Menzies v. Fisher

334 A.2d 452, 165 Conn. 338, 1973 Conn. LEXIS 742

Opinions

Shapiro, J.

These consolidated cases are appeals from judgments of the Superior Court, which dismissed appeals from a finding and award of the workmen’s compensation commissioner. The appeal of the plaintiff-widow, Euphemia Menzies, challenges the denial of an award of attorney’s fees and the denial of a motion which sought to preclude the defendants from asserting a defense. In the appeal of the defendants Everett Fisher and The Atlantic Companies, the fundamental issue is whether the injury which led to the death of John D. Menzies was one which arose out of and in the course of his employment.

The material facts are not in dispute: The plaintiff’s husband, John D. Menzies, was employed by Fisher as a chauffeur and handyman. Menzies lived in his own house, located in the northeastern area of Greenwich, but drove an automobile supplied by his employer to and from work at the Fisher residence, located in the northwestern area of Greenwich. This arrangement was convenient because Menzies sometimes was required to use the automobile at night to perform services for his employer.

In the late afternoon of October 1,1970, Menzies, having completed his normal workday, started to drive home from his employer’s residence in an automobile furnished for his use by his employer. He followed his usual route home until he stopped at the home of the Horst Von Hennings, personal acquaintances of his, with the purpose of picking up their mail. The Von Hennings’ home is situated on Stanwich Road in Greenwich, on a route Menzies normally took home from his place of employment, and their mailbox is located at the roadside. Menzies parked the automobile on a slight incline on Stanwich Road at the edge of the Von Hennings’ driveway and got out of the automobile. Before he reached the mailbox, the automobile rolled backward down the incline and over him. The automobile was later found against a stone wall situated about fifty feet south of the mailbox with its engine running, in reverse gear and with its parking brake on. Menzies was discovered by a passerby. He died three days later.

On these facts the commissioner awarded workinen’s compensation to the plaintiff, the widow of the deceased. The defendants claim that the facts do not support the conclusion that the injury was one “arising out of and in the course of his employment” within the meaning of § 31-275 of the General Statutes as interpreted by this court. On the view we take of the case, the procedural issue raised by the plaintiff is dispositive of the defendants’ appeal and it makes it unnecessary for us to consider the defendants’ assignments of error.

I

We first consider the plaintiff’s claim that the commissioner erred in refusing to grant her “Motion to Preclude” the defendant from contesting compensability, pursuant to § 31-297 (b) of the General Statutes. That section provides: “Whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. 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.) The italicized language of the statute was incorporated by Public Acts 1967, No. 842, § 7. The plaintiff claims that the defendant employer’s notice, which merely stated “[w]e deny a compensable accident or injury,” was fatally deficient in failing to specify the grounds on which compensation was denied. Under the force of the 1967 amendment to § 31-297 (b), therefore, she argues that the notice was inoperative and should result in the conclusive presumption that the employer has accepted the compensability of the death of John Menzies. In this connection she attacks the court’s conclusion that the commissioner correctly denied the motion to preclude.

