Summary
In Timothy v. Upjohn, 2 Conn. Workers' Comp. Rev. Op. 1, 150 CRD-3-82 (1983), dism'd on other grounds, 3 Conn. App. 162 (1984), we held that in order for a claimant to prevail on a Motion to Preclude the claimant must comply with Sec. 31-321.
Summary of this case from Ricci v. Peabody N.E., Inc.Opinion
CASE NO. 150-CRD-3-82
FEBRUARY 25, 1983
The Claimant-Appellee was represented by Peter A. Kelly, Esq.
The Respondents-Appellants Upjohn Company, Aetna Life and Casualty and Continental National Insurance Company were represented by James L. Pomeranz, Esq.
The Respondents-Appellants Upjohn Company and Liberty Mutual Insurance Company were represented by Kevin J. Maher, Esq.
The Respondents-Appellants Upjohn Company and Royal Insurance Company were represented by Thomas H. Cotter, Esq.
This Petition for Review from the June 23, 1982 Decision of the Commissioner for the Third District, was argued November 19, 1982 before a Compensation Review Division Panel consisting of Commissioners John Arcudi, A. Paul Berte and Frank Verrilli.
FINDING AND DISMISSAL OF MOTION
1. Pursuant to proper notice to all parties, a hearing in the above captioned matter was held January 28, 1982.
2. This claim is brought by the widow-executrix of a deceased employee of Respondent Company who died from lung cancer, allegedly from occupational disease.
3. The issue presented here is Claimant's motion to preclude Respondent Company from contesting liability based upon its failure to provide timely notice of its intent to contest as prescribed by Section 31-297(b).
4. Claimant through counsel on December 21, 1976 mailed a letter to Respondent Company setting forth a claim for Workers' Compensation benefits on the basis that Claimant's husbands death from lung cancer on November 27, 1976 was directly attributable to his occupation and asked that the matter be referred to the company's Workers' Compensation insurance carrier.
5. The December 21, 1976 written notice of claim was not served personally or by registered or certified mail.
6. A disclaimer by Respondent Company was filed on March 17, 1977 alleging that Claimant died from lung cancer and that there was no evidence to support the allegation the lung cancer was related to his employment.
7. Claimant filed a motion to preclude and Respondent Employer opposed said motion.
8. The letter of December 21, 1976 was a written notice which identified the Claimant, recited the date of death, identified the alleged occupational disease and notified the employer that a workers' compensation claim was being initiated.
9. However that letter failed to comply with Section 31-321, C.G.S. concerning the manner of serving notices.
Therefore it is Ordered, Decreed, Awarded and Adjudged that Claimant's Motion to Preclude defenses is denied as the written notice was not served in compliance with Section 31-321, C.G.S.
OPINION
Claimant in this matter was a widow whose husband Roy Timothy was an employee of the Respondent-Employer Upjohn Company. Roy Timothy died of lung cancer November 27, 1976. On December 21, 1976 Claimant's counsel mailed a letter to the Respondent company alleging that Claimant's decedent's death from lung cancer was directly attributable to his work at Upjohn Company and claiming benefits under the Workers' Compensation Law.
This December 21, 1976 communication was not hand delivered nor was it sent by registered or certified mail. The Respondent filed a disclaimer on March 17, 1977 well after the 20 days period provided in Section 31-297(b). Therefore, the Claimant filed a Motion to Preclude the presentation of any defenses by Respondent. By decision of June 23, 1982 the Third District Commissioner granted Claimant's Motion to Preclude thus holding Respondent liable to pay benefits. The Respondent-Employer and Insurers have appealed this decision.
Respondents have listed four Reasons of Appeal. The first two attack the validity of Claimant's notice of claim under Sections 31-294 and 31-321, C.G.S. The third Reason alleges that the Commissioner lacked jurisdiction as there was no evidence presented of employment related injury or disease; and an allegation of Section 31-297(b)'s unconstitutionality is the fourth Reason of Appeal.
As we here sustain the first and second Reasons it is not necessary to discuss Reasons three and four; however, DeLeon vs. Jacob Brothers, 38 Conn. Sup. 331 (1982) affirming this Division's decision in 23-CRD-4-80, 1 Conn. Workers' Comp. Rev. Op. 3 would seem to be dispositive of them.
Section 31-321 C.G.S. prescribes the manner of serving notices under Chapter 568. Here it is admitted that the written notice was not made personally or by registered or certified mail. That omission in our view constitutes a fatal defect for Claimant's Motion to Preclude.
Sec. 31-321. Manner of serving notices. Unless otherwise specifically provided, or unless the circumstances of the case or the rules of the commission direct otherwise, any notice required under this chapter to be served upon an employer, employee or commissioner shall be by written or printed notice, service personally or by registered or certified mail addressed to the person upon whom it is to be served at his last-known residence or place of business. Notices in behalf of a minor shall be given by or to his parent or guardian or, if there is no parent or guardian, then by or to such minor.
Balkus vs. Terry Steam Turbine, 167 Conn. 170, 178, Footnote 7 (1974) addresses the issue of written notice. In order for a Claimant to prevail on a Motion to Preclude under 31-297(b) there must first be a proper written notice of claim. If Section 31-321 is to have any effect at all, then certainly a 31-294 written notice on which a 31-297(b) irrebuttable resumption of liability is to be predicated for failure to plead specific defenses within twenty days must be served with all the technical formalities prescribed in that section of the statutes. Section 31-297(b) basically creates a legal mechanism to attain forfeiture of defenses, a default for failure to plead. The law cannot favor such a forfeiture or default without a strict compliance with all the technical requirements preceding it.
Claimant argues that since it is here admitted the notice was actually received, a defect in the mode of delivery should not vitiate its effect. She cites that part of Section 31-294 which holds that a defect or inaccuracy in the notice of claim shall not be a bar to maintenance of the proceedings unless the employer was prejudiced by the defect or inaccuracy. We disagree; that part of Section 31-294 does not here apply. In this case there was no defect or inaccuracy in the notice itself. The defect was in the service of the notice, i.e. the failure to comply with the statute concerning the manner of service.
The Claimant's Motion to Preclude must therefore be denied. However, she will still be free to pursue her claim and to establish liability on the part of the Respondents by more traditional methods of proof.
The decision of the Commissioner is reversed and the matter is remanded for further proceedings in conformity herewith.