Opinion
CASE NO. 1281 CRD-5-91-8
SEPTEMBER 14, 1992
The claimant was represented by James P. Brennan, Esq., Carmody Torrance.
The respondents were represented by Richard T. Stabnick, Esq., and Anne Zovas, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the August 12, 1991 Memorandum Ruling on Claimant's Motion to Preclude of the Commissioner for the Fifth District was heard March 13, 1992 before a Compensation Review Division panel consisting of the then Commission Chairman, John Arcudi and Commissioners Frank Verrilli and Donald Doyle.
OPINION
Respondents contest the Fifth District's granting the claimant's Motion to Preclude and the irrebuttable presumption of compensability under Sec. 31-297(b).
They claim: (1) the claimant's Form 30C Notice of Claim was not proper, and (2) claimant did not prove that the injury arose in and out of the course of employment.
Claimant was injured October 5, 1988. He filed a Form 30C Notice of Claim dated September 20, 1989. After the alleged injury but prior to the filing of a notice of claim, respondents submitted a Form 43 Notice of Intention to Contest Liability by certified mail received in the Fifth District on November 1, 1988. No Form 43 was sent to the claimant. The commissioner granted preclusion because the law requires the notice of contest to be filed with the claimant also.
Respondents argue that the written notice of claim was insufficient to satisfy Sec. 31-294 technical requirements because it stated claimant suffered "an intracerebral hematoma, fractured right parietal bone, [and] contusions", while he actually suffered from an intra-cerebral hemorrhage and not a hematoma. They rely on Fuller v. Central Paving Co., 5 Conn. Workers' Comp. Rev. Op. 92, 655 CRD-1-87 (1988) which ruled before the forfeiture provisions of Sec. 31-297(b) may lie, a claimant's written notice of claim must strictly comply with the requirements specified in Sec. 31-294. Their basic contention is that the "inaccurate" notice does not satisfy those requirements.
We disagree. Shira v. National Business Systems, 8 Conn. Workers' Comp. Rev. Op. 140, 840 CRD-6-89-4 (1990) appeal dismissed on other grounds 25 Conn. App. 350 (1991) held Sec. 31-294 does not require a medical diagnosis. Shira, therefore requires us to reject the argument that the notice of claim was improper.
In Shira, supra, the respondents contended that the claimant's notice of claim which characterized the claimant's nature of injury as "partial blindness" was defective and could not trigger the preclusive effects of Sec. 31-297(b) as there was medical evidence indicating that the claimant suffered from "ocular sardosis" (sic). Id. at 141.
Shira also requires that respondents' second argument must fail. That argument holds that a claimant must prove compensability before preclusion will lie. Shira states:
Absent fraud in the notice of claim, a motion to preclude will be without the taking of evidence if the documentation is otherwise proper. If the respondents wished to contest the nature of injury whether it arose out of the employment, they were obligated to file their defenses within the time period mandated by Sec. 31-297(b). The only defenses which survive the elapsed disclaimer time are jurisdictional ones. Castro v. Viera, 207 Conn. 420 (1988), Pelletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276 (1988). These defenses are liability defenses. To compel claimant to prove liability before claiming Sec. 31-297(b) preclusion would totally defeat that statute's legislative purpose.
Id. at 141. See also, Dealmeida v. M.C.M. Stamping Corp., 10 Conn. Workers' Comp. Rev. Op. 21, 1097 CRD-7-90-8, 1139 CRD-7-90-11 (1991), Datillo v. Yale University, 9 Conn. Workers' Comp Rev. Op. 118, 1074 CRD-3-90-7 (1991), Marchesseault v. J.P. Guerra, 7 Conn. Workers' Comp Rev. Op. 104, 850 CRD-5-89-4 (1989).
Therefore we dismiss respondent's appeal and affirm the trial commissioner's ruling on the claimant's Motion to Preclude.
Commissioners Frank Verrilli and Donald Doyle concur.