Opinion
CASE NO. 148 CRD-1-82
AUGUST 6, 1984
The Claimant-Appellee was represented by William S. Zeman, Esq., and M. Jane Christensen, Esq.
The Respondent-Appellant was represented by Robert G. Girard, Esq., Assistant Attorney General.
This Petition for Review from the June 8, 1982 Finding and Award of the Commissioner for the First District was argued February 25, 1983 before a Compensation Review Division Panel consisting of Commissioners Gerald Kolinsky, Robin Waller and Frank Verrilli.
FINDING AND AWARD
1-20. Paragraphs 1 through 20 of the Finding and Award of the First District Commissioner are made paragraphs 1 through 20 of the Finding and Award of the Compensation Review Division.
21. A copy of aforesaid Form 43 was mailed to Amarilef Merino (Administratrix).
22. The first written notice of claim from the minor dependent, Delia Maria De La Torre, the actual claimant herein, received by the employer and described in paragraphs 14 through 16 herein was received June 25, 1980.
23-29. Paragraphs 22 through 28 of the Finding and Award of the First District Commissioner are made paragraphs 23 through 29 of this Division's Finding and Award.
30. It is found that the employer never filed a disclaimer of the claim of the minor dependent, the claimant herein.
31. Therefore under Section 31-297(b) since no disclaimer was filed addressed to this claimant's written notice of claim either before or after the expiration of the 20 day period of that statute, the compensability of this claimant's claim is conclusively presumed.
WHEREFORE IT IS ADJUDGED, DECREED, ORDERED AND AWARDED that respondent pay to the minor dependent claimant all compensation benefits to which she is entitled under Chapter 568, C.G.S.
OPINION
Claimant herein is the minor dependent child of the deceased Dencil De La Torre. Dencil De La Torre, the decedent, was employed by the State of Connecticut Board of Education and Services for the Blind as a driver. On the morning of February 21, 1980, he was directed to pick up mail and packages at the State Office Building. A short time thereafter, a Connecticut State Trooper came upon a State of Connecticut vehicle at rest against the guardrail at a point slightly south of the junction of Route 5 and 15 and I-95 northbound, in which the decedent was found unconscious lying on the front seat. The decedent was taken to Hartford Hospital at approximately 9:30 a.m. where he died at approximately 10:12 a.m. The cause of death was ruptured aneurysm of the left anterior descending coronary artery with cardiac tamponade. On the same date, February 21, 1980, the employer received a call from the State Police advising of the accident. Later that day, the employer determined that the decedent had died at Hartford Hospital.
This minor claimant was born September 11, 1974 to the decedent and his wife Berta. The parents became divorced December 20, 1978, and the mother Berta subsequently remarried and became Mrs. Berta Gonzalez. As a result of the divorce decree the decedent was under an order of the Superior Court to pay support for this minor child, the sole issue of the marriage.
On or about March 11, 1980, the employer prepared a Report of Accident or Occupational Disease to An Employee concerning the decedent's accident of February 21, 1980 listing the claimant as the decedent's only dependent. On May 12, 1980, a Form No. 43, Notice to Compensation Commissioner and Employee of Intention to Contest Liability to Pay Compensation dated May 5, 1980, was filed at the office of the Compensation Commissioner for the First District, giving "February 21, 1980, Hartford" as the date and place where injury occurred to the decedent, and further stated on the form "No written notice of claim" on the line requesting Date of Knowledge by Employer of Injury. A copy of this Form was mailed to Amarilef Merino, Administratrix. On June 23, 1980, the claimant minor dependent mailed a written claim for compensation, in accordance with Sections 31-294 and 31-321, C.G.S., to the Board of Education and Services for the Blind, by certified mail, return receipt requested, and she also mailed a copy of said claim to the Office of the Attorney General; said claims were received by the Board of Education on June 25, 1980 and by the Attorney General's Office on June 27, 1980. No disclaimer was ever sent to this claimant or her guardian. On this set of facts the Commissioner acted under Section 31-297(b) and conclusively presumed the compensability of this dependent's claims.
Section 31-297(b) C.G.S. 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.
It is from such order that the respondent-employer has appealed, giving as Reasons for Appeal that "a) decedent's Administratrix and the Commissioner received actual notice on or about May 5, 1982; b) said Administratrix suffered no prejudicial effect in receiving said notice at a time prior to a subsequent claim for compensation; c) said findings and conclusions impose upon respondent the performance of useless and redundant acts, namely filing the same notice of intention to contest after the written notice of claim was filed;" and d) the findings and conclusions were not based on evidence.
Claimant's rights herein accrue by virtue of Section 31-306, and exist by reason of the decedent's death. In Bassett v. Stratford Lumber Co., 105 Conn. 297 (1926) Chief Justice Wheeler said:
"In our own Act there is no specific provision that in any contingency any award under the Act shall become the property of the estate of the injured employee, nor is there provision giving the executor or administrator of the estate the right to secure by suit or otherwise the award or any part of it for the estate or for the dependent, . . . Our Act does not purport, either expressly or by necessary implication to confer in any case any right to the award upon any person other than the injured employee or his dependent," ibid, 299.
There is no identity of interest between the administratrix of the estate of the decedent and the minor dependent claimant. The estate has no property rights in whatever benefits may be due the claimant. Notice communicated to the administratrix is therefore not notice to the claimant. The facts here especially emphasize the divergence of interests between the administratrix and the minor dependent. That minor dependent had evidently been living with her mother apart from the deceased father for more than a year.
No notice of disclaimer was ever sent to the minor dependent claimant herein. It is consequently not necessary for us to rule on the other issue discussed by the District Commissioner and by the parties. We therefore do not decide whether a Section 31-297(b) notice of disclaimer addressed to the proper parties prior to the date that a claimant , files a Section 31-294 written notice may be sufficient to estop a conclusive presumption of compensability under the statute.
The Appeal is dismissed and the Finding and Award as modified is confirmed.
Commissioners Waller and Verrilli concur in this opinion.