Opinion
CASE NO. 1137 CRD-2-90-11
FEBRUARY 19, 1992
The claimant was represented by Robert Fitzgerald, Esq., Asselin Assoc.
The respondent was represented by John W. Greiner, Esq., Murphy Beane.
This Petition for Review from the November 9, 1990 Ruling on Motion to Preclude Defense Pursuant to Sec. 31-297(b) of the Commissioner for the Second District was heard August 16, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Gerald Kolinsky and Andrew Denuzze.
OPINION
Respondent's appeal is from the commissioner's ruling granting claimant's motion to preclude defenses and establishing a conclusive presumption of compensability. The parties stipulated to the facts. On September 20, 1988 while in the employ of the respondent employer claimant sustained a myocardial infarction. A Form 30C Notice of Claim was served on the Second District Commissioner as provided in Sec. 31-294 and Sec. 31-321 June 21, 1989; the Form 30C Notice of Claim was served on the respondent employer June 22, 1989. The employer served a Form 43 Notice of Contest (disclaimer of liability) July 5, 1989 on the Second District, but the disclaimer was not served on the claimant until July 15, more than twenty days after respondent received the Notice of Claim.
The commissioner ruled Sec. 31-297(b) then required that the Notice of Contest must be served within twenty days upon both the commissioner and the claimant. The commissioner also found that Public Act 90-116, Sec. 9 requiring that a Notice of Claim contain a warning provision as to the preclusive effects of Sec. 31-297(b) had no retroactive application to this 1988 injury.
Public Act 90-116, Sec. 9 provides: Sec. 9. Subsection (b) of section 31-297 of the general statutes, as amended by public act 89-31, is repealed and the following is substituted in lieu thereof: (b) Except as provided in subsection (c) of this section, whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee's right to receive compensation on any grounds or the extent of his disability, PROVIDED THE EMPLOYER SHALL NOT BE CONCLUSIVELY PRESUMED TO HAVE ACCEPTED COMPENSABILITY WHEN THE WRITTEN NOTICE OF CLAIM HAS NOT BEEN PROPERLY SERVED IN ACCORDANCE WITH SECTION 31-321 OR WHEN THE WRITTEN NOTICE OF CLAIM FAILS TO INCLUDE A WARNING THAT THE EMPLOYER SHALL BE PRECLUDED FROM CONTESTING LIABILITY UNLESS A NOTICE CONTESTING LIABILITY IS FILED WITHIN THE TIME PERIOD SET FORTH IN THIS SECTION.
Sec. 31-297(b) then provided: (b)Whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee's right to receive compensation on any grounds or the extent of his disability.
The issues on appeal are: (1)does the twenty day requirement for the filing of a Notice of Contest with the commissioner also apply to the copy of the Notice required to be sent to the claimant and (2)should P.A. 90-116, Sec. 9 have retrospective application to an injury occurring before its passage?
As to the first issue Sec. 31-297(b) did in 1988 require service upon both the commissioner and the claimant within twenty days, Butkus v. Town of Bethlehem, 4 Conn. Workers' Comp. Rev. Op. 153, 421 CRD-5-85 (1988). See also, De La Torre v. State, 2 Conn. Workers' Comp. Rev. Op. 95, 148 CRD-1-82 (1984). Statutes are to be considered as a whole. State v. Gonzalez, 210 Conn. 446 (1989). They are to be construed so as to give effect to the intent of the legislature. State v. Delafose, 185 Conn. 517 (1981). The intent of the 1967 legislature in enacting Sec. 31-297(b) was declared by Menzies v. Fisher, 165 Conn. 338, 343 (1973) as follows:
The object which the legislature sought to accomplish is plain. Section 31-297(b) was amended 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.
The second part of that Menzies excerpt defining the objective of Sec. 31-297(b) and its preclusion of defenses demonstrates that the twenty day window for the notice of contest applies equally to the notices sent to the commissioner and to the employee. To adopt respondent's interpretation of that statute would be contrary to the law's objectives as defined by Menzies.
Respondent's second argument seeks to give retroactive application to the 1990 amendment which enlarged the deadline for filing notices of contest from twenty days to twenty-eight. DeAlmeida v. M.C.M. Stamping Corp., 1097 CRD-7-90-8, 1139 CRD-7-90-11 (December 30, 1991) is directly on point. In DeAlmeida, we held Sec. 9, Public Act 90-116 affected a substantive right and should not be applied retroactively. Nothing argued by the respondent persuades us to change that holding.
We therefore affirm the trial commissioner's Nov. 9, 1990 Ruling on the Motion to Preclude and dismiss respondent's appeal.
Commissioners Gerald Kolinsky and Andrew Denuzze concur.