Date: 08-07-2012

Case Style: Robin K. Callender v. Reflexite Corporation

Case Number: AC 32832

Judge: Sheldon

Court: Connecticut Court of Appeals on appeal from the workers' compensation commissioner for the sixth district

Plaintiff's Attorney: Jennifer B. Levine, with whom was Harvey L. Levine, Levine & Levine, New Britian, Connecticut, for the appellant (plaintiff).

Defendant's Attorney: Deborah J. Delbarba, Hartford, Connecticut, with whom was Michael A. Burton, for the appellees (defendants).

Description: This case involves a dispute between an employer, the defendant1 Reflexite Corporation, and its employee, the plaintiff Robin K. Callender, as to whether General Statutes § 31-294c invariably requires an employer, to preserve its right to contest an employee’s claim for workers’ compensation benefits on the merits, either to file a form 43, notice to contest the claim (notice to contest), or to commence payment on the claim within twenty-eight days of the filing of the notice of claim. Here, the plaintiff claims2 that the workers’ compensation review board (board) erred in upholding the decision of a trial commissioner (commissioner) to deny her motion to preclude the defendant from contesting her claim for benefits dated May 11–12, 2006 (May, 2006 claim) despite the defendant’s failure either to file a notice to contest that claim or to commence payment thereon within twenty-eight days of the notice of claim, in alleged violation of § 31-294c.

The defendant argues that the board’s decision should be upheld because, on the facts of this case, the plaintiff’s May, 2006 claim was not a new claim but merely the unnecessary reassertion of an earlier claim for the same injuries as to which it already had filed a timely notice to contest and on which it already had begun to make payments. The parties’ dispute arises against the background of the following historical and procedural facts.

The defendant employed the plaintiff for nearly twenty years. During that time, she allegedly sustained a number of work-related injuries, for which she has made multiple claims for workers’ compensation benefits, two of which are at issue in the present appeal.

On October 12, 2005, the plaintiff filed a notice of claim with respect to injuries she claimed to have suffered due to repetitive workplace trauma between 1987 and 2004. In that notice of claim (October, 2004 claim), she alleged that, as a result of such repetitive workplace trauma, she had developed a painful condition that affected her ‘‘neck, [right] shoulder, [right] arm, [right] hand, [left] shoulder, [left] hand [and] lower back.’’ The plaintiff listed the date of her injury as October 18, 2004. The defendant responded to this claim by filing a timely form 43 and by making timely payments on that claim in accordance with § 31-294c.3

Thereafter, the plaintiff continued to work for the defendant. On April 29, 2006, complaining of neck pain and back spasms, the plaintiff was treated in the emergency department of New Britain General Hospital.

Although the plaintiff returned to work for the defendant on May 11, 2006, her last day of work was the overnight shift, which began on that day.

On May 7, 2007, the plaintiff filed a new notice of claim, in which she alleged that she had sustained repetitive trauma injuries to her ‘‘[r]ight and left upper limbs, neck, upper and lower back, both shoulders and both hands and elbows,’’ in the period from 1987 until her last day of work. In addition, in a ‘‘Schedule A’’ attached to her new notice of claim, she alleged that the repetitive trauma of which she complained had caused injury to her brain, which manifested itself in the forms of chronic pain and depression. The defendant never filed a notice to contest liability with respect to the plaintiff’s May, 2006 claim, nor did it commence making payments to the plaintiff on that claim. It did, however, continue to make payments to the plaintiff on her October, 2004 claim.

As to its alleged failure to commence payment on the May, 2006 claim, the defendant contends that that claim did not allege a new and separate injury from that alleged in her October, 2004 claim, and thus that its continuation of payments to the plaintiff on her October, 2004 claim was sufficient to respond and to preserve its right to contest on the merits her May, 2006 claim as well. It asserts, moreover, that any additional payment to the plaintiff on her May, 2006 claim would afford the plaintiff a double recovery for the same injury in violation of Connecticut’s well settled public policy disfavoring double recovery of workers’ compensation benefits.

On June 2, 2009, the plaintiff filed an amended motion to preclude the defendant from contesting either the compensability of the injuries described in her May, 2006 claim or the extent of her disability arising from such injuries.4 The motion alleged that the defendant had not complied with § 31-294c (b) with respect to her May, 2006 claim because it had failed either to issue a timely notice to contest that claim or, in the alternative, to commence making payments on that claim within twenty-eight days of the filing of the plaintiff’s notice of claim.

On June 18, 2009, the parties attended a hearing before the commissioner on the plaintiff’s motion to preclude. At the hearing, the defendant filed a joint motion to bifurcate on behalf of all defendants, seeking to have the motion to preclude heard and decided before any compensability issues were addressed. After granting the motion to bifurcate, the commissioner heard argument and dismissed the plaintiff’s motion to preclude.

