Opinion
CASE NO. 340 CRD-7-84
MARCH 8, 1988
The claimant was represented by John J. Graubard, Esq.
The respondents were represented by Edward D. O'Brien, Jr., Esq.
This Petition for Review from the July 31, 1984 Finding and Dismissal of the Commissioner for the Seventh District was heard April 4, 1986 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Andrew P. Denuzze.
OPINION
No real dispute here exists as to the occurrence of Claimant's injury August 22, 1978. What is disputed is whether the notice sent complied with Secs. 31-294 and 31-321, C.G.S. The trial Commissioner found Claimant's attorney mailed such a notice by ordinary mail September 18, 1978 to the Respondent-Employer. The record indicates no further proceedings until Claimant's attorney requested an informal hearing March 31, 1981.
Such a hearing was scheduled for November 24. On November 30 the respondents filed a Form 43, "Notice of Intention to Contest Liability to pay Compensation" stating the injury "Did not arise out of employment. Not reported within 1 year statutory limit" Claimant moved to preclude defenses under Sec. 31-297(b), C.G.S. as the disclaimer was not filed within twenty days after the September 18, 1978 notice of claim.
The Commissioner dismissed the employee's claim ruling that the 1978 notice was not served in accordance with Sec. 31-321. The conclusion thus reached did not necessitate any finding as to whether the notice of claim was ever received by the respondents or any ruling on Claimant's Motion to Preclude. Although not so articulated in the Finding, it is clear the dismissal of the claim was based on this tribunal's holding in Timothy v. Upjohn Co., 150 CRD-3-82, 2 Conn. Workers' Comp. Rev. Op. 1 (1983). But we do not agree that necessitated the result below.
Upjohn concerned the relationship between Sec. 31-321 and Sec. 31-297(b), not between Sec. 31-321 and Sec. 31-294. Sec. 31-297(b) and Sec. 31-294 have different purposes as found by the Appellate Session of the Superior Court in 1981:
"Among its other purposes, two obvious functions of Sec. 31-294 are to advise the employer of the fact that his employee has suffered a job-related injury and to limit his liability to those injuries that are reported in a timely fashion . . . . On the other hand, Sec. 31-297(b) is designed for the protection of the employee. The statute was amended to ensure (1) that employers would bear the burden of investigating a claim properly and (2) that employees would be timely apprised of the specific reasons for the denial of their claim.
The fact that the employer's interest in this case was protected under Sec. 31-294 without the requirement of a timely written notice of claim does not compromise the employee's right to know under Sec. 31-297(b) whether his employer was contesting his compensation claim. Although both statutes refer to a notice of claim, their respective purposes are different. The fact that a written notice of claim was not required to fulfill the requirements of Sec. 31-294 did not relieve the employer from the burdens imposed by the provisions of Sec. 31-297 (b) after a written notice of claim was furnished."
De Leon v. Jacob Bros., Inc., 38 Conn. Sup. 331, 336-337 (1981) (citation omitted).
Beside the different statutory objectives recognized in De Leon, it is also important to note the actual wording employed in the two laws. Sec. 31-294 speaks of "notice of claim (being) given" while Sec. 31-297(b) prescribes a default judgment against the employer if he fails to file specific reasons for contest within twenty days "after he has received a written notice of claim". There is a considerable line of authority in the law of contract that a contract is made when acceptance of an offer is deposited in the U.S. mail by ordinary mail. That rule would seem to apply here that "notice is given" when so deposited in the U.S. mail.
Sec. 31-321 instead concerns the "Manner of serving notices" The noun "service" and the corresponding verb "to serve" are words of art in the legal lexicon. This concept necessarily implies that on completion of the art of service, the person served has, or in the ordinary course events should have, actual knowledge of the matter contained in the "written not". Because the twenty-day period in Sec. 31-297(b) does not begin to run until the notice is received by or actually served on the employer, this tribunal determined in the Upjohn case that Sec. 31-321 applied to that preclusion statute. Equity also prescribed that default should enter only after the strictest formal procedural considerations were followed.
But the Sec. 31-294 written notice of claim does not encompass the same formality or "sudden death" notion of liability. That law itself includes three methods of nonwritten constructive notice. We must therefore remand this matter to the Seventh District. If the Commissioner there finds that notice was given by ordinary mail, then as we stated, Claimant may "pursue her claim and . . . establish liability on the part of the respondents by more traditional methods of proof", Timothy v. Upjohn. supra, at 3.
The appeal is sustained and the matter is remanded to the Seventh District for further proceedings consistent with this opinion.
Commissioners Robin Waller and Andrew P. Denuzze concur.