Reaves v. Brownstone Construction, Inc.

The claimant was represented by Kathy Boufford, Esq., Williams & Bellenot, 501 Main Street, Monroe, CT 06468.

The respondents were represented by Joseph Skelly, Esq., Edward Henfey & Associates, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.

This Petition for Review from the November 5, 1998 Decision Granting Claimant’s Motion to Preclude of the Commissioner acting for the Fourth District was heard May 21, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, COMMISSIONER. The respondents have petitioned for review from the November 5, 1998 Decision Granting Claimant’s Motion to Preclude of the Commissioner acting for the Fourth District. In that decision, the commissioner found that the claimant filed a claim for emotional distress which caused hypertension, and that the respondents failed to file a timely notice to contest said claim. On appeal, the respondents argue that it was improper for the trial commissioner to grant the claimant’s Motion to Preclude because § 31-275(16)(B)(ii) C.G.S. excludes mental and emotional impairments from being personal injuries under the Workers’ Compensation Act unless they result from a physical impairment or occupational disease.

Initially, we will address the claimant’s Motion to Dismiss the respondents’ appeal for failure to file a brief. Pursuant to Practice Book § 85-1, this board may dismiss an appeal for failure to prosecute with due diligence, including failure to file a timely brief. In the instant case, the respondents filed timely Reasons of Appeal, and the claimant filed an appellee’s brief based upon the Reasons of Appeal. Both parties presented their arguments at oral argument before this board. Section 85-1 allows for the discretion of the board in deciding whether to dismiss an appeal for failure to prosecute. See Schilling v. New Departure-Hyatt Division, 3290 CRB-6-96-3 (Aug. 4, 1997). In our discretion, we deny the claimant’s Motion to Dismiss.

The trial commissioner found that the claimant was employed by the respondent employer from August 6, 1997 to August 20, 1997. The claimant filed a Form 30C (Notice of Claim) with the appropriate Workers’ Compensation District Office on August 22, 1997. The claimant claims that on August 25, 1997, he mailed a duplicate of the Form 30C to the employer by certified mail, return receipt requested. The claimant testified that he lost the return receipt that would evidence his mailing to the employer, and instead the claimant submitted Postal Form 3800 (“Receipt for Certified Mail) which is date stamped August 25, 1997, and Postal Form 3849 which indicates a re-delivery of certified mail in August of 1997.1

The respondents denied receipt of the claimant’s Form 30C by certified mail. However, the trial commissioner found that the claimant established that he provided “proper notice and service”2 to the employer in August of 1997. (Finding ¶ 10). The trial commissioner found that the respondents did not contest the claim within twenty-eight days3 as required under § 31-294c, and thus held that the respondents were precluded from contesting liability.

Section 31-294c(b) provides, in pertinent part, that “an employer who fails to contest liability for an alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim and who fails to commence payment for the alleged injury or death on or before such twenty-eighth day, shall be conclusively presumed to have accepted the compensability of the alleged injury or death.” It has repeatedly been stated: “The purpose of the preclusion statute is to ‘ensure (1) the 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.’” Chase v. State, 45 Conn. App. 499, 503 (1997) (quoting Menzies v. Fisher, 165 Conn. 338, 343 (1973).

In support of their appeal, the respondents contend that the claimant’s claim falls within § 31-275(16)(B)(ii) C.G.S., which excludes from the definition of personal injury under the Workers’ Compensation Act a “mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease.” In the instant case, the trial commissioner specifically found that “No physical injury (trauma) is claimed, but rather elevated blood pressure and permanent partial disability is being alleged as due to harassment at claimant’s place of employment.” (Finding ¶ 7).

In Marandino v. Marandino’s, 3130 CRB-6-95-7 (March 20, 1997), aff’d., 48 Conn. App. 916 (1998) (per curiam), cert denied (7/2/98), the board held that in order to entertain a Motion to Preclude, the trier must first determine whether there is subject matter jurisdiction over the claim. The board explained:

Thus, in Marandino, the board affirmed the trial commissioner’s denial of the claimant’s Motion to Preclude where the trial commissioner found that there was no subject matter jurisdiction. Specifically, the trial commissioner found that the claimant had not elected to be covered under the Workers’ Compensation Act as sole proprietor. Similarly, in Chute v. Mobil Shipping and Transportation, 10 Conn. Workers’ Comp. Rev. Op. 183, 1321 CRD-7-91-10 (September 1, 1992), aff’d., 32 Conn. App. 16 (1993), cert denied, 227 Conn. 919 (1993), the board affirmed the trier’s denial of the claimant widow’s Motion to Preclude where the trier found that the claimant was an independent contractor rather than an employee.

In Cunningham v. Stamford, 3112 CRB-7-95-7 (Dec. 16, 1996), the board explained as follows:

In Cunningham, supra, there was no evidence to support the commissioner’s finding that the claimant’s injury (a stress related vocal disorder) fell within the definition of “personal injury.” Thus, the board held that a determination was needed regarding whether the requirements of subject matter jurisdiction had been met, and thus remanded the case to the trial commissioner for a determination of whether the claimant’s injury constituted a personal injury under § 31-275(16)(B)(ii) C.G.S.

In the instant case, the trial commissioner specifically found that there was no physical injury being claimed by the claimant, “but rather elevated blood pressure and permanent partial disability is being alleged as due to harassment at claimant’s place of employment.” (Finding ¶ 7). This finding of fact clearly indicates that the claim is excluded from the definition of “personal injury” under our Act pursuant to § 31-275(16)(B)(ii) C.G.S. See Biasetti v. City of Stamford, 250 Conn. 65 (1999). Moreover, even by looking only at the “four corners” of the Notice of Claim, the claim fails under § 31-275(16)(B)(ii) C.G.S. because it does not allege any physical injury.4 (See Findng ¶ 4 and 7). Accordingly, because the claimant’s injury was not covered under the Workers’ Compensation Act, the trial commissioner did not have subject matter jurisdiction over the claim, and was thus required to deny the Motion to Preclude. See Marandino, supra; see also Cunningham, supra.

Accordingly, we reverse the trial commissioner’s decision granting the claimant’s Motion to Preclude, and we dismiss the claim for lack of subject matter jurisdiction.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

2 Section 31-294c(b) references § 31-321 which provides in pertinent part: “Unless otherwise specifically provided. . . any notice required under this chapter to be served upon an employer, employee or commissioner shall be by written or printed notice, service personally or by registered or certified mail addressed to the person upon whom it is to be served at his last-known residence or place of business.” BACK TO TEXT

3 The respondents filed two Form 43s contesting liability dated October 31, 1997 and November 17, 1997. BACK TO TEXT

4 The decision in Del Toro v. City of Stamford, 3731 CRB-7-97-11 (October 22, 1999), is distinguishable from the case at hand because in that case the Notice of Claim was ambiguous regarding whether a physical injury was claimed in addition to a stress claim. Specifically, in Del Toro the majority explained that “On its face, the notice of claim filed by the claimant does not exclude a physical injury as the cause of his stress claim. It merely states, ‘officer involved shooting on 11-30-85.’” In contrast, in the instant case there is no physical injury alleged in the claimant’s Notice of Claim. BACK TO TEXT