In dismissing the motion to preclude, the commissioner made the following findings of fact. The plaintiff had sustained compensable injuries as a result of repetitive trauma she experienced while working for the defendant and the defendant had paid her benefits for such injuries under her ‘‘accepted claims’’ of October, 2004 and May, 2006. Over time, issues arose with respect to the plaintiff’s capacity to return to work, medical treatment and additional injuries, which resulted in litigation and various hearings before the commission. The plaintiff filed her May, 2006 claim based on a new injury that arose out of the same repetitive trauma that had caused the injuries cited in her October, 2004 claim.

On that basis, the commissioner dismissed the motion to preclude, stating that ‘‘[t]he result the [plaintiff] is seeking is contrary to the letter and spirit of [General Statutes §] 31-294[c], Menzies [v. Fisher, 165 Conn. 338, 334 A.2d 452 (1973)],5 Harpaz [v. Laidlaw Transit, Inc., 286 Conn. 102, 942 A.2d 396 (2008)],6 and Donahue [v. Veridiem, Inc., 291 Conn. 537, 970 A.2d 630 (2009)]7 line of cases. Motions to preclude are to be granted whenever a [defendant] is less than vigilant and diligent in responding to a newly filed claim. That did not happen here.’’ The plaintiff later filed a motion to correct some of the commissioner’s factual findings, but the motion was denied in its entirety. The plaintiff then filed a motion for articulation, which also was denied.

Thereafter, the plaintiff appealed to the board. The board, in affirming the commissioner’s decision, determined that the injuries alleged in the plaintiff’s May, 2006 claim were causally related to the injuries alleged in her October, 2004 claim and, thus, that they were ‘‘additional injuries arising from an original compensable incident . . . .’’8 It therefore held that, because ‘‘a claimant is not required to file a separate notice of claim for additional injuries arising from an original compensable incident,’’ there was no justification for requiring the defendant to file a formal response to the May, 2006 claim or to commence payment thereon in order to preserve its right to contest the merits of that claim.

On appeal, the plaintiff claims that the board erred in affirming the commissioner’s ruling that an employer is not required to comply with the statutory mandates of § 31-294c (b) when its employee files a repetitive trauma claim with a date of injury that is later than that of an earlier repetitive trauma claim.9 We agree and accordingly reverse the judgment of the board.

We first set forth our standard of review applicable to workers’ compensation appeals. ‘‘It is the power and the duty of the commissioner, as the trier of fact, to determine the facts.’’ Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988). ‘‘[T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses . . . .’’ Keenan v. Union Camp Corp., 49 Conn. App. 280, 286, 714 A.2d 60 (1998).

‘‘[W]hen a decision of a commissioner is appealed to the review division, the review division is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts.’’ (Internal quotation marks omitted.) Ricigliano v. J.J. Ryan Corp., 53 Conn. App. 158, 160, 728 A.2d 1161 (1999), appeal dismissed, 252 Conn. 404, 746, A.2d 787 (2000).

Our scope of review of the actions of the board is similarly limited. See id., 161. ‘‘The decision of the review [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.’’ (Emphasis added.) DeBarros v. Singleton, 21 Conn. App. 107, 110, 572 A.2d 69, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990).

Our Supreme Court has reviewed § 31-294c and determined that, by its adoption, our legislature intended to: ‘‘(1) include repetitive trauma injuries among those injuries compensable under the [workers’ compensation] act;10 (2) require claimants to file notices of claim, written in simple language,11 in order to maintain proceedings under the act;12 and (3) allow claimants who have filed such notices of claim to preclude their employers from contesting liability when their employers fail to contest liability properly within twenty-eight days of receiving the notice of claim.’’13 Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 607, 748 A.2d 278 (2000).

When an employer fails to comply with the statutory mandate of § 31-294c and a motion to preclude is granted, the employer is precluded from contesting either the compensability of its employee’s claimed injury or the extent of the employee’s resulting disability. 14 See Harpaz v. Laidlaw Transit, Inc., supra, 286 Conn. 130. Once a motion to preclude is granted, the only further role that an employer can play in the proceeding on the merits before the commissioner is to decide whether or not to stipulate to the compensation claimed. If the employer does not so stipulate, the claimant proceeds with his or her case, subject to examination by the commissioner without participation by the employer. Donahue v. Veridiem, Inc., supra, 291 Conn. 546–47. Preclusion, therefore, does not relieve a claimant of the obligation to prove his or her claim by competent evidence. Harpaz v. Laidlaw Transit, Inc., supra, 286 Conn. 131–32. Instead, ‘‘§ 31-294c (b) provides that the employer is conclusively presumed to have accepted the compensability of the injury, not that the injury is conclusively presumed to be compensable.’’ Id., 131.

Notwithstanding this statute’s directive, our Supreme Court has declared that its conclusive presumption does not prevent an employer from contesting liability on the ground that the commissioner lacks subject matter jurisdiction over the claim.15 See Castro v. Viera, supra, 207 Conn. 430 (conclusive presumption of General Statutes [Rev. to 1983] § 31-297 [b], which is similar to that of § 31-294c [b], does not bar employer from contesting liability when ‘‘question of the lack of subject matter jurisdiction has been squarely presented to commissioner’’).

