Ash v. Town of New Milford, 13348

• Decision Date: 31 May 1988
• Docket Number: No. 13348,13348
• Citation: 541 A.2d 1233,207 Conn. 665
• Court: Connecticut Supreme Court
• Parties: Robert J. ASH v. TOWN OF NEW MILFORD.

Page 1233

541 A.2d 1233

207 Conn. 665

Robert J. ASH v. TOWN OF NEW MILFORD.

No. 13348.

Supreme Court of Connecticut.

Argued April 6, 1988.

Decided May 31, 1988.

Ted D. Backer, Danbury, for appellant (defendant).

D. Randall DiBella, New Milford, for appellee (plaintiff).

Before PETERS, C.J., and ARTHUR H. HEALEY, CALLAHAN, GLASS and COVELLO, JJ.

GLASS, Associate Justice.

This is an appeal by the town of New Milford (town) from a decision of the compensation review division (review division) affirming an award of the workers' compensation commissioner (commissioner) for the seventh district. The claimants are Regina Gallo Ash and Robert J. Ash, the widow and minor child, respectively, of the decedent, Robert M. Ash, who were awarded workers' compensation benefits.

On the basis of stipulated facts, exhibits and testimony given, the commissioner made the following findings that are pertinent to this appeal: Robert M. Ash, the decedent, was employed by the town on May 25, 1984, as a regular member of its municipal police department, having been so employed since September 30, 1968. Prior to commencing his employment, the decedent had successfully passed a physical examination, which failed to reveal any evidence of hypertension or heart disease. On May 25, 1984, the decedent suffered a ruptured abdominal aortic aneurysm which resulted in his death. The decedent and Regina Gallo Ash were married on April 5, 1981, and were married and living together on the date of the decedent's death. The decedent had been married previously to Joanne Ash, whom he married on August 11, 1966, and from whom he was divorced on July 11, 1980. Robert J. Ash, claimant and issue of the decedent's first marriage, was born on March 24, 1969.

The claimant widow sent written notice of a claim for benefits, pursuant to General Statutes § 7-433c, ¹ to the town and the commissioner on June 4, 1984, and June 6 1984, respectively. On July 10, 1984, the town filed a "Notice to Compensation Commission and Employee of Intention to Contest Liability to Pay Compensation." On July 17, 1984, the claimant widow filed a motion to preclude the town from contesting her right to receive benefits. She claimed that she was the presumptive dependent spouse of the decedent and was entitled to benefits pursuant to § 7-433c, and that the town was precluded from contesting liability or the extent of disability by virtue of General Statutes § 31-297(b). ²

Written notice of a claim for dependency benefits in accordance with General Statutes §§ 7-433c and 31-306(a), ³ was given by the minor son on July 18, 1984. Pursuant to § 31-297(b), "A Notice of Intention to Contest Liability to Pay Compensation" was sent by the town on July 24, 1984, and received by the commissioner on July 25, 1984. The basis for the contest was that the decedent's cause of death was not within the scope of § 7-433c because the decedent had died as a result of a ruptured abdominal aortic aneurysm, and not from "heart disease or hypertension" as required by the statute.

The commissioner found that the notice to contest the minor son's claim was timely filed, but that the notice to contest the widow's claim was not filed in a timely manner. The commissioner determined that in accordance with § 31-297(b) the town was conclusively presumed to have accepted the compensability of her claim, and thereafter had no right to contest the presumptive widow's claim to receive compensation as a result of her husband's death. The commissioner also found that the preclusion available to the widow established the compensability of her claim as a dependent pursuant to § 31-306(a)(1). Further, the commissioner found that when a claim is determined to be compensable, all eligible claimants may receive benefits based upon such compensability. On the basis of these findings, the commissioner awarded compensation benefits to the widow and minor son of the decedent.

The town appealed to the review division, claiming that the commissioner erred in: (1) precluding the town from contesting compensability as to the decedent's minor son since he never moved to preclude the town from contesting his claim; and (2) failing to find that the decedent did not suffer a condition or impairment of health caused by heart disease or hypertension resulting in his death. The review division affirmed the finding and award of the commissioner and dismissed the appeal. Thereafter, the town appealed to the Appellate Court and, pursuant to Practice Book § 4023, the appeal was transferred to this court. On appeal, the town claims that the review division erred in holding that the granting of a motion to preclude an employer from contesting compensability of a claim as against one claimant barred an employer from contesting the compensability of a claim made by any other person arising from the same injury, where the employer filed a timely notice to contest the claim. We find no error.

The essence of the town's claim is that because the town filed a timely notice to contest the decedent's son's claim, the commissioner and the review division erred in holding that the town was barred from contesting the decedent's son's claim simply because it was precluded from contesting the widow's claim. The town argues that the son never filed a motion to preclude the town from contesting his claim, and that because the town's notice to contest compensability of the son's claim was timely filed, it was error for the commissioner to ignore the notice given by the town and to rely on a motion to preclude granted in another case on behalf of a different claimant. ⁴ In support of this argument the town relies on General Statutes § 31-294 which provides in pertinent part: "[A] dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation.... Such notice 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 therefrom ... and the name and address of the employee and of the person in whose interest compensation is claimed." (Emphasis added.) The town contends that because the decedent's widow filed a claim in her own behalf, under the statute her claim could not be used to claim compensation in the interest of any other person.

The validity of this argument depends upon the scope of General Statutes § 31-297(b). Under § 31-297(b), the commissioner determined and the review division agreed that unless an employer timely files a notice to contest a workers' compensation claim, there is an irrebuttable presumption that the claim is compensable. Specifically, § 31-297(b) provides in pertinent part: "If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee's right to receive compensation on any grounds or the extent of his disability." (Emphasis added.) Thus, under § 31-297(b) the employer's failure to provide a timely notice contesting liability triggers the conclusive presumption of acceptance of compensability for the employee's injury or death. General Statutes § 31-306 sets forth the various persons "conclusively presumed to be wholly dependent" upon the employee. We do not find any language in § 31-297(b) indicating that the injury or death of the employee must be determined separately or independently by each "conclusively presumed" dependent designated in § 31-306.

We recently interpreted § 31-297(b) in Castro v. Viera, 207 Conn. 420, 430-31, 541 A.2d 1216 (1988), where, quoting Menzies v. Fisher, 165 Conn. 338, 343, 334 A.2d 452 (1973), we stated: " 'The object which the legislature sought to accomplish [was] plain.... [It] was amended to ensure (1) that 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 claims. These effects would, in turn, diminish delays in the proceedings, discourage arbitrary refusal of bona fide claims and narrow the legal issues which were to be contested.' " We have also stated that "[w]e are mindful of the principles underlying Connecticut practice in workmen's compensation cases: that the legislation is remedial in nature; Kennerson v. Thames Towboat Co., 89 Conn. 367, 375, ...