Adzima v. UAC/Norden Division

• Court: Supreme Court of Connecticut
• Writing for the Court: Before COTTER; LONGO; In this opinion COTTER; BOGDANSKI
• Citation: 411 A.2d 924,177 Conn. 107
• Parties: Dorothy ADZIMA v. UAC/NORDEN DIVISION et al.
• Decision Date: 20 March 1979

Page 924

411 A.2d 924 177 Conn. 107 Dorothy ADZIMA
v.
UAC/NORDEN DIVISION et al. Supreme Court of Connecticut. Argued Nov. 9, 1978.
Decided March 20, 1979.

Page 925

[177 Conn. 108] Harold L. Rosnick, Bridgeport, with whom, on the brief, was Sigmund L. Miller, Bridgeport, for appellant (plaintiff).

George A. Downing, East Hartford, for appellees (defendants).

Before [177 Conn. 107] COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

[177 Conn. 108] LONGO, Associate Justice.

The plaintiff, widow of the deceased employee, Emil Adzima, appeals from a judgment of the Court of Common Pleas sustaining the finding and award of the workmen's compensation commissioner for the seventh district in denying benefits. The plaintiff's appeal challenges the denial of her motion to preclude the defendants from asserting a defense, and the denial of her motion to correct the findings of the commissioner.

The material facts are not in dispute: Emil Adzima was employed by United Aircraft/Norden Division, located in Norwalk, Connecticut. On January 4, 1972, he slipped on some oil and, to avoid falling, twisted his body completely around. As a result of the accident, a myelogram was performed on February 9, 1972; on April 13, 1972, Adzima decided to undergo the surgery recommended by his treating physicians to relieve the pain in his lower back. Despite the surgical intervention he continued to complain of pain. A second myelogram was performed on October 25 and on November 6 it was suggested by his treating physician that his pain could be relieved by further surgery. Adzima, however, refused to have further surgery up to and including November 19, 1972. On that day, Emil Adzima died as a result of a coronary occlusion which was unrelated to the accident. From the date of the accident until his death the defendant insurance company, on behalf of the employer, paid in full all benefits due the decedent under the Workmen's[177 Conn. 109] Compensation Act. It is undisputed that his injuries arose out of and in the course of his employment.

The record discloses the following evidence pertinent to the determination of the plaintiff's appeal. On December 11, 1973, approximately thirteen months following the employee's death, the plaintiff sent a written notice of claim to the employer and its insurer seeking $12,350 in benefits for disability due to a specific injury to the decedent's back under the provisions of § 31-308(m) ¹ of the General Statutes. On February 4, 1974, copies of the letters were sent to the compensation commissioner with a claim that the employer and the insurer were conclusively presumed to have accepted the compensability of Adzima's injury and that they were precluded from contesting the plaintiff's right to receive compensation or to contest the extent of Adzima's disability. At that time no disclaimer notice had been filed by the defendants with the commissioner in response to the plaintiff's notice to them of the disability claim

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for compensation. On April 21, 1975, the plaintiff filed with the commissioner a motion to preclude the defendants from contesting her claim, asserting that the employer failed to notify the commissioner of the specific grounds on which the right of compensation was contested, as required by General Statutes § 31-297(b). Following a formal hearing, pursuant to the provisions[177 Conn. 110] of General Statutes § 31-297(a), ² at which medical testimony was introduced on behalf of both parties, the commissioner denied the plaintiff's motion to preclude, rejected the plaintiff's substantive claim that the deceased had reached maximum improvement on or before October 10, 1972, and that he had sustained a permanent partial disability of 25 percent of his back, and dismissed the plaintiff's claim for additional compensation, stating that the plaintiff had failed to sustain the burden of proving that the decedent had reached maximum improvement before his death.

Upon the plaintiff's appeal from the decision of the commissioner, the Court of Common Pleas found that on February 2, 1972, the insurer sent to the injured employee an "agreement as to compensation," commonly called a "voluntary agreement," which the decedent did not sign and return; that the defendant insurer treated the claim as a compensable injury under the statute, and had made all payments of compensation and related medical bills to the date of death, and that as of that date the employee was under active treatment. The court concluded that, as the defendant had initially accepted liability to pay compensation, there was no contest which required notice pursuant to § 31-297(b). The court sustained the commissioner's finding and decision and dismissed the appeal. It is from that judgment that the plaintiff has appealed to this court.

[177 Conn. 111] I

We first address the plaintiff's claim that the compensation commissioner erred by refusing to preclude the defendant employer from contesting the plaintiff's right to receive compensation due to the defendant's failure to file any notice with the commissioner of an intention to contest liability or the extent of the deceased's disability. The plaintiff argues that that issue of preclusion is controlled by § 31-297(b) ³ of the General Statutes, and bases her claim upon this court's statements in Menzies v. Fisher, 165 Conn. 338, 347, 334 A.2d 452 (1973), in which we construed the provision of § 31-297(b), attaching a conclusive presumption to an employer's failure to file a notice contesting liability within the prescribed time limit. In Menzies we held (p. 347, 334 A.2d p. 457) that "the giving of notice by the employer as to the specific grounds on which the right to compensation is contested is a condition precedent to the defense of the action." The plaintiff argues that here, as in Menzies, the defendant employer's failure to contest the plaintiff's claims, as outlined in her letters of December 11, 1973 and February 4, 1974, conclusively[177 Conn. 112] precluded it from raising a defense to those claims. The plaintiff misinterprets the import of our decision in Menzies. Neither that case nor the provisions of § 31-297(b) were intended to apply to a situation

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where, as here, an employer accepts liability to pay a compensable injury, but contests only on the issue of the extent of the employee's disability.

Attention must be focused upon the precise facts of Menzies. In that case, the employer had contested the initial claim of the employee as to the employer's liability for compensation: the employer argued that the plaintiff's injury did not "arise out of and in the course of his employment." It was in this context a disclaimer of initial liability that we held that an employer was precluded from asserting a defense if it failed to specifically indicate grounds for a contest over liability. In the present case, however, the defendant employer issued to the employee, Adzima, a voluntary agreement, ⁴ as required by General Statutes § 31-296, acknowledging[177 Conn. 113] its initial liability to pay compensation, and, in accordance with this agreement, medical services were immediately provided and all compensation payments for disability were paid as directed by Adzima's treating doctors. It is thus evident that there was no "contest" by the employer of its "liability to pay compensation" falling within the purview of General Statutes § 31-297(b).

We have taken this occasion to again review the legislative history of § 31-297(b); see Menzies v. Fisher, supra, 341-47, 334 A.2d 452; to determine whether it is necessary or appropriate to extend the "conclusive preclusion of defense" provision of that statute beyond situations where an employer contests its initial liability to pay compensation, to a situation such as the present case, where the employer disputes only the extent of the deceased's disability. We have concluded that no such extension is warranted. First, the statute itself clearly delineates a distinction between liability and disability:...