Opinion
CASE NO. 878 CRD-2-89-6
SEPTEMBER 27, 1990
The claimant was represented by Richard F. Nicoll, Esq., RFD.
The respondents were represented by James Pomeranz, Esq. Jason Dodge, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the June 12, 1989 Finding and Dismissal of Motion to Preclude of the Commissioner for the Eighth District acting for the Second District was heard April 27, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Thomas White, Jr. and James Metro.
OPINION
The Eighth District acting for the Second District denied claimant's Motion to Preclude file pursuant to Sec. 31-297(b). Claimant's attorney had sent a letter via certified mail dated June 8, 1988 addressed to General Dynamics Corporation, Pierre Laclede Center, St. Louis, Missouri 63105, attn: Juliana R. Wright. That letter stated the following:
Your letter of January 29, 1988 to Mr. Joseph J. Rogers of 29-3 Hill Street, Meriden, Ct 06450, has been turned over to me for response. Please be advised that I will seek compensation for Mr. Rogers' mental injuries and stress suffered in the course of and arising out of his employment by you at Groton, Connecticut on November 30, 1987. These injuries have continuously disabled Mr. Rogers form gainful employment since that date.
Mr. Rogers has apparently received no word about the Accident Sickness benefit alluded to in your letter. Would you please advise of the status and provide me with any claims material. I am enclosing a blanket authorization signed by Mr. Rogers. Thank you for your anticipated response.
Very truly yours,
Richard F. Nicoll.
The respondents did not file a disclaimer within twenty days of the receipt of that letter. The trial commissioner denied the claimant's Motion to Preclude on two bases; (1) the June 8, 1988 letter from claimant's attorney stated that the claimant "will seek [compensation] . . . (underscoring added) without stating that the form of compensation sought was Workers' Compensation" and (2) the purported notice of claim "was mailed to the employer's place of business within the state, at Groton."
Although the commissioner made no mention of it in his ruling, the employer had filed a disclaimer of liability February 25, 1988 some three and one half months before June 8. The disclaimer was served by certified mail in accordance with Sec. 31-321, C.G.S. and filed in the 2nd District office February 26, 1988. That fact was conceded by counsel for claimant. (TR, 3/8/89, p. 9) We have ruled that a proper employer disclaimer though filed before claimant's written notice of claim may comply with Sec. 31-297(b) and therefore avoid preclusion of defenses. See Elmassri v. Vinco, Inc., 5 Conn. Workers' Comp. Rev. Op. 96, 584 CRD-7-87, (6/2/88), Lopez v. Peerless Aluminum Foundry, 6 Conn. Workers' Comp. Rev. Op. 46, 654 CRD-4-87 (10/18/88). In the present matter the disclaimer contested liability as there was a "Question of accident, injury, repetitive trauma or occupational disease arising in and out of the course of employment as relates to stress, anxiety or any other psychiatric disorder."
We find the February 26 filing to be a proper disclaimer which accomplished the purpose of Sec. 31-297(b) by promptly notifying the employee that his claim was being contested and apprising him of the grounds of that contest. Therefore there is no need for us to review the bases on which the trier below denied the Motion of Preclude.
Although our conclusions are based on grounds other than the trial commissioner's, we affirm his decision and dismiss the claimant's appeal.
Commissioners A. Thomas White, Jr. and James Metro concur.