Summary
In Fleming v. New Haven Register, 8 Conn. Workers' Comp. Rev. Op. 108, 827 CRD-5-89-2 (June 19, 1990), this board reversed a trial commissioner's denial of a Motion to Preclude where the commissioner had made findings as to the date the notice of claim was received by the employer, the injury date on the claim, and the date the claimant had stopped working.
Summary of this case from Lamberti v. Children's Discovery Center, Inc.Opinion
CASE NO. 827-CRD-5-89-2
JUNE 19, 1990
The claimant was represented by Dennis C. Murphy, Esq.
The respondents were represented by Richard Stabnick, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the February 14, 1989 Memorandum ruling on the Claimant's Motion to Preclude of the Commissioner at Large acting for the Fifth District was heard February 23, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and George Waldron.
OPINION
Claimant has appealed from the trial commissioner's denial of the Motion to Preclude contained in the following ruling:
Claimant has filed a Motion to Preclude.
On August 7, 1987 Claimant's employer received a Notice of Claim as did the Third District office in New Haven. The matter was disqualified to the Fifth District on September 29, 1987.
The claim recited an injury date of "April 1, 1986 to the present."
Claimant testified that his work place stress dated from June, 1984.
In April, 1986 Claimant was not working and had not worked since March 3, when his doctor put him out of work for three months.
The factual situation presented does not support a preclusion and the consequences that would flow from it.
THE MOTION IS DENIED.
The Notice of Claim in claimant's July 31, 1987 letter contained the following:
Notice is hereby given that the undersigned while in the employ of the New Haven Register at 40 Sargent Drive, New Haven, Connecticut sustained injuries arising out of and in the course of his employment as follows: -grand mal seizures on or about April 1, 1986 ultimately resulting in permanent brain damage; -anxiety, nervousness and severe depression and emotional distress on or about mid October, 1986 necessitating psychiatric treatment.
As the commissioner's ruling did not indicate specific reasons for denying preclusion, we needed to resort to the record and the parties' brief to ascertain the actual issues of the contest below. The insurer and employer respondent argued that the claimant was not working on April 1, 1986 and October, 1986, the dates of injury given in the attorney's July 31, 1987 letter mailed August 7. Moreover the respondents assert the attorney's letter did not characterize the injury as repetitive trauma and the notice itself was untimely as it was sent more than a year after the injury.
To counter those arguments claimant relates that he was hospitalized due to job stress in March of 1986, while in the hospital he suffered a grand mal seizure April 1, 1986 and a subsequent seizure April 7. He returned to work October 8, 1986 and suffered a severe attack of anxiety depression and emotional distress in mid-October while at work requiring that he be driven home. His last day worked was December 9, 1986, but his condition required that he be hospitalized again in January, 1987. He first learned that he had permanent brain damage March 31, 1987. Further there was uncontradicted testimony that respondents' contestment notice was sent by regular mail and not by registered or certified mail as required in Sec. 31-321, C.G.S. Finally, we learn from the record here that the notice of claim although mailed August 7 was not received until August 11.
The commissioner's ruling failed to address any of these issues. Did he treat the notice as one for repetitive trauma? If so, then the last day worked would be the date of injury. See Pich v. Pratt Whitney, 4 Conn. Workers' Comp. Rev. Op. 163, 354 CRD-6-84 (1988). If he considered it to be an accidental injury "definitely located as to the time when and the place where the accident occurred," then would not the mid October, 1986 injury at least be within a year of August 11, 1987 notice. In either case it would seem that the Pelletier v. Caron Pipe Jacking, Inc. 13 Conn. App. 276 cert denied, 207 Conn. 805 (1988) jurisdictional limitations would not apply. Finally, what specific fact in "the factual situation presented does not support a preclusion and the consequences that would flow from it"?
These questions demonstrate that it is impossible for us as an appellate tribunal to determine the legal basis for the trial commission's denial of preclusion. Without such specifics the meaningful review to which the parties are entitled is impossible.
We therefore remand the matter for further proceedings.
Commissioners Frank Verrilli and George Waldron concur.