Opinion
CASE NO. 805 CRD-2-88-12
MAY 8, 1990
The claimant was represented by Robert M. Fitzgerald, Esq., Asselin Associates.
The respondent was represented by John Greiner, Esq., Murphy Beane.
This Petition for Review from the December 20, 1988 Ruling on Motion to Preclude of the Commissioner for the Second District was heard February 2, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and James Metro.
OPINION
Respondent attacks the Second District Ruling granting claimant's Motion to Preclude. It argues that the notice of claim fails to satisfy the requirements of Sec. 31-294 C.G.S., and that the commissioner should have taken evidence before granting the Sec. 31-297(b) remedy.
We note various grounds of error in the Reasons of Appeal filed April 7, 1989. The above reflects the issues as argued by the respondent in its brief and as the arguments include the various allegations of error we have summarized them as noted above. See Brief for Respondent-Appellant at 2.
As to the first issue, Sec. 31-294 requires,
[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.
In the instant case the Notice of Claim stated:
Notice is hereby given that the undersigned, who while in the employ of General Dynamics Corp./Electric Boat Division at Groton, Ct on the 20th day of August, 1986 sustained injuries arising out of and in the course of his employment as follows: (state nature of injury in ordinary language.)
Repetitive act/repetitive trauma including, but not necessarily limited to daily stress and/or injury resulting from cardiomyopathy and causing heart damage from which Albert Dorsett died on August 20, 1986 claims compensation in her interest.
The undersigned is of full age
Dated at Willimantic, Connecticut this 19th day of January, 1987.
Ruth Dorsett 259 Brandegee Avenue Groton, CT 06340
Respondent contends the notice was defective because no address was given for the deceased employee. Ruth Dorsett, the claimant, widow of the decedent, sought dependency benefits pursuant to Sec. 31-306, C.G.S. Those details concerning her statutory status as a dependent are not specifically identified in the notice quoted above. However, the statute does not require as notice the equivalent of a legal pleading. It simply requires a description of the "nature of the injury", "the date and place" of accident or manifestation of occupational disease symptom and the "nature . . . or of such disease." Seemingly, the respondent concedes the notice does contain those items.
What is alleged to be omitted is the "address of the employee." But the notice does give the "name and address . . . of the person in whose interest compensation is claimed". The notice, received January 21, 1987, also contains the name of the widow's decedent, Albert Dorsett, the deceased employee of the respondent and his date of death, August 20, 1986. Respondent's assertion that Sec. 31-297(b) preclusion will not lie unless the notice of claim lists the address of a person dead for five months could lead to interesting albeit futile speculations. What is a dead person's address? Is it the place where he drew his last breath? Here since decedent's date of injury is the same as the date of death, that place was probably the workplace itself or the hospital to which the deceased employee was taken. Or is the deceased's address the cemetery where his remains lie? Merely to pose the questions is to demonstrate the inanity of the exercise.
Rather it is not a non-existent address of a deceased employee which the statute requires in the notice of claim. It is the address of the person in whose interest the compensation is claimed, i.e. the widow. Her address is clearly included in the notice reproduced above. Sec. 31-294 only requires the address of the employee when the employee is alive.
Respondent's next contention concerns the statute of limitations provisions of Sec. 31-294 as interpreted in Pelletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276 (1988) cert. denied 207 Conn. 805 (1988). Pelletier held preclusion would not lie when the written Notice of Claim was given in 1983 for an alleged work-related heart attack eight years before in 1975. As noted in Wagner v. Texaco Refining Marketing, Inc., 7 Conn. Workers' Comp. Rev. Op. 14, 637 CRD-1-87 (1989), in Pelletier the notice of claim was untimely on its face. Here the notice of claim was untimely on its face. As stated in Deck v. Groton, 745 CRD-2-88-6 (December 12, 1989) heart attacks have "been treated in the language of our definition statute, Sec. 31-275(8), as an injury `which may be definitely located as the time when and the place where the accident occurred'" (citations omitted). Id.
The notice of claim in the instant matter was filed January 21, 1987 five months after the August 20, 1986 date of injury. This complies on its face as being within the one year or two year limitation period prescribed by the statute in cases of death. Since Pelletier held that compliance with the statute of limitations is a jurisdictional prerequisite, respondent further argues that the commissioner should have permitted evidence of an alleged previous heart attack sustained by the decedent. The apparent purpose of the evidence sought to be proffered was to try to establish an earlier date of injury so as to argue that the January 21 notice was untimely.
"Repetitive act/repetitive trauma" and "heart damage" are the words describing the nature of injury in this widow's notice of claim. We have held that in a repetitive trauma injury, the injury process is not completed until the last day worked. Pich v. Pratt Whitney, 4 Conn. Workers' Comp. Rev. Op. 163, 354 CRD-6-84 (1988). The limitation period begins to run on that date or on the date when the first known manifestation of a disabling symptom occurs, Boutin v. Industrial Components, 4 Conn. Workers' Comp. Rev. Op. 19, 237 CRD-6-83 (1987). Here that date was August 20, 1986. The second phrase employed in the notice of claim, "heart damage" comprehends the statutory definition of an accidental injury definitely located in time and place, Stier v. Derby, 119 Conn. 44 (1934), Jones v. Hamden, 129 Conn. 532 (1942). August 20, 1986 is again the date when the limitation period with respect to that nature of injury begins to run. Consequently, and contrary to the situations in Pelletier, this notice of claim facially complies with the jurisdictional element comprised in the Sec. 31-294 limitation periods. For that reason there was no reason for the commissioner to take evidence concerning the jurisdictional facts. The commissioner had jurisdiction over the employment res, Castro v. Viera 207 Conn. 420 (1988), and such jurisdiction was not liminally deniable because of failure to comply with time limitations.
We, therefore, for all the reasons stated above affirm the Second District Commissioner's ruling on the claimant's Motion to Preclude.
Pursuant to Sec. 31-301c(b) we grant interest at the rate permitted by statute on any amount for which the respondent was liable upon the trial commissioner's ruling in this matter and which was unpaid during the pendency of this appeal.
Commissioner Frank Verrilli and James Metro concur.