Opinion
CASE NO. 225-CRD-2-83
DECEMBER 23, 1986
Claimant was represented by Stephen C. Embry, Esq., O'Brien, Shafner, Bartinik, Stuart Kelly, P.C.
Respondents were represented by James L. Pomeranz, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the April 11, 1983 Finding and Award of the Second District Commissioner was heard March 30, 1984 before a Compensation Review Division Panel consisting of the Commission Chairman, John Arcudi and Commissioners A. Paul Berte and Andrew Denuzze.
OPINION
At issue here is whether the compensation rate and the law pertaining to an accepted 1961 compensable injury or a later rate and statute pertaining to events at work on September 11 and September 23, 1970 should govern the benefits due the claimant. Respondents argue that the 1970 happenings at work would arguably have been compensable injuries only if the claimant had complied with Sec. 31-294 and had filed a written notice of claim within a year, and he had failed to do this.
Claimant argues that the employer furnished medical attention for the 1970 events and that the Second District Commissioner on July 30, 1971 sent notice of a September 13, 1971 hearing, both facts coming within the exceptions to Sec. 31-294. The notice of the September 13, 1971 hearing referred only to "Injury sustained on November 1, 1961." However, the Commissioner's Memo of the hearing refers to the fact, that the carrier is paying at the 1961 rate plus cost of living while the claimant is contending that the rate should be higher and reflect the happening of a 1970 injury to the back. The Second District Commissioner agreed with the claimant's contention and awarded benefits based on the higher 1970 rate.
We agree with the finding below. There is a sufficient factual basis to find that Sec. 31-294 has been complied with by means of the two constructive notice exceptions. Respondents' contention that only the scheduling or the holding of a formal hearing can satisfy the Sec. 31-294 exception does not comport with the statute. Sec. 31-298 specifically mentions an "informal hearing" as do the Administrative Regulations, e.g. Sec. 31-296-2. Sec. 31-294 itself only refers to "hearing" and does not specify which kind of hearing.
For these reasons we affirm the Award and dismiss the appeal.
Commissioners A. Paul Berte and Andrew Denuzze concur.