Opinion
CASE NO. 637 CRD-1-87
JUNE 23, 1989
The claimant was represented at the trial level by Jeffrey G. Schwartz, Esq., and on appeal by Ellen A. Conway, Esq., Tarlow, Levy, Harding Droney.
The respondents were represented by Jason Dodge, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the August 25, 1987 Ruling on a Motion to Preclude of the Commissioner for the First District was heard January 27, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew Denuzze and Frank Verrilli.
OPINION
Respondents have appealed the First District's August 25, 1987 ruling granting claimant's Motion to Preclude. Claimant had sent a written notice of claim by certified mail received by the employer June 10, 1986. No notice of contestment, Form 43, was filed by the employer until July 11, 1986 well after the twenty days permitted by Sec. 31-297(b) had elapsed. Granting that their Form 43 was filed late, respondents nonetheless attack the trial Commissioner's ruling, because the notice of claim on which the Motion to Preclude was based, did not sufficiently comply with the relevant portions of Sec. 31-294. Further citing Pelletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276 (1988), cert. denied 207 Conn. 805 (1988), they assert that the notice of claim on its face did not provide sufficient information to demonstrate that it was timely. Timeliness of notice is a necessary prerequisite to jurisdiction.
No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be. . . . Such notice may be given to the employer or any Commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting therefrom, or the date of the first manifestation of a symptom of the occupational disease.
The claim notice is as follows:
"To the Compensation Commissioner of the First Congressional District. To Texaco, Inc. of Riverside Drive, East Hartford, CT. Notice is hereby given that the undersigned, who while in the employ of Texaco, Inc. at East Hartford on the 17th day of December, 1984 sustained injuries arising out of and in the course of his employment as follows: (State nature of injury in ordinary language.)
Psychiatric occupational disease/anxiety reaction as a result of exposure and requirement for repeated exposure to night driving
claims compensation in his own interest.
The undersigned is of full age.
Dated at West Hartford, Connecticut this 4th day of June, 1986.
Robert A. Wagner (Signature of Injured Employee)"
We see no reason to reverse the commissioner's ruling in Finding #7 that this notice complied with Sec. 31-294. It gives the date and place of the accident "while in the employ of Texaco, Inc. at East Hartford on the 17th day of December, 1984. . ." It describes the injury. "Psychiatric occupational disease/anxiety reaction as a result of exposure and requirement for repeated exposure to night driving. It gives the claimant's address in a part of the notice not quoted above.
With respect to the jurisdictional claim, i.e. the notice was filed June 10, 1986 and the injury date is alleged to be December 17, 1984, one and one half years earlier, it is clear from the injury description that an occupational disease is being alleged. As early as 1927, our Supreme Court found compensable a disabling mental condition that was not "an accidental injury which may be definitely located as to . . . time . . . and place. . .," Wilder v. Russell Library, 107 Conn. 57 (1927). As we stated in Zipoli v. Watertown, 3 Conn. Workers' Comp. Rev. Op. 23, 25, 215 CRD-5-83 (1986):
"When Justice Maltbie wrote those words in 1927, the personal injury categories under the worker compensation law in 1927 only included accidental injury and occupational disease. The opinion indicated in a later paragraph that there was no traumatic injury involved in the Wilder disability and death. Hence, the only injury category then applicable was that of occupational disease."
Clearly then, on the face of the notice, the injury described is an occupational disease. As such under the 1980 amendments to Sec. 31-294, the limitation period for filing is three years. The June 10, 1986 filing for a December 17, 1984 injury is within the period, and the notice creates a sufficient jurisdictional basis for the commissioner to rule on preclusion.
The ruling of the commissioner is affirmed and the appeal is dismissed.
Commissioners Andrew Denuzze and Frank Verrilli concur.