To determine the scope and operation of the 1967 amendments to § 31-297 (b), it is appropriate for us to consider the circumstances surrounding their adoption. See Hartford Electric Light Co. v. Wethersfield, 165 Conn. 211, 222, 332 A.2d 83, and cases cited. The statutory changes which are of concern to us here were in one small section of a rather substantial piece of legislation, Public Acts 1967, No. 842. By this act the legislature sought to correct some of the glaring inequities and inadequacies of the Workmen’s Compensation Act. Among the defects in previous provisions of the act were the needless, prejudicial delays in the proceedings before the commissioners, delays by employers or insurers in the payment of benefits, lack of knowledge on the part of employees that they were entitled to benefits and the general inequality of resources available to claimants with bona fide claims. See 12 H.R. Proc., Pt. 9, 1967 Sess., pp. 4035-37. When the amendment was proposed for passage, the member of the committee presenting the bill (1967 Sess., H.B. 2161) stated: “The present law requires employers to give notice of intention to contest within 20 days after notice of injury. The commissioners are not in agreement as to what the results are when the employer fails to give the required notice, or where the notice involved does not comply with the law. Some hold, in effect, that there is no penalty, while others hold there is no right to contest liability, but the extent of injury may still be contested. This section clears up the situation. It provides that within 20 days after written notice of claim is made, the employer must file a statement of intention to contest and the basis upon which he will contest. If he fails to file this notice within the time stated or the notice is defective, the employer cannot thereafter contest either liability or extent of liability. This will mean that employers will now have to investigate claims promptly and act quickly; it also means that employees will be able to learn early in the proceedings what the defects are, if any, in their claims.” 12 H.R. Proc., Pt. 9, 1967 Sess., p. 4036. We take judicial notice of this transcript of the legislative proceedings. Bird v. Plunkett, 139 Conn. 491, 504, 95 A.2d 71; see Institute of Living v. Hartford, 133 Conn. 258, 265, 50 A.2d 822. The committee member’s statement was a committee report, and, although not controlling, it may properly be considered as an aid to the determination of the legislative intent. See Hartford Electric Light Co. v. Wethersfield, supra, p. 6; Bird v. Plunkett, supra; see also 50 Am. Jur. 319-20, Statutes, § 327; 2 Sutherland, Statutory Construction (3d Ed.), p. 502.

The object which the legislature sought to accomplish is plain. Section 31-297 (b) 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 claim. 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. To narrow the scope of the controversy would lighten the burden on the claimant in terms of legal expenses, a result which the legislature plainly desired to accomplish by its 1967 amendments. See 12 H.R. Proc., Pt. 9, 1967 Sess., pp. 4037-38; cf. General Statutes § 31-298, as amended by Public Acts 1967, No. 242. A general denial that a claimant has a compensable injury reveals no specific defense or reason why the claim is contested. Such a conclusionary statement would leave open numerous possible defenses, such as a defense of lack of employer-employee status, a defense that the death was due to suicide or to homicide or a claim that death was caused by an intervening injury. As far as notifying the claimant of the specific grounds on which her claim was contested, the stated disclaimer apprised her of nothing except the fact that liability was contested. From this claimant’s vantage point, if the defendants proceed on the stated defense, “[w]e deny a compensable accident or injury,” she, the claimant, must be prepared to meet any number of undisclosed objections to recovery—including her eligibility to receive compensation benefits. Neither the statute nor the Workmen’s Compensation Act contemplates such an impediment to bona fide claims.

It may be argued that, seen from a strict, technical point of view, the defendants’ denial of a “compensable accident or injury” restricts the controversy to the legal questions whether the alleged injury arose out of and in the course of employment and whether it resulted in the death of John Menzies; see De la Pena v. Jackson Stone Co., 103 Conn. 93, 99-100, 130 A. 89; but to place a technical construction on a procedure designed to be simple runs counter to the spirit of the Workmen’s Compensation Act, as well as to its literal provision that “no formal pleadings shall be required.” General Statutes § 31-298. In any event, the sufficiency of the notice under the statute must be judged not by the technical meaning which a court might attach to it, nor by a meaning the defendant subsequently discloses at the hearing, but rather by the criterion of whether it reveals to the claimant specific substantive grounds for the contest. The point of this criterion is to inform the claimant of the deficiencies of his claim after the defending party has had an opportunity to make a thorough investigation. Does the claimant need to bring in witnesses to the accident or expert medical witnesses or instruments documenting death? Does the claimant need the presence of an attorney at the hearing or can the contested issue be resolved by the submission of a document, such as, for example, a marriage certificate or a court order appointing the claimant executrix of the decedent’s estate ? And if the controversy is such as to require an attorney for the claimant, to what precise legal issue must counsel address himself?

