Kari v. Town of Wallingford

CASE NO. 1242 CRD-8-91-6

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 23, 1993

NELSON KARI

CLAIMANT-APPELLANT

v.

TOWN OF WALLINGFORD

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Paul Ranando, Esq. Law Offices of Edward T. Dodd, Jr., 182 Grand Street, Waterbury, CT 06702.

The respondent was represented by Richard T. Stabnick, Esq., and Margaret Corrigan, Esq. both of Pomeranz, Drayton and Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-9412.

This Petition for Review from the May 29, 1991 Finding and Dismissal of the Commissioner for the Eighth District was heard April 24, 1992 before a Compensation Review Board panel consisting of the then Commission Chairman, John Arcudi and Commissioners Robin Waller and Angelo L. dos Santos.

OPINION

JOHN ARCUDI, COMMISSIONER. Claimant’s appeal contests the commissioner’s denial of preclusion and the irrebuttable presumption of compensability under Sec. 31-297(b). The commissioner ruled that the respondent employer had filed a timely disclaimer of liability, Form 43, and that the defenses included in the disclaimer were sufficiently specific to avoid invoking the statutory presumption of liability.

Claimant had been employed by the Town of Wallingford Board of Education as a business manager from November 6, 1986 until discharged March 8, 1990. He filed a claim for compensation May 23, 1990 alleging he suffered “emotional disorder; physical and mental stress, anxiety; aggravation of pre-existing hypertension; depression; stress disorder, due to repetitive stress occurring between May 24, 1988 and March 8, 1990.” Respondents’ notice of contest filed with the Eighth District June 7 and with the claimant June 11, 1990 stated:

“Injury did not arise out of or occur during the course of employment; Injury/illness is not an occupational disease; Formal notice of claim not file (sic) with th(sic) with the manner prescribed by the statute; No medical substantiation to support illness/injury; Said injury/illness arose out of the claimant/employee’s own deliberate misconduct; At the time of said injury/illness, claimant/employee was engaged in a frolic of his own making.”

Although the notice of contest did not specifically allude to the circumstances surrounding claimant’s discharge, the evidence before the commissioner showed that claimant had received a criminal conviction because of improper activities in his position as business manager. He was charged with two counts of presenting false information to the Town Council and one count of wilfully destroying financial documents. He was acquitted on the first two counts but convicted on the last count despite the fact that the Superintendent of Schools and a Board of Education member had advised him to destroy the documents.

The trier found, “The investigation of said events, and claimant’s subsequent arrest and conviction, as well as the entire computer deal, caused the claimant to suffer from emotional stress and anxiety; the investigation of these events started in 1988 and was ongoing through 1989, and resulted in newspaper publicity, Town Council investigation, telephone calls to claimant’s home, etc.” Paragraph #9. He then found that claimant was discharged after the criminal conviction.

An employer’s notice of contest under Sec. 31-297(b) needs to list specifically stated defenses, Menzies v. Fisher, 165 Conn. 338 (1973). More recently our Appellate Court in Tovish v. Gerber Electronics, 19 Conn. App. 273 (1989) held that a disclaimer of liability stating “Injury (heart attack) did not arise out of or in the course and scope of employment” met the specificity of defenses criteria and was sufficient so that Sec. 31-297(b) preclusion did not lie.

Under the Tovish rule this employer’s notice or contest was clearly sufficient to comply with the employer’s burden imposed by Sec. 31-297(b). See e.g., LoRusso v. State of Connecticut, 9 Conn. Workers’ Comp. Rev. Op. 158, 1059 CRD-5-90-6 (1991); Marchesseault v. J.P. Guerrera, 9 Conn. Workers’ Comp. Rev. Op. 133, 982 CRD-5-90-2 (1991). Therefore claimant’s appeal on this ground cannot be sustained.

We affirm the Eighth District and dismiss claimant’s appeal.

Commissioners Robin Waller and Angelo L. dos Santos concur.