In other words, the employer can always contest the existence of ‘‘jurisdictional facts.’’ ‘‘A ‘jurisdictional fact’ is a fact that will permit a court to find jurisdiction.’’ Del Toro v. Stamford, 270 Conn. 532, 543 n.9, 853 A.2d 95 (2004). Specifically, jurisdictional facts are ‘‘[f]acts showing that the matter involved in a suit constitutes a subject-matter consigned by law to the jurisdiction of that court . . . .’’ (Internal quotation marks omitted.) Id. The existence of an employeremployee relationship; see Castro v. Viera, supra, 433; and the proper initiation of a claim in the first instance under § 31-294c; see Estate of Doe v. Dept. of Correction, 268 Conn. 753, 757, 848 A.2d 378 (2004); are jurisdictional facts. The issue of causation, by contrast—that is, whether or not an injury arose out of and in the course of the employee’s employment—has been held not to constitute a jurisdictional fact. See DeAlmeida v. M.C.M. Stamping Corp., 29 Conn. App. 441, 449, 615 A.2d 1066 (1992).

In the present case, the plaintiff timely filed a notice of her May, 2006 claim regarding what she claimed to have been a new injury. Her notice of claim substantially complied with the requirements of § 31-294c, insofar as it sufficiently apprised the defendant of the existence and nature of her claim to allow it to make a timely investigation of that claim. See Pereira v. State, 228 Conn. 535, 543 n.8, 637 A.2d 392 (1994); Chase v. State, 45 Conn. App. 499, 503–504, 696 A.2d 1299 (1997). Even so, the defendant failed either to commence payment on the plaintiff’s May, 2006 claim or to file a notice to contest liability on that claim within twenty-eight days of the filing of the plaintiff’s new notice of claim, as required to preserve its right to contest that claim on the merits under § 31-294c.

In dismissing the plaintiff’s motion to preclude, the commissioner made a determination, which was later affirmed by the board, that the plaintiff’s May, 2006 claim was not a ‘‘newly filed claim.’’ Despite the commissioner’s assertion that the issue of whether the new injuries alleged in the May, 2006 claim actually resulted from the injuries alleged in the October, 2004 claim would remain open and subject to further evidentiary hearings, his determination that the May, 2006 claim was not a ‘‘newly filed claim’’ was equivalent to a finding that the injuries alleged in the May, 2006 claim arose from the same incident as those alleged in the earlier October, 2004 claim and, thus, did not require the filing of a new form 30C.

The board, in extrapolating from the commissioner’s finding that the May, 2006 claim did not constitute a newly filed claim, determined that the plaintiff’s form 30C regarding her May, 2006 claim failed to establish a new injury but, rather, pleaded an exacerbation of the original injury for which she had already sought benefits under her October, 2004 claim. On that basis, the board concluded that the plaintiff was not required to file a new form 30C.16 Because the new notice of claim was assertedly unnecessary, the board determined that a notice to contest that claim would likewise be unnecessary. 17 On that basis, the board affirmed the commissioner’s decision.

In deciding a motion to preclude, the commissioner must engage a two part inquiry. First, he must determine whether the employee’s notice of claim is adequate on its face. See General Statutes § 31-294c (a). Second, he must decide whether the employer failed to comply with § 31-294c either by filing a notice to contest the claim or by commencing payment on that claim within twenty-eight days of the notice of claim. See General Statutes § 31-294c (b). If the notice of claim is adequate but the employer fails to comply with the statute, then the motion to preclude must be granted.

In the present case, the new notice of claim appeared to allege a new and separate injury, with the reported date of injury different from that listed on the earlier notice of claim and the reported injury different from any injury previously claimed. In response to the new notice of claim, the employer failed either to file a new notice to contest the claim or to commence making payments on the new claim within twenty-eight days of the filing of the notice of claim. The commissioner thus had no choice under the statute but to grant the motion to preclude.

In determining that the plaintiff’s alleged injury was an exacerbation of her original injury, as described in her earlier notice of claim, rather than a new and separate injury,18 the board improperly made a finding as to the causation of the alleged injury and, thus, affirmed, on expanded grounds, the commissioner’s determination that the May, 2006 claim did not constitute a new claim for purposes of the statute. The board, therefore, improperly affirmed the commissioner’s decision on the basis of the merits of the claim.19 Because the defendant failed to file a form 43 or to commence payment within the time prescribed by law, it thereafter was precluded from contesting the claim except with regard to jurisdictional matters. Because the commissioner’s finding was incorrect as a matter of law, the board erred in affirming it.

Lastly, we turn to the defendant’s claim that its payment on the May, 2006 claim would constitute a double recovery and, thus, that its payment on the October, 2004 claim is sufficient to serve as payment on the May, 2006 claim. Any allegation of double recovery should have been properly raised in a notice to contest liability.

The defendant cannot now rely on an allegation of double recovery as the ground for its failure to timely respond to the plaintiff’s notice of claim.

* * *

See: http://www.jud.ct.gov/external/supapp/Cases/AROap/AP137/137AP447.pdf

Outcome: The decision of the board is reversed and the case is remanded to the board with direction to grant the motion to preclude with regard to the May, 2006 claim.

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