Opinion
CASE NO. 705 CRD-5-88-3
AUGUST 16, 1989
The claimant was represented by Edward T. Dodd, Jr., Esq.
Respondents were represented by Daniel Beharry, Esq., and Richard P. Renehan, Esq., Gager, Henry Narkis.
This Petition for Review from the February 26, 1988 Decision On Motion To Preclude of the Commissioner for the Fifth District was heard May 19, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Robin Waller and Gerald Kolinsky.
OPINION
As the parties below agreed to submit the matter on stipulated facts, the issue decided by the fifth district commissioner' in his February 26, 1988 Order was a legal one. In that ruling he denied claimant's motion to preclude defenses under Sec. 31-297(b) because "no proper notice of claim was filed as required by statute."
Claimant's notice of claim received September 18, 1986 alleged that she "while in the employ of St. Mary's Hospital at Waterbury, Connecticut on 8/17/86 sustained injuries to her back out of the course of her employment. . . claims compensation in her own interest." The notice then gave claimant's name and address, 63 Laurel Woods Way, Woodbury, CT. It was signed by her attorney and furnished his office address also.
Sec. 31-294 requires that the notice of claim shall state "the date and place of the accident and the nature of the injury resulting therefrom and the name and address of the employee and of the person in whose interest compensation is claimed." The notice here contains all these elements. Respondents argue that the notice does not indicate the place of injury but rather that the words "while in the employ of St. Mary's Hospital at Waterbury Connecticut" only indicate the place of the employment not the place of the injury. We think respondents strain too much to arrive at such an interpretation of the clear language.
Next respondents contend that the words "sustained injuries to her back" do not sufficiently state "the nature of the injury." Such an argument was made in Pagan vs. Paparazzo, 6 Conn. Workers' Comp. Rev. Op. 38, 653 CRD-5-87 (1988). We there ruled that a notice of claim did not need to contain a medical diagnosis. Rather a simple statement of the part or parts of the body injured was sufficient to satisfy the "simple language" requirement of the statute. The language employed here therefore is sufficient to apprise the respondents "nature of the injury."
Since we disagree with the decision below and find that the notice of claim was a proper one, it becomes necessary for us to confront the other legal issues raised and not decided by the fifth district, i.e. the sufficiency of the disclaimer filed by the respondents by regular mail September 11, 1986 even before claimant's September 18, 1986 written notice of claim. The mere fact that the disclaimer was filed earlier than the written notice does not render it deficient, Elmassri vs. Vinco, Inc., 5 Conn. Workers' Comp. Rev. Op. 96, 584 CRD-7-87 (1988), Lopez vs. Peerless Aluminum Foundry, 6 Conn. Workers' Comp. Rev. Op. 46, 654 CRD-4-87 (1988). However, the disclaimer was not filed in person or by certified or registered mail and therefore did not comply with Sec. 31-321, Timothy vs. Upjohn, 2 Conn. Workers' Comp. Rev. Op. 1, 150 CRD-3-82 (1983), dismissed on other grounds, 3 Conn. App. 162 (1985), Skorupski vs. Commercial Union Ins. Co., 2 Conn. Workers' Comp. Rev. Op. 133, 338 CRD-3-84 (1985).
As the notice of claim was proper and no sufficient disclaimer was filed within the twenty days set by Sec. 31-297(b), preclusive of defenses lies, and there is an irrebuttable presumption of compensability.
Claimant's appeal is sustained and the matter is remanded to the fifth district for further proceedings consistent herewith.
Commissioners Robin Waller and Gerald Kolinsky concur.