Opinion
CASE NO. 1348 CRD-8-91-11
SEPTEMBER 1, 1993
The claimant was represented by Brian Doyle, Esq., Ferguson Doyle.
The respondents were represented by Brian Prindle, Esq.
The Petition for Review from the November 20, 1991 Finding and Award of the Commissioner for the Eighth 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.
The respondents have petitioned for review from the November 20, 1991 Finding and Award appealing from the Commissioner of the Eighth District's granting of the claimant's Motion to Preclude.
The pertinent facts are as follows. The claimant was a school teacher employed by the respondent, Middletown Board of Education. On or about April 9, 1990 the claimant through her attorney, Richard J. Kenny, Esq., of Howard, Kohn, Sprague and Fitzgerald filed a Notice of Claim for Compensation. That notice received by the respondent, Middletown Board of Education, on about April 11, 1990. The respondent insurer sent a Notice to Contest Liability to the Eighth District Commissioner via certified mail which was received on or about May 4, 1990. The respondent also sent via certified mail a Notice of Contest to Attorney Jule A. Crawford, which was received on May 4, 1990. Attorney Crawford, who represented the claimant on another legal matter, forwarded the notice to the claimant. The claimant received the notice of contest forwarded by Attorney Crawford on May 17, 1990.
The commissioner concluded that the respondents failed to comply with Sec. 31-297 (b) which provides:
Except as provided in subsection (c) of this section, whenever liability to pay compensation 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 in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. . . .
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."
Subsequent to oral argument in this matter, our Appellate Court rendered its opinion in Vachon v. General Dynamics Corp., 29 Conn. App. 654 (1992). In Vachon, the Appellate Court held that the time limitations provided in Sec. 31-297 (b) only applied to the notice of contest filed with the compensation commissioner. Thus, applying Vachon to the facts as stipulated to and found by the trier, we can only conclude that the respondents satisfied the time requirements set out Sec. 31-297 (b) and thus the respondents should not be precluded from asserting its defenses to the claim.
Specifically we note that Sec. 31-297 (b) provides, in pertinent part, "If the employer or his legal representative fails to file the notice contesting liability within the time prescribed [prescribed] herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right hereafter to contest the employee's right to receive compensation. . . ." After the Appellate Court's ruling in Vachon, it seems clear that "the notice contesting liability" referred to in Sec. 31-297 (b) in the sentence quoted, refers to the notice of contest filed with the commissioner and it is the failure to file that notice within the time period and manner set out in Sec. 31-297 (b) which triggers the preclusion of defenses.
We therefore reverse the commissioner's Finding and Award insofar as it grants the claimant's Motion to Preclude. However, as we noted in Timothy v. Upjohn, 2 Conn. Workers' Comp. Rev. Op. 1, 150 CRD-3-82 (1983) appeal dismissed for lack of final judgement [judgment] Conn. App. 162 (1985), the claimant is free to pursue her claim on the merits.
Commissioner Frank Verrilli and James J. Metro concur in this opinion.