Opinion
CASE NO. 374 CRD-4-85
MARCH 24, 1988
The claimant was represented by Thomas F. Keyes, Jr., Esq.
The respondent was represented by Michael Belzer, Esq., Assistant Attorney General.
This Petition for Review from the December 26, 1984 granting of claimant's Motion to Preclude of the Commissioner for the Fourth District was heard May 30, 1986 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew P. Denuzze and Michael S. Sherman.
OPINION
Claimant widow's decedent, George Maher, had been employed by the State of Connecticut Department of Corrections from November 6, 1968 until retirement on September 1, 1976. On May 26, 1983 decedent died as result of cardiovascular disease. On October 28, 1983 the Department of Corrections received a certified mail Notice of Claim sent from the dependent widow alleging decedent's injuries occurred "while working for the Correctional Department as above, George Maher developed a condition of impairment of health caused by hypertension or heart disease and died on May 26, 1983 as a result of this condition"
Respondent's Notice of Intent to Contest Liability to Pay Compensation (Form 43) was filed November 25, 1983, stating "Respondents contend that the claimant did not sustain an occupational injury and that the claimant's unfortunate death was related to a previous health condition that was neither caused by or related to the employment". As the contest notice was more than twenty days after October 28, Claimant's Motion to Preclude was granted by the Fourth District on December 26, 1984.
Respondent has appealed contending; (1) service of the notice of claim was made by ordinary mail and was therefore not made in accordance with Sec. 31-321, C.G.S. and (2) the trial Commissioner lacked subject matter jurisdiction as the alleged injury occurred on or before September 11, 1976 and written notice of claim was not attempted until 1983.
There was evidence sufficient to sustain the trial Commissioner that notice was "sent by certified mail and received by the employer on October 28, 1983", i.e. U.S. return mail receipts. We will not substitute our findings for the Commissioner, Lemieux v. Highland Dairy Co., 121 Conn. 483 (1936).
As to the second issue raised, it is true that Sec. 31-294, C.G.S. requires a notice of claim of traumatic injury within a year, of an occupational disease within three years and of a death within one year of date of death. Pelletier v. Caron Pipe Jacking Inc., 13 Conn. App. 276 (January 19, 1988), cert. denied ___ Conn. ___ (February 25, 1988) has ruled that a Motion to Preclude under Sec. 31-297(b) will not lie if a notice is untimely on its face. Here that is not so as the notice certainly was within a year of the date of death. After all the claim at issue here is that of the dependent widow under Sec. 31-306, not that of the deceased employee. And her right to benefits did not vest until date of death, Broyoska v. Norwalk Lock Co., 8 Conn. Sup. 381 (1940). If the Respondent wished to argue that decedent's death was not related to any incident of employment, it should have asserted that defense within twenty days of October 28, 1983.
Therefore, the Commissioner's decision granting the Motion to Preclude is affirmed and the appeal is dismissed.
Commissioners Andrew P. Denuzze and Michael S. Sherman concur.