Opinion
CASE NO. 274 CRD-2-83
MARCH 19, 1986
The Claimant-Appellant was represented by David J. Morrissey, Esq.
The Respondent-Appellant was represented by Robert G. Girard, Esq., Assistant Attorney General.
This Petition for Review from the October 17, 1983 Ruling On Motion To Preclude Defense Pursuant To 31-297(b) C.G.S. of the Commissioner for the Second District was argued April 27, 1984 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Gerald Kolinsky and Frank Verrilli.
FINDING AND DECISION ON MOTION
The Commissioner's decision on the Motion To Preclude Defenses is affirmed and adopted as this Division's Finding and Decision.
OPINION
Seemingly the issues which Respondent-Appellant seeks to raise here were laid to rest by the Appellate Court in Bush v. Quality Bakers of America, 2 Conn. App. 363 (1984). But lawyers as a group seem always reluctant to occupy new ground even if the legislature mandates it. Hence the Appellant's brief cites Rehtarchik v. Hoyt Messinger Corporation, 118 Conn. 315 (1934), for the proposition that unless the Workers' Compensation tribunal has subject matter jurisdiction, it may not entertain a motion to preclude defenses under 31-297(b) C.G.S.
31-297(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 State of Connecticut bases its appeal on the alleged insufficiency of the notice of claim filed on behalf of the claimants, the dependent widow and child pursuant to 31-294 C.G.S. The claimants' decedent in this matter was a captain of the Connecticut State Police. He died January 8, 1981 due to cardiorespiratory arrest as a consequence of liver failure. On January 7, 1982 a statement was filed with the Second District Commissioner and also with the colonel commanding the State Police. This statement contained a declaration that it complied with 31-294 C.G.S. as a "written notice of claim for compensation and necessary medical, hospital and incidental expenses during the lifetime of the decedent along with that to which the presumptive dependents are so entitled." Accompanying this statement were several other papers including a copy of the death certificate stating date, place and cause of death. The State filed a disclaimer April 15, 1982 too late to comply with the twenty day deadline imposed by 31-297(b) C.G.S. Respondent argues since the January 7, 1982 statement did not allege the nature of the injury or disease or that said injury or disease was employment related, it was defective. It concludes the argument with the proposition that a proper and timely notice of claim is a jurisdictional prerequisite and therefore the alleged defective notice could not confer jurisdiction.
31-294. Notice of injury and of claim for compensation. . . . No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident . . . Such notice may be given to the employer or the commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting therefrom, or the date of the first manifestation of a symptom of the occupational disease and the nature of such disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed . . .
A simple answer to appellant's contention is that the dependents' notice of claim together with attached documents gave the Commissioner and the employer all the information required by 31-294, and the totality of the papers submitted cured any omission. But such an answer, although correct, really begs the question. As Bush clearly stated: "The jurisdictional claim is illusory. By not contesting compensability, ". . . the employer "waived any jurisdiction claim." . . . Bush v. Quality Bakers, supra, 373.
The Bush opinion relied on Menzies v. Fisher, 165 Conn. 338 (1973) and quoted extensively from DeLeon v. Jacob Bros. Inc., 38 Conn. Sup. 331 (1981), appeal dismissed 456 U.S. 952 (1982). These three cases emphasized the legislative intent of the 1967 General Assembly in enacting 31-297(b). One principal purpose was to eliminate "needless prejudicial delays in the proceedings." The Rehtarchik, supra, rationale is no longer relevant once the employer failed to comply with the twenty day deadline imposed by the 1967 enactment. The legislature had set the parameters of the Commissioners' jurisdiction in 1913 when the law was created. They expanded those parameters when they made workers' compensation mandatory upon the employer in 1959, Thomas v. Carpenter Technology, 247 CRD-4-83, 2 Conn. Workers' Comp. Rev. Op. 127 (1985). Before 1959 the employer could either choose to be covered for workers' compensation or continue to permit his employees to sue at common law. In 1967 the jurisdiction was expanded even more for those employers who failed to file disclaimers within twenty days of written notice.
Thus the only current validity Rehtarchik enjoys today fifty-two years after it was written is an illustration of the proposition that a statute in derogation of the common law must be strictly construed. However the statute to be strictly construed is not the 1934 statute but the present one with its 1959 and 1967 amendments. That present statute does not permit an employer to contest compensability unless he files a disclaimer within twenty days of written notice of claim. This the employer has failed to do in the instant matter.
Therefore the appeal of the employer is dismissed and the Finding and Decision of the Second District Commissioner is affirmed.
Commissioners Gerald Kolinsky and Frank Verrilli concur.