Opinion
CASE NO. 1074 CRD-3-90-7
APRIL 26, 1991
The claimant was represented by Daniel Lyons, Esq. and Kathleen S. Mass, Esq., Falcone Lyons, P.C.
The respondent was represented by James Pomeranz, Esq. and Jason Dodge, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the July 10, 1990 Finding on a Motion to Preclude of the Commissioner for the Third District was heard December 14, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Gerald Kolinsky and Angelo dos Santos.
OPINION
Respondent was conclusively presumed to have accepted compensability under Sec. 31-297(b), C.G.S. It has appealed the Third District ruling. Claimant was employed as a draftsman/illustrator by the respondent university. On June 9, 1987 due to symptoms of headaches and dizziness he sought treatment at the Yale Health Clinic. He stopped working June 12, 1987. The employer filed a Form 43 Notice of Disclaimer of Liability for compensation July 2, 1987. The Form 43 was not personally served nor sent by certified or registered mail. Subsequently claimant sent by certified mail a Form 30-C Notice of Claim received by the respondent and the Third District office August 3, 1987. The claimant's notice indicated a June 12, 1987 date of injury. There was no employer response to claimant's August 3 filing.
On claimant's Motion to Preclude the commissioner ruled that the respondent had failed to comply with the Sec. 31-297(b) requirement that a notice to contest needed to be served within twenty days in accordance with Sec. 31-321, C.G.S. He held that the July 2 Form 43 notice of contestment was not sent certified or registered mail as required by Sec. 31-321 and therefore the employer was precluded from contesting compensability.
On appeal the respondent contends it was improper to grant the Motion to Preclude defenses as (1) the Form 30-C notice failed to provide a date of injury, (2) the Form Failed to warn that a default would occur if Sec. 31-297(b) requirements were not met, (3) the employer's July 2 disclaimer complied with Sec. 31-297(b) and (4) the claimant intended to introduce evidence of causation other than those listed in his Form 30-C.
As to the first point respondent argues in order that the preclusive effects of Sec. 31-297(b) may be triggered, the claimant's notice of claim must strictly comply with the requirements of written notice set out in Sec. 31-294. We agree. See, e.g., Fuller v. Central Paving Company, 5 Conn. Workers' Comp. Rev. Op. 92, 665 CRD-7-87 (1988). Claimant's Form 30 C stated:
Sec. 31-297(b) provided in 1987:
(b) Whenever liability to pay compensation is 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. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee's right to receive compensation on any grounds or the extent of his disability.
Sec. 31-294 provided in pertinent part:
[N]otice 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 and the nature of such disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed.
Notice is hereby given that the undersigned, who while in the employ of Yale University at New Haven through 6/12/87 (last date of work) sustained injuries arising out of and in the course of his employment as follows: (State nature of injury in ordinary language). Mental impairment paranoid condition; psychological and emotional problems; hearing loss; lightheadedness stress; diminished sense of smell; ringing noise in head and ears. The aforestated injuries and conditions have been caused by the claimant's work environment; by vibrations and noises in the environment, by odors, chemicals and materials in the work environment, resulting in the claimant inability to work since 6/12/87.
The commissioner determined, that the language cited provided the requisite information on date of injury. Claimant's notice describes a repetitive trauma injury. Injuries due to repetitive trauma cannot be definitely located as to time and place. See Grady v. G L Oxygen Medical Co., 6 Conn. Workers' Comp. Rev. Op. 12, 572 CRD-6-87 (1988). The recitation in the Form 30 C of an inability to work since June 12, 1987 provided notice of the date of injury where, as here, the repetitive trauma stopped when the work stopped.
Similarly, the respondent's failure to warn or the due process argument is not persuasive. Our decision in Guinan v. Direct Marketing Association, Inc., 7 Conn. Workers' Comp. Rev. Op. 93, 734 CRD-7-88-5 (1989), appeal dism'd for lack of final judgment, 21 Conn. App. 63 (1990); appeal reinstated 22 Conn. App. 515 (1990), aff'd 23 Conn. App. 804 (1990) (per curiam), is on point. There is no violation of due process if the claim notice does not include a warning. The employer is presumed to know the law's requirements.
Respondent argues Sec. 31-321 requirements should not be applicable in the instant matter. Our decision in Skorupski v. Commercial Union Insurance Co., 2 Conn. Workers' Comp. Rev. Op. 133, 338 CRD-3-84 (1985) clearly holds that notices of contest must be sent in accordance with the procedures set out in Sec. 31-321. See also, Ebrech v. Cadbury Schweppes, Inc., 6 Conn. Workers' Comp. Rev. Op. 120, 687 CRD-7-88-1 (1989); Ricci v. Peabody N.E., Inc., 6 Conn. Workers' Comp. Rev. Op. 54 (1988).
Finally, the employer's fourth issue is a puzzling one. The notice of claim presented a prima facie case by including the information that Sec. 31-294 requires. If an employer fails to contest with sufficient specificity within the time allowed, the employer is defaulted under Sec. 31-297(b). The only evidence the employee needs to present thereafter is evidence on the amount of damages, as it were. Once the employer has filed to contest compensability as required by the statute, then any objections to the theories of causation listed in the Form 30 C are irrelevant.
We therefore conclude for all the reasons stated above the trial commissioner's ruling on the Motion to Preclude should be affirmed and the appeal dismissed.
Commissioners Gerald Kolinsky and Angelo dos Santos concur.