RULING ON MOTION

The April 1, 1987 decision of the Seventh District Commissioner granting Claimant's Motion to Preclude Defenses is reversed. The appeal is sustained and the matter is remanded to the district for further proceedings.

OPINION

JOHN ARCUDI, Chairman.

Claimant's December 12, 1986 notice of claim alleging a compensable back injury November 15 and received by the employer December 15 is similar to the notices in Fuller v. Central Paving Co., 655 CRD-1-87, Zempel v. University of Hartford, 592 CRD-1-87, and Mottoshiskie v. Stamford Iron Steel, 665 CRD-7-87 (June 2, 1988). As in those cases, the worker's attorney failed to include Claimant's address in the notice. There is, however, one significant difference in the facts.

The employer on December 2, 1986 had sent the claimant and the commissioner by certified mail a properly completed Form 43-67, Notice of Intention to Contest Liability to Pay Compensation. This employer contestment notice contained both the items of information missing from the claimant's December 12 notice, i.e. the place of the accident and the address of the claimant.

We have already ruled in Fuller and the other cases decided this day that the claimant's Sec. 31-294, C.G.S. notice of claim must contain every element listed in that statute before the irrebuttable presumption of Sec. 31-297 (b), C.G.S. will be permitted. Claimant's notice here lacks two of those elements. Therefore, the Motion to Preclude should not have been granted by the Seventh District.

However, there is another reason why the Sec. 31-297 (b) remedy does not lie. In Skorupski v. Commercial Union Insurance Co., 338 CRD-3-84, 2 Conn. Workers' Comp. Rev. Op. 133, 135 (1985), we commented that a perfect employer disclaimer filed before a perfect Sec. 31-294 employee notice might be sufficient to satisfy Sec. 31-297 (b). The employer here filed such a perfect disclaimer ten days before the employee sent his notice of claim. This employee received that certified mail notice from his employer. He certainly then knew the employer was contesting compensability.

The situation thus created satisfies the objective of the 1967 legislation as defined in Menzies v. Fisher, 165 Conn. 338, 343 (1973): "The object which the legislature sought to accomplish is plain. Sec. 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".

Without question this employer had (1) investigated the claim promptly and had (2) timely apprised the employee of the reasons for denying his claim. The employer accomplished these two objectives as he must have received some notice that the employee was making a claim. To hold that only those employer Sec. 31-297 (b) contests issued after a perfect employee Sec. 31-294 notice are valid to bar the irrebuttable presumption would be a tortured reading of the statute and truly elevate form over substance.

For both reasons we have discussed the Seventh District should have denied Claimant's Motion to Preclude. The appeal is sustained and the matter is remanded for further proceedings.

COMMISSIONERS FRANK VERRILLI AND A. THOMAS WHITE, JR. concur in sustaining Respondents' appeal and remanding to the district, but COMMISSIONER VERRILLI does not agree with the last part of the opinion stating that the employer's December 2, 1986 contestment sent before Claimant's December 12, 1986 notice was properly filed to estop the Sec. 31-297 (b) presumption.