The amendment to § 31-297 which was adopted in 1967 embodies the recognition that it is within the employer’s power to supply the answers to such questions in a simple, forthright manner prior to a hearing. As a procedural rule, this part of the statute operates nevertheless substantively in requiring initial affirmative acts from an employer beyond those normally incident to a court proceeding. It is up to the employer to investigate the claim forthwith and either to concede its compensability or to reveal concrete reasons for contesting that claim. This rule is equitable because employers and insurers have the necessary resources to fulfill its mandate, whereas the claimant often receives no more assistance than that furnished by the commissioner in filing his claim. Furthermore, the statute now helps fulfill the major legislative design of the 1967 amendments in that it removes obstacles which tend to discourage valid claims.¹ See 12 H.R. Proc., Pt. 9, 1967 Sess., pp. 4036-38. From the context of the legislative proceedings incident to the 1967 amendments a deficient notice of disclaimer, such as is present in the case at bar, should be presumed to operate prejudicially against the claimant. It is, therefore, of no help to say that the claimant, faced with a general denial of compensability, should ask the employer for a more specific statement or that she must demonstrate some surprise or prejudice to herself. Arguments of this nature overlook the fact that the proceedings were designed to facilitate a speedy, efficient and inexpensive disposition and to reduce the necessity of legal counsel for the claimant. Furthermore, they presuppose that the legislature’s thrusting the word “specific” into the statute in 1967 was a mere inconsequential act.

Admittedly, the statute does not unequivocally dictate that a deficient notice of disclaimer be treated as no notice whatsoever. The considerations which we have treated above, however, lead us to view the statutory effect of notice with an eye toward accomplishing the goal of the 1967 amendments. From the claimant’s vantage point, an employer whose grounds of contest are no more specific than “[w]e deny a compensable accident or injury,” leaves the claimant as much in the dark with regard to the nature of the contest as does a categorical denial or mere silence from the employer. To attach the consequence that the employer be conclusively presumed to have accepted compensability of the death under § 31-297 seems to us the construction which the language and design of the statute support. For it is clear that to attach no consequence to a general denial would leave the claimant in the same disadvantaged position from which the legislature sought to extricate him. The claimant thus would still be obliged to prod the employer into revealing specific grounds for the contest; he would confront the same delays which benefit only the employers and which discourage valid claims. The severity of the statutory consequence is mitigated, however, when we compare it to that of an employer’s notice filed one day late. The statute unequivocally requires that an untimely notice bar the employer from asserting a defense. But although no harm in fact may come to the claimant with one day’s delay, the specific harms deplored in the 1967 legislative proceedings, discussed above, would continue unabated if claimants must take the initiative in extracting from the employer his reasons for the contest.

We hold, therefore, 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 duty to comply with the statute rests on the employer. See Newell v. North Anson Reel Co., 161 Me. 461, 214 A.2d 97. The notice by the employer need not be expressed with the technical precision of a pleading, but it must, as required by the statute, reveal to the claimant “the specific grounds on which the right to compensation is contested.” It is not unjust to require a defending employer or insurance carrier to investigate the case seasonably and to cause a responsive answer to be filed. Newell v. North Anson Reel Co., supra, 465. If an employer has, however, grounds for denying liability for compensation, there is no sound reason why he should not be required to advise the claimant as to the substantive grounds on which liability is denied. The rule contemplates and requires only the simplest procedure and compliance with it enables the principal issues to be framed before a hearing is commenced. See Chapman v. Foremost Dairies, Inc., 249 S.C. 438, 452, 154 S.E.2d 845. The purpose of the requirement of stating the “specific grounds” is to furnish the claimant such warning as would prompt him to make the inquiries he might deem necessary or prudent for the preservation of his interests and in obtaining such information as he might deem helpful for his protection.

Judged by this standard, the notice submitted by the employer, “ [w] e deny a compensable accident or injury,” falls short of the statutory requirement in failing to supply any specific grounds for denying the plaintiff’s claim. We conclude that the court should have sustained the claimant’s appeal relating to the motion to preclude. Its failure to do so, however, constitutes harmless error in light of its sustaining the award. Our decision as to the procedural effect of § 31-297 thus renders moot the claim by the defendants that the injuries sustained by the claimant’s decedent did not, on the facts, arise out of and in the course of employment.

