Opinion
CASE NO. 840 CRD-6-89-4
AUGUST 16, 1990
The claimant was represented by Edward D. O'Brien, Esq.
The respondents were represented by Jeffrey G. Schwartz, Esq., Montstream May.
This Petition for Review from the March 27, 1989 Ruling on a Motion to Preclude of the Commissioner for the Sixth District was heard March 30, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and George Waldron.
OPINION
Respondents' appeal contends the Sixth District should not have granted claimant's motion to preclude defenses under Sec. 31-297(b). Their argument (1)that the Sec. 31-294 written notice of claim was defective and (2)there was no jurisdiction to hear the claim as no employee employer relationship was established as of June 3, 1985, the date of injury.
The first issue raised, deficiency of notice, alleges that claimant's characterization of the nature of injury "partial blindness", was inaccurate and therefore could not trigger the preclusive effects of Sec. 31-297(b). Respondents' brief states, the eye condition was "ocular sardosis" (sic) not partial blindness.
Our examination of the district file shows that Dr. Michael Simms of Waterbury gave the patient a presumed diagnosis of ocular sarcoidosis in a July 8, 1985 written report. We have ruled that a claimant need only state the nature of injury on a notice of claim in simple language. He is not obligated to supply a medical diagnosis, Pagan v. Paparazzo's Son, 6 Conn. Workers' Comp. Rev. Op. 38, 653 CRD-5-87 (1988) and Ebrech v. Cadbury Schweppes, Inc., 6 Workers' Comp. Rev. Op. 120, 687 CRD-7-88-1 (1989). That same July 8 report indicates that medication resulted in restoration of sight. Consequently, it may reasonably be inferred that the claimant at some point did have some loss of sight.
That particular report was not admitted into evidence. The respondents' proffer of evidence to prove a defect in the notice of claim was denied by the commissioner. We cannot characterize such an evidential ruling as error given the circumstances. Absent fraud in the notice of claim, a motion to preclude will lie without the taking of evidence if the documentation is otherwise proper. If the respondents wished to contest the nature of injury or whether it arose out of the employment, they were obligated to file their defenses within the time period mandated by Sec. 31-297(b). The only defenses which survive the elapsed disclaimer time are jurisdictional ones. Castro v. Viera, 207 Conn. 420 (1988), Pelletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276 (1988). These defenses are liability defenses. To compel claimant to prove liability before claiming Sec. 31-297(b) preclusion would totally defeat that statute's legislative purpose.
Finally we consider the assertion that there was no employment relationship at the time of injury. The record, claimant's Exhibit #4, shows a letter from the employer to the claimant dated June 7, 1985 terminating the employment status between them. On its face this document was proof that an employment relationship existed June 3, 1985, the date of injury. Therefore the jurisdictional requirements set forth in Castro, supra were satisfied.
We therefore affirm the sixth district commissioner's March 27, 1989 ruling on the Motion to Preclude.
Commissioners Robin Waller and George Waldron concur.