Opinion
CASE NO. 540 CRD-7-86
AUGUST 16, 1988
The claimant was represented by Robert F. Carter, Esq., Carter, Rubenstein Civitello.
The respondents were represented by Bruce Levin, Esq., Mihaly Mihaly.
This Petition for Review from the December 15, 1986 Ruling on a Motion to Preclude of the Commissioner for the Seventh District was heard March 25, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and A. Thomas White, Jr.
OPINION
Respondents have appealed the Seventh District's December 15, 1986 ruling granting Claimant's Motion to Preclude. Pertinent facts found by the trial Commissioner show Claimant personally served a Form 30C Notice of Claim on the employer and the Seventh District Commissioner May 11, 1984. Respondent filed a Notice of Intention to Contest Liability, Form 43-67, with the Seventh District Commissioner and mailed a Form 43-67 to the claimant by regular United States mail. The trial Commissioner ruled that the Form 43-67 was timely but not served in the manner required by Sec. 31-321, C.G.S..
Sec. 31-321 provides: "Unless otherwise specifically provided, or unless the circumstances of the case or the rules of the commission direct otherwise, any notice required under this chapter to be served upon an employer, employee or commissioner shall be by written or printed notice, service personally or by registered or certified mail addressed to the person upon whom it is to be served at his last-known residence or place of business. Notices in behalf of a minor shall be given by or to his parent or guardian or, if there is no parent or guardian, then by or to such minor".
Respondents' disclaimer states the grounds of contest:
"Employee just now submitting claim for asthma, which he relates to working with various products between 1969 and 1979 when his asthma was diagnosed. Our contention is that this is a personal systemic problem, non `work related'. We further contend that as per section 31-294, of the Workmen's compensation act this claim was nor reported Timely within one year of the first known accident or symptom." (sic).
The Appellate Court's decision in Pelletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276 (1988), cert. denied, 207 Conn. 805 (1988), compels a remand to the trial Commissioner for further proceedings. Pelletier held that an employer could not be precluded under Sec. 31-297(b), C.G.S. from asserting a defense that a claim was not timely filed under Sec. 31-294, C.G.S. "Although Sec. 31-297(b) does not specifically refer to the timeliness of the written notice required pursuant to Sec. 31-294, the relationship between the two sections strongly suggests that Sec. 31-297(h) contemplates a timely notice given pursuant to Sec. 31-294." Id. at 280.
Since Respondents' contestment notice raised this Sec. 31-294 statute of limitations defense and since such a defense puts into question the Commissioner's jurisdiction to hear the case, the Commissioner below must hear evidence on and decide that jurisdictional issue before any further action. The appeal is sustained and the matter is remanded to the Seventh District for further proceedings consistent with this opinion.
Commissioners Frank Verrilli and A. Thomas White, Jr. concur.