II

We turn next to the plaintiff’s claim that she was entitled as of right to an award of attorney’s fees for her representation at the formal hearing. The court in passing on this claim stated in its memorandum of decision that “the respondent has not unreasonably contested liability, and consequently the allowance of fees was within the discretion of the Commissioner.” It is plain that the court sustained the commissioner’s decision on the authority of General Statutes § 31-300. That statute was amended by Public Acts 1967, No. 842, § 10, to provide: “In cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney’s fee.” The plaintiff has no quarrel with the correctness of the commissioner’s decision under § 31-300 of the General Statutes; she makes no assertion that he abused his discretion in denying the award of attorney’s fees.

The plaintiff argues, however, that she was entitled to an attorney’s fee for representation at the formal hearing as a matter of right by virtue of General Statutes § 31-298. A few weeks prior to the 1967 amendment to § 31-300 (Public Acts 1967, No. 842), the legislature added to General Statutes § 31-298 an amendment providing that if the claimant prevails on final judgment after a formal hearing before the commissioner, he “shall be entitled . . . [to] attorney’s fees for representation of the claimant at the formal hearing.” Some weeks later the legislature enacted Public Acts 1967, No. 842, § 8 of which expressly repealed § 31-298 and which substituted therefor a provision which omitted the language of the previous act, Public Acts 1967, No. 242. Although the form of Public Acts 1967, No. 842, § 8, does not follow the directive of General Statutes § 2-18² insofar as it fails to set forth the pertinent, repealed language of Public Acts 1967, No. 242, in brackets, it is clear to us that the legislature has effectively repealed the act on which the plaintiff relies in pressing her claim for attorney’s fees. The later form of the statute, General Statutes § 31-298, as amended by Public Acts 1967, No. 842, § 8, by its very terms repealed the earlier provisions of that section. Those portions of the previously amended statute which were omitted from the statute in its new form ceased to be the law and were effectively repealed.³ Anastasio v. Gulf Oil Corporation, 131 Conn. 708, 714, 42 A.2d 149; Simborski v. Wheeler, 121 Conn. 195, 200, 183 A. 688; Aston Motor Car Co. v. Mannion, 92 Conn. 568, 569, 103 A. 655. The commissioner, therefore, was without statutory authority to order counsel fees for the plaintiff’s representation as a matter of right; he could properly have awarded them only on the conditions set forth, in General Statutes § 31-300. Accordingly, there is no error in the court’s sustaining the commissioner’s denial of the requested award.

There is no error in either of the appeals.

In this opinion Loiselle and Bogdanski, Js., concurred.

1 Among the former prohibitive hurdles to meritorious claims were the worker’s loss of wages for the day lost at a formal hearing (now cured by $ 31-298, as amended by Public Acts 1967, No. 842, § 8) and substantial legal fees incurred in presenting and prosecuting his claim (now see § 31-298 as amended by Public Acts 1967, No. 242, and § 31-300, as amended by Public Acts 1967, No. 842, § 10).

2 General Statutes § 2-18, entitled “Form of bills amending statutes,” provides in part: “Matter to be omitted or repealed shall be surrounded by brackets.” We consider this statute to be a directive for the mechanical form of printed bills, and not a mandate for the validity of public acts.

3 It has been indicated to the court that it has been the longstanding practice of the legislative commissioners’ office, in the discharge of its official duties as publisher of the supplements and revisions of the General Statutes (see General Statutes, c. 17), to incorporate in one section amendments to the same statutory section effected by two or more acts of the same session of the General Assembly where the later act or acts do not refer to and incorporate the amendment of the eariier act and where the several amendments are not in irreconcilable conflict. The validity of this practice was neither argued nor raised as an issue in this case and accordingly is not decided by us.