Pegolo v. Trueline Corporation

The claimant was represented by James F. Aspell, Esq., Law Offices of James F. Aspell, P.C., 345 North Main Street, Suite 311, West Hartford, CT 06117.

The respondents were represented by Laurie M. Moran, Esq., Williams Moran, LLC, P.O. Box 550, Fairfield, CT 06824.

This Petition for Review from the May 24, 2011 Finding and Decision of the Commissioner acting for the Fifth District was heard November 18, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Christine L. Engel.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has appealed from a Finding and Decision which determined that his claim was time barred as a result of noncompliance with § 31-294c C.G.S. We have reviewed the facts and the law herein and are satisfied that the trial commissioner reached an appropriate decision based on those relevant factors. The Finding and Decision is affirmed and the appeal is dismissed.

The trial commissioner reached the following Findings at the conclusion of the formal hearing. The claimant stipulated that a Form 30C was not filed within one year of his injury. He testified that he injured his back while in the course of employment on or about October 8, 2006. He further testified when he reported to work on the following Monday, he reported the injury to the staff at the office and made an appointment with his doctor. The claimant, Paul Pegolo, is the son of Roger Pegolo, owner of Trueline Corporation, which is the respondent company. The claimant was employed as a manager of the company and was a 10 percent owner of the respondent company in 2006.

The claimant testified that following the October 8, 2006 injury he treated with various medical providers through his health insurance company. He also testified that he did not contact the respondent’s workers’ compensation carrier until 2009. The claimant’s father, Roger Pegolo, testified he became aware that the claimant hurt his back but had not had any conversations with the claimant about filing a workers’ compensation claim. He also testified the claimant left the employ of the respondent in April of 2007. The trial commissioner found the First Report of Injury is dated October 13, 2009, and the first Hearing Request presented to the Commission was filed on December 30, 2009.

Based on the claimant’s testimony the trial commissioner concluded the claimant never intended to file a workers’ compensation claim in this matter and no timely written notice of claim was ever filed. The commissioner concluded the claimant did not qualify for any of the exceptions to notice under § 31-294c C.G.S.1 Therefore, the trial commissioner dismissed the claim.

The claimant filed a Motion to Correct, seeking to have the trial commissioner determine that the information provided the respondent about the injury constituted jurisdictionally sufficient notice. The trial commissioner denied this Motion in its entirety and the claimant has pursued this appeal. His argument is that based on precedent such as Spencer v. Manhattan Bagel Company, 5419 CRB-8-09-1 (January 22, 2010) the trial commissioner should have taken a “global” approach to determining whether the employer received notice that the claimant was intending to seek compensation for his injuries pursuant to Chapter 568. We do not agree as the facts in Spencer are substantially dissimilar to the case at hand.

In Spencer the claimant was injured at work and her supervisor, during the business day, later drove the claimant to his own chiropractor who rendered medical care for the injury. We concluded that based on these facts that the precedent in Gesmundo v. Bush, 133 Conn. 607 (1947) governed the case. The employer had actual knowledge of a work related injury and rendered medical care. In the present case, however, the claimant testified to an injury sustained while he was bringing a new machine into the shop on a day when the firm was not open for business. November 8, 2010 Transcript, pp. 12-14. The claimant also testified that he made arrangements to be treated for his injury on his own initiative through his chiropractor and his primary care physician. Id., pp. 15-16. The facts herein are simply too dissimilar with Spencer, supra, to afford weight to that precedent in this case.

The claimant also cites Verrinder v. Matthew’s Tru Colors Painting & Restoration, 4936 CRB-4-05-4 (December 6, 2006), appeal dismissed, A.C. 28367 (July 25, 2007) as supporting his belief the employer had actual notice of the intent to seek benefits. As the claimant views the case, since he was a partial equity owner of the respondent and advised the firm’s principal of his injury, this effectively served as a notice of claim. However, we find Verrinder actually supports the trial commissioner’s decision.

In Verrinder, the claim for benefits was filed by a sole proprietor who asserted he properly served himself with written notice and was acknowledged to have filed a timely Form 30C with this Commission. The claimant later filed a Motion to Preclude which was granted. The insurance carrier challenged jurisdiction on essentially equitable grounds and we denied their appeal as “[T]he workers’ compensation system in Connecticut is derived exclusively from statute . . . . A commissioner may exercise jurisdiction to hear a claim only under the precise circumstances and in the manner particularly prescribed by the enabling legislation. Cantoni v. Xerox Corp., 251 Conn. 153, 160 (1999), citing Discuillo v. Stone & Webster, 242 Conn. 570, 576 (1997).” Verrinder, supra. As noted previously, unlike the claimant in Verrinder the claimant in the present case stipulated he did not file a timely Form 30C.

We believe that Verrinder stands for the proposition that when someone in an ownership or management position for a respondent wishes to engage the jurisdiction of the Commission for a compensable injury, the appropriate means to do so is to file a timely Form 30C with the Commission. We also note that in the instant matter the trial commissioner specifically found facts that at the time of the injury the claimant specifically decided he did not want to engage the Commission’s jurisdiction. See Conclusion, ¶ A, and November 8, 2010 Transcript, p. 34.

Notwithstanding these findings, the claimant argues that sufficient notice existed that a claim would be filed; since the respondent did know of the injury and did pay for responsive medical care as a result of the claimant submitting his medical bills through his group health care policy. This argument is on all fours with the claimant’s argument in Miller v. State/Judicial Branch, 5584 CRB-7-10-8 (November 28, 2011), which this tribunal rejected. We find the present case indistinguishable from Miller and therefore extend stare decisis to that precedent.

