Preclude. The claimant took the instant appeal and presents the following issue on appeal; (1) whether the commissioner erred in concluding that the respondents disclaimer was timely filed under Sec. 31-297 (c), and (2) whether the trial commissioner erred in failing to find that the disclaimer was not sufficiently specific so as to be effective.
Sec. 31-297(c) provides in pertinent part, "Whenever liability to pay compensation for an injury or death which occurs on or after October 1, 1989, is contested by the employer, the notice required by subsection (b) of this section shall be filed on or before the twenty-eighth day after receipt by such employer of the notice of claim." (emphasis ours). The claimant would have us construe the above provision so as to count the day the ruling was issued as the first of the 28 days. However, we think such a construction ignores the language contained in Sec. 31-297(c) which states "shall be filed on or before the twenty eighth day after receipt. . ." (emphasis ours). Sec. 1-1 C.G.S. provides that the terms of a statute are to be construed "according to the commonly approved usage of the language" . . . "After" is defined, inter alia, as "later than a particular time or period of time: following the expiration of . . immediately following by not including the day, period, or date of event named. . ." Webster's Third New International Dictionary 1971 at 38.
Further, our own Supreme Court has held, "Unless settled practice or established custom . . . or the terms of a statute, have included in the computations." Austin, Nichols Co., Inc., v. Gilman, 100 Conn. 81, 84 (1923). See also, Lamberti v. Stamford, 131 Conn. 396 (1944). Thus we think the commissioner correctly computed the time limitations provided in Sec. 31-297(c) and applied it to the facts before him.
As to whether the commissioner erred in failing to determine whether the respondents notice of contest was sufficiently specific under Sec. 31-297(b), we agree that after having determined that the disclaimer was timely, the commissioner should have determined whether the disclaimer was sufficiently specific. While the respondents contend that the issue of whether the disclaimer was sufficiently specific was not raised at the trial level, the district file contains a document dated April 3, 1992 entitled Claimant's Draft Findings which appears to have been signed by representatives of both parties. That document states in paragraph #7 "The claimant allege that the disclaimer is sufficiently specific to be effective" and in paragraph #9 "The respondents allege that the disclaimer is sufficiently specific to be effective". Thus, it appears that the issue of specificity of the disclaimer's language was an issue before the commissioner.
Sec. 31-297(b) provides in part:
Except as provided in subsection (c) of this section, whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice . . . stating that the right to compensation is contested . . . and the specific grounds on which the right to compensation is contested . . . and a copy thereof shall be sent to the employer. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury . . . .
We note that the record in the instant matter is somewhat confused. The commissioner's Ruling of April 9, 1992 reflects that a hearing was held April 3, 1992. No transcript (if one exists) was ever forwarded to this tribunal. Clearly it is the appellant's, in this case the claimants', obligation to assure that a transcript is available. See e.g., Practice Book Sec. 4061, Taylor v. American Thread Co., 200 Conn. 108 (1986); Weaver v. Jessman Motors, Inc., 8 Conn. Workers' Comp. Rev. Op. 138, 793 CRD-5-88-12 (1990). However, a transcript of another hearing held June 25, 1991 pertaining to this matter was forwarded to the C.R.B. That transcript is misdated on the front cover as June 25, 1990. However, as the hearing notice and the certification of the hearing reporter indicates that the hearing was held June 25, 1991, we have reviewed that transcript and the exhibits relating thereto.
Thus, the commissioner should have made the determination as to the specificity to the disclaimer. However, we think the Appellate Court's ruling in Tovish v. Gerber Electronics, 19 Conn. App. 273 (1989) cert. denied 212 Conn. 814 (1989) in which the Appellate Court held disclaimer language providing "[i]njury (heart attack) did not arise out of or in the course and scope of employment" satisfied Sec. 31-297(b)'s requirements as to specificity is dispositive of this issue. In the instant matter, the disclaimer filed by the respondents provided as its grounds for contest, "No history of an accident. Applicant's condition is a result of a pre-existing condition." (Claimant's exhibit B-2) Applying the standard accepted by the court in Tovish to the disclaimer in the instant matter, leads to the conclusion that the respondent's disclaimer was specific as a matter of law.
We therefore affirm the commissioner's April 9, 1992 ruling.
Commissioners Frank Verrilli and James J. Metro concur.