Opinion
CASE NO. 653 CRD-5-87
SEPTEMBER 30, 1988
The claimant was represented by Jeffrey Dressler, Esq. assisted by paralegal, Anthony L. Ferreira.
The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the October 23, 1987 Memorandum Denying the Claimant's Motion to Preclude of the Commissioner at Large acting for the Fifth District was heard April 29, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and A. Thomas White, Jr.
OPINION
Another Sec. 31-297b, C.G.S. issue is here presented. The notice of claim dated September 12, 1986 sent certified mail return receipt requested is reproduced below. It stated the nature of injury as "Back, right shoulder, right arm, neck". Thereafter, the claimant filed a Motion to Preclude. The record does not show any disclaimer by the employer within twenty days. Acting for the Fifth District the Commissioner at Large denied the claimant's Motion to Preclude October 23, 1987. He held that claimant's notice did not describe the nature of the injury and thus, had no preclusive effect under Sec. 31-297(b), Timothy v. Upjohn, 2 Conn. Workers' Comp. Rev. Op. 1, 150 CRD-3-82 (1983), dism'd on other grounds, 3 Conn. App. 162 (1985).
Jeffrey Paul Dressler Attorney At Law ____________________________________________________ 77 Wadsworth Street Hartford, CT 06106 (203) 247-1122 September 12, 1986
Paparazzo Son, Inc. P.O. Box 7270 Prospect, CT 06712
Re: Claimant : ADRIAN PAGAN Address : 57 Cherry Street Waterbury, CT
Employer : Paparazzo Son, Inc. Address : P.O. Box 7270, Prospect, CT D/A : 8/11/86 P/A : Campion Associates (work site) Wallet Street, Winsted, CT Nature of Injury : Back, right shoulder, right arm, neck
Dear Sir/Madam:
On behalf of the above employee (and dependents) whom we represent, notice is hereby given of a claim for compensation, medical treatment, etc., under the Workers' Compensation Act as amended. The claimant(s) may be addressed care of our office.
Please forward employment records at your earliest possible convenience. Enclosed please find signed authorization.
If you have any further questions with respect to this matter, please contact this office.
Very truly yours,
Jeffrey P. Dressler Attorney at Law /neg Enclosures CERTIFIED MAIL # P 087 334 675
Claimant's appeal argues that the September 12, 1986 letter did satisfy the technical requirements of Sec. 31-297(b). As noted in Fuller v. Central Paving Co., 655 CRD-1-87, Zempel v. University, of Hartford, 592 CRD-1-87 and Mottoshiskie v. Stamford Iron Steel, 665 CRD-7-87 (decided June 2, 1988) the Appellate Court, Pelletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276 (1988), cert. denied, 207 Conn. 805 (1988), held Sec. 31-297(b)'s requirement of a written notice of claim referred to the written notice of claim requirements provided in Sec. 31-294, C.G.S. That statute declares a notice of claim, "[s]hall state, in simple language, the date and place of the accident and the nature of the injury resulting therefrom" (emphasis added). To resolve the issue here raised, we must determine what is meant by "nature of injury". Whenever we are required to consider a term otherwise undefined by statute, we are to construe the term "according to the commonly approved usage of the language"; Sec. 1-1, C.G.S. Webster's Third New International Dictionary 1507 (unabridged ed. 1971) defines "nature", inter alia, as "the essential character or constitution of something . . . the essence or ultimate form of something".
The Supreme Judicial Court of Maine, Pino v. Maplewood Packing Co., 375 A.2d 534 (Me. 1977) relied on the dictionary meaning cited above and held with respect to "nature of injury", "We think that this definition (Webster's) more readily fits a general description of the injury, i.e. damaged shoulder, than a specific diagnosis in connection therewith: tear of the rotator cuff." Pino, supra, at 537. Whether the words "Back, right shoulder, right arm, neck" satisfied the statute's nature of injury requirements is essentially a legal rather than a factual question. Since it is a legal question, do not think the holding in Fair v. People's Savings Bank, 207 Conn. 535 (1988) applies. There our Supreme Court quoted Cardillo v. Liberty Mutual Co., 330 U.S. 469, 477 (1947) and declared that a trial Commissioner's conclusion "supported by evidence and not inconsistent with the law. . . .", Fair, supra, 539, must stand.
In this case the facts, i.e. the words employed on the September 12, 1986 notice of claim, do not support the legal conclusion that such language fails to state the nature of injury. Similarly, the conclusion of the Commissioner is inconsistent with the law, i.e. the definition of that term in the statute. The law does not mandate that a claimant needs to articulate a medical diagnosis of his ailment in order properly to apprise his employer of the nature of injury. The words here employed in the notice of claim sufficiently informed the employer of the nature of the injury being claimed.
We therefore sustain the appeal and reverse the Commissioner below. The matter is remanded for further proceedings consistent with this opinion.
Commissioners Frank Verrilli and A. Thomas White, Jr. concur.