In Miller, the claimant actually submitted a prompt First Report of Injury with his employer and subsequently treated for this injury and utilized his group health insurance carrier.2 The claimant did not request a hearing before the Commission or file a Form 30C within one year of the date of injury. The trial commissioner decided that the requirements of § 31-294c C.G.S. were not met and the Commission lacked jurisdiction over the injury. We affirmed the trial commissioner.

We also rejected the argument in Miller that the claimant’s use of group health insurance to pay for treatment of an allegedly work-related injury satisfies the “medical care exception” under the notice statute. While in Pernacchio, supra, we found being transported in an ambulance paid for by the respondent triggered this exception; “[o]n the other hand, we have held that if a claimant treats via a group health insurer and if ‘the claimant was using his employer’s medical facilities as a general health care provider through 1983, regardless of the origin of his ailments,’ the medical care exception to the statute was not met. Culver v. Cyro Industries, 4444 CRB-7-01-10 (February 21, 2003). The trial commissioner concluded the treatment the claimant received in this matter was through his group health carrier. The precedent in Culver argues against applying the medical care exception in this case.” Miller, supra. In the present case the claimant treated through his group health insurer for his injuries. Our precedent in Miller and Culver establishes that this, in and of itself, does not rise to the level of reaching the “medical care exception” to notice under § 31-294c C.G.S.

The claimant finally argues that the “totality of the circumstances” test promulgated in Hayden-Leblanc v. New London Broadcasting, 12 Conn. Workers’ Comp. Rev. Op. 3, 4, 1373 CRD-2-92-1 (January 5, 1994) should save his untimely claim. We note that in Hayden-LeBlanc the trial commissioner was persuaded by the claimant that the respondent had actual notice that she would be seeking benefits under Chapter 568. We upheld this conclusion. The trial commissioner in the present case was not persuaded by the claimant’s argument and we must extend every reasonable presumption in favor of this conclusion. Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). We also note that in our recent decisions we have applied Hayden-LeBlanc, supra, on occasion to confer jurisdiction on allegedly vague or irregular claims filed with the Commission. See Mehan v. Stamford, 5389 CRB-7-08-10 (October 14, 2009), aff’d, 127 Conn. App. 619 (2011), cert. denied, 301 Conn. 911 (2011) and Berry v. State/Dept. of Public Safety, 5162 CRB-3-06-11 (December 20, 2007).

However, as we pointed out in Miller, supra, citing Wikander v. Asbury Automotive Group, et al., 5586 CRB-4-10-9 (September 8, 2011), “we examined the effect of the failure of a party to file timely notice before our tribunal. We cited Chambers v. General Dynamics Corp./Electric Boat Division, 4952 CRB-8-05-6 ( June 7, 2006), aff’d, 283 Conn. 840 (2007) and Kuehl v. Z-Loda Systems Engineering, 265 Conn. 525 (2003) for the proposition that constructive notice is not sufficient to engage the jurisdiction of this Commission when a party does not adhere to the requirements of § 31-294c C.G.S.” Miller, supra. We find the claimant’s “constructive notice” argument in this case extremely similar to the “constructive notice” arguments the Supreme Court rejected in Kuehl, supra, and Chambers, supra. The trial commissioner determined the claimant did not intend to file a workers’ compensation claim and the respondent had not anticipated a claim would be filed. As this conclusion is based on evidence the trial commissioner found probative and persuasive we may not disturb it on appeal. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).4

In the absence of having filed a Form 30C in a timely fashion or having requested a hearing before this Commission in a timely fashion, the claimant was left to his proof before the trial commissioner that one of the exceptions to notice under § 31-294c C.G.S, was applicable. The claimant did not persuade the trial commissioner. We must respect his conclusion on this issue as it is consistent with our precedent. The Finding and Decision is affirmed and the appeal is dismissed.

Commissioners Scott A. Barton and Christine L. Engel concur in this opinion.

(a) 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 or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within the two-year period or within one year from the date of death, whichever is later. Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, or the date of the first manifestation of a symptom of the occupational disease and the nature of the disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. An employee of the state shall send a copy of the notice to the Commissioner of Administrative Services. As used in this section, “manifestation of a symptom” means manifestation to an employee claiming compensation, or to some other person standing in such relation to him that the knowledge of the person would be imputed to him, in a manner that is or should be recognized by him as symptomatic of the occupational disease for which compensation is claimed.

(c) Failure to provide a notice of claim under subsection (a) of this section shall not bar maintenance of the proceedings if there has been a hearing or a written request for a hearing or an assignment for a hearing within a one-year period from the date of the accident or within a three-year period from the first manifestation of a symptom of the occupational disease, as the case may be, or if a voluntary agreement has been submitted within the applicable period, or if within the applicable period an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as provided in section 31-294d. No defect or inaccuracy of notice of claim shall bar maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning the personal injury and was prejudiced by the defect or inaccuracy of the notice. Upon satisfactory showing of ignorance and prejudice, the employer shall receive allowance to the extent of the prejudice. BACK TO TEXT

2 In Miller v. State/Judicial Branch, 5584 CRB-7-10-8 (November 28, 2011), the claimant filed a timely First Report of Injury. The trial commissioner found in the present case this document was not filed until October 13, 2009, three years after the date of injury. Findings, ¶ K. BACK TO TEXT

3 We also find our precedent in Otero v. Bridgeport, 13 Conn. Workers’ Comp. Rev. Op. 248, 1713 CRB-4-93-4 (April 17, 1995) and Gaffney v. Stamford, 15 Conn. Workers’ Comp. Rev. Op. 257, 2219 CRB-7-94-11 (May 24, 1996) on point and support the trial commissioner’s decision herein. BACK TO TEXT