Date: 09-16-2012

Case Style: Lirije Dauti v. Lighting Services, Inc.

Case Number: AC 33441

Judge: Beach

Court: Connecticut Court of Appeals

Plaintiff's Attorney: Eddi Z. Zyko, for the appellees (plaintiffs).

Defendant's Attorney: David A. Kelly, with whom, on the brief, was Sean Reidy, for the appellants (defendants).

Description: The defendants, Lighting Services, Inc. (Lighting Services), and Peerless Insurance Company, appeal from the decision of the workers’ compensation review board (board), claiming that the board improperly concluded that the plaintiffs’1 notice of claim was timely filed under General Statutes § 31-294c (a).2 We disagree with the defendants and therefore affirm the decision of the board.

The following facts, as found by the workers’ compensation commissioner (commissioner), are relevant to this appeal. Zejadin Dauti (decedent) was employed by Lighting Services when, on September 28, 2000, he suffered a fatal heart attack while performing services for his employer at a supermarket in East Hartford.3

The commissioner found that neither a form 30C4 nor a form 30D5 was filed in this matter and that no hearing was requested, scheduled or held within one year of September 28, 2000. The plaintiffs’ counsel filed notice of the plaintiffs’ claims under General Statutes § 31-306 (a),6 by letter dated January 30, 2002. The defendants filed a form 437 dated February 13, 2002.

The commissioner held a formal hearing on November 5 and December 28, 2009, and the record was closed on March 31, 2010. The commissioner issued his ruling on April 28, 2010. On the basis of the evidence before him, the commissioner found that the plaintiffs had failed to file a notice of claim within one year of the decedent’s death, thereby failing to meet the requirements of § 31-294c (a) and that they had failed to demonstrate that one of the jurisdictional exceptions in § 31- 294c (c) applied. The commissioner concluded, therefore, that the workers’ compensation commission (commission) lacked subject matter jurisdiction and dismissed the plaintiffs’ claims. The plaintiffs filed a motion to correct the finding and award, which the commissioner denied.

The plaintiffs then, on May 13, 2010, filed a petition for review with the board. On April 25, 2011, the board issued its decision, concluding that the commissioner incorrectly had determined that the commission lacked subject matter jurisdiction over the plaintiffs’ claims.

The board found that the plain meaning of § 31-294c, as construed in its prior decision, Merenski v. Greenwich Hospital Associates, Inc., No. 4292 CRB-7-00-9 (September 12, 2001), provides for a two year time limitation from a worker’s death to file claims under § 31-306, which time limitation the plaintiffs met.8

The defendants appealed to this court, claiming that the board improperly reversed the commissioner’s finding and award, which concluded that the plaintiffs failed to file a notice of claim within the applicable time set forth in § 32-294c (a). We disagree with the defendants and affirm the decision of the board.

The precise issue raised by the defendants in this appeal was considered and decided in Wikander v. Asbury Automotive Group/David McDavid Acura, 137 Conn. App. , A.3d (2012). We agree with the reasoning and the result of the majority in that case; the language of § 31-294c (a) is plain and unambiguous and provides for a two year limitation period when death occurs on the same day as the accident that caused the death. We see no reason to belabor the point further.

* * *

See: http://www.jud.ct.gov/external/supapp/Cases/AROap/AP137/137AP502.pdf

Outcome: The decision of the workers’ compensation review board is affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: