Opinion
CASE NO. 328 CRD-4-84
JULY 15, 1986
The claimant was represented by Donald C. Cousins, Esq.
The respondent was represented by Donal C. Collimore, Esq.
This Petition for Review from the June 5, 1984 Finding and Award of the Commissioner for the Fourth District was argued December 13, 1985 before a Compensation Review Division panel consisting of Commissioners Gerald Kolinsky, A. Paul Berte and Andrew P. Denuzze.
FINDING AND AWARD
1-11. Paragraphs 1 through 11 of the trial Commissioner's Finding and Award dated June 5, 1984 are made paragraphs 1 through 11 of this Division's Finding and Award.
The Order of the trial Commissioner granting the claimant-appellee's Motion to Preclude is adopted as the Order of this Division.
The appeal of the respondent-appellant is Dismissed. Pursuant to 31-301c(b), C.G.S., the respondent-appellant is Ordered to pay interest on all compensation due to the claimant-appellee at the rate of six percent per annum from June 5, 1984 to the date hereof.
OPINION
The parties herein, by written stipulation, agreed that the claimant became a member of the Fairfield Police Department in 1951, and that he retired from said Police Department in 1981. They further stipulated that the claimant was first diagnosed as having hypertension in the Spring of 1978; that he suffered transient ischemic attacks in October and December, 1978, each of which incidents resulted in his hospitalization; that he was aware of the nature and seriousness of his condition no later than December, 1978.
On or about September 2, 1983, the claimant sent a notice of claim for benefits under 7-433c of the Connecticut General Statutes for the first time, which notice was received by the respondent Town no later than September 6, 1983.
The respondent Town first filed documents in the Commissioner's office on or about October 7, 1983 in which the said Town claimed that the claimant's notice was late under 31-294, of the Connecticut General Statutes.
The claimant contended that the Town was precluded from contesting his claim by virtue of 31-297(b), of the Connecticut General Statutes, as said Notice of Contest by the Town was filed more than twenty days after receipt of his written notice of claim for compensation.
Upon the foregoing facts, the trial Commissioner granted the claimant's Motion to Preclude, and it is from the granting of such Motion that the respondent-appellant has appealed, alleging that the claimant-appellee's failure to file his claim for almost five years after he became aware of his condition of hypertension goes to the basic jurisdiction of the case, and that upon a claimant's failure to file a claim in a timely fashion, the Workers' Compensation Commission is without jurisdiction to hear and adjudicate such a claim.
The respondent relies upon 31-294 of the Connecticut General Statutes which provides in part, "No proceedings for compensation . . . shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease . . .", and cites Walsh vs. Waldron Sons, 112 Conn. 579 (1931) as dispositive of the issue that no jurisdiction existed due to such late filing which would allow the claim to be heard by the Commissioner.
The claimant stands on the decision of the Appellate Court in Bush vs. Quality Bakers of America, et al, 2 Conn. App. 363 (1984).
We are constrained by the doctrine of stare decisis, and as such, cannot agree with the respondent's contentions, nor do we feel this case to be distinguishable from the decision in Bush vs. Quality Bakers of America, supra.
The analysis in Bush, supra, by our Appellate Court, covered both issues of constitutionality and jurisdiction. As stated by the court at page 373, "Quality conceded compensability and jurisdiction to adjudicate the Bush claim when it failed to contest the initial claim. Any other interpretation of the Statute would gut the remedial purpose of the twenty day rule. The jurisdictional claim is illusory. By not contesting compensability, Quality waived any jurisdiction claim."
More recently, this Division has had occasion to again examine the requirements of 31-297(b), C.G.S., as the same impacts on the question of jurisdiction of Connecticut to deal with a compensation claim. In LaVogue vs. Cincinnati, Inc., 263 CRD-1-83 decided April 15, 1986 this Division held,
However, the basis of the Commissioner's ruling and the principal ground on which the appellees rely is the alleged lack of Connecticut jurisdiction. They maintain that the language of 31-297(b) is irrelevant and so also the cases interpreting that statute, Menzies v. Fisher, supra, Adzima v. UAC/Norden Div., supra, DeLeon v. Jacob Brothers, Inc., 38 Conn. Sup. 331 (1981), Cortes v. Allegheny Ludlum Steel Corp., 61 CRD-3-81, 1 Conn. Workers' Comp. Rev. Op. 173 (1982), Yuknat v. State of Connecticut, Case No. 274 CRD-2-83 (3/19/86).
In Menzies the employer had filed a timely disclaimer, but it simply stated `(w)e deny a compensable accident or injury.' The majority of the Supreme Court found that such a disclaimer failed to state `the specific grounds on which the right to compensation' was being opposed and therefore ruled that there was an irrebuttable presumption of compensability. The court stated:
. . . A general denial that a claimant has a compensable injury reveals no specific defense or reason why the claim is contested. Such a conclusionary statement would leave open numerous possible defenses, such as a defense of lack of employer-employee status, a defense that the death was due to suicide or to homicide or a claim that death was caused by an intervening injury . . .
Menzies v. Fisher, supra, 334.
Later in the same majority opinion:
. . . The amendment . . . adopted in 1967 embodies the recognition that it is within the employer's power to supply the answers to such questions . . . As a procedural rule, this part of the statute operates nevertheless substantively in requiring initial affirmative acts from an employer beyond those normally incident to a court proceeding . . .
Menzies v. Fisher, supra, 345.
As we discussed in Cortes, supra, the Menzies opinion in the language quoted above declared that 31-297(b) required the filing of a disclaimer whenever the defense was a denial of employer-employee status. Without such a status there can be no workers' compensation jurisdiction. Yet Menzies held that such a defense of lack of jurisdiction because of no employer-employee status must be specifically pleaded in a timely fashion if the employer wished to avoid the irrebuttable presumption of compensability under 31-297(b).
This Menzies holding was further strengthened by Bush v. Quality Bakers of America, supra. The Bush analysis demonstrated that the conclusive presumption of the 1967 amendment `does not conclusively presume any fact either jurisdictional or evidentiary.' Instead the statute conclusively presumes compensability if no specific defenses are filed in a timely manner. `The jurisdictional claim is illusory. By not contesting compensability, (it) waived any jurisdiction claim.' Bush v. Quality Bakers, supra, 373.
The plain and simple fact of the matter is that if and when a respondent feels it has jurisdiction to contest a claim under the provisions of the Workers' Compensation Act it must rigidly comply with the requirements of 31-297(b), of the Connecticut General Statutes, and its failure to do so cannot be excused under any pretext by later claiming lack of jurisdiction, or any other alleged defect in the claim.
The appeal of the respondent-appellant is dismissed.
Commissioners A. Paul Berte and Andrew P. Denuzze concur.