Summary
In Pickard v. Manchester Gardens Condominium Ass'n Inc., 10 Conn. Workers' Comp. Rev. Op. 216, 1331 CRD-1-91-9 (1992), we upheld the trial commissioner's denial of preclusion where the notice of claim listed a date for the claimant's alleged back injury and the evidence before the commissioner revealed uncertainty regarding that date.
Summary of this case from Quinn v. KnappOpinion
CASE NO. 1331 CRD-1-91-9
DECEMBER 17, 1992
The claimant was represented by Frank W. Russo, Esq., Berman Russo.
The respondent employer was represented at the trial level by John Nagle, Esq. However, no one appeared for the respondent employer at oral argument nor was a brief filed on their behalf.
The Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General.
The original September 13, 1991 Decision Re: Claimant's Motion to Preclude identified Travelers Insurance Co. as a party. The Travelers was represented at the trial level by Robert Cullen, Esq. However, the Travelers was released by stipulation of the parties.
This Petition for Review from the September 13, 1991 Decision Re: Claimant's Motion to Preclude of the Commissioner at Large acting for the First District was heard March 13, 1992 before a Compensation Review Board panel consisting of the then Commission Chairman, John Arcudi and Commissioners Frank Verrilli and Donald H. Doyle.
OPINION
Claimant's appeal contests the trial commissioner's denial of preclusion under Sec. 31-297(b). The commissioner held that claimant's written notice of claim did not sufficiently satisfy the technical requirements of Sec. 31-294 to trigger the preclusive effects of Sec. 31-297(b).
Fuller v. Central Paving Company, 5 Conn. Workers' Comp. Rev. Op. 92, 665 CRD-7-87 (1988) held that for preclusion to lie, the written notice of claim must strictly comply with the technical requirements set out in Sec. 31-294. Sec. 31-294 provides, "Such notice . . . shall state, in simple language, the date and place of the accident and the nature of the injury resulting therefrom. . . ." Here the written notice stated the date of injury was April 28, 1989. The commissioner found "that the claimant has not sufficiently established a date of injury for his alleged back trauma claimed as work related vis-a-vis his written notice . . . used as the basis of his Motion to Preclude." See Paragraph #11. As the date of injury is an essential requirement of a Sec. 31-294 written notice, the failure to establish that date as it appeared on the notice was the commissioner's basis for denying preclusion and the accompanying irrebuttable presumption of compensability.
Ordinarily, a commissioner need not inquire beyond the face of the documents submitted on a motion to Preclude. See e.g., Wagner v. Texaco Refining Marketing, Inc., 7 Conn. Workers' Comp. Rev. Op. 14, 637 CRD-1-87 (1989). But if a question is raised that the specific elements of notice required under Sec. 31-294, through fraud or mistake, are not as stated, the trier may make inquiry beyond the facial allegations of the written notice. Cf. Laprade v. Robbins, 4 Conn. Workers' Comp. Rev. Op. 100, 505 CRD-7-87 (1987).
In Menzies v. Fisher, 165 Conn. 338, 343 (1973) our Supreme Court stated the public policy basis of Sec. 31-297(b) preclusion was
to ensure (1) that employers would bear the burden of investigating a claim promptly and (2) that employees would be timely apprised of the specific reasons for the denial of their claim. These effects would in turn, diminish delays in the proceedings, discourage arbitrary refusal of bona fide claims and narrow the legal issues which were to be contested.
To investigate promptly a claimed injury, an employer certainly needs to know the precise date of that injury. As the date here alleged on the notice may not have been correct, it was proper for the commissioner to take evidence testing the accuracy of the asserted date. When that evidence revealed uncertainty about the date's accuracy, a sufficient basis existed for the commissioner to deny the preclusion of defenses.
As we have found that the denial of preclusion was proper on the grounds stated above, we need not consider the other points raised in respondents' argument.
We, therefore, affirm the commissioner's September 13, 1991 ruling denying preclusion and deny claimant's appeal.
Commissioners Frank Verrilli and Donald H. Doyle concur.