Woodbury-Correa v. Reflexite Corp. , 190 Conn. App. 623 ( 2019 )

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MARCELLA WOODBURY-CORREA v. REFLEXITE
CORPORATION
(AC 39397)
DiPentima, C. J., and Elgo and Bright, Js.
Syllabus
Pursuant to statute (§ 31-294c [b]), ‘‘an employer who fails to contest liability
for an alleged injury . . . on or before the twenty-eighth day after receiv-
ing a written notice of claim and who fails to commence payment for
the alleged injury . . . on or before such twenty-eighth day, shall be
conclusively presumed to have accepted the compensability of the
alleged injury . . . .’’
The plaintiff employee appealed to this court from the decision of the
Compensation Review Board affirming the decision of the Workers’
Compensation Commissioner denying her motion to preclude the defen-
dant employer from contesting the compensability of her injuries pursu-
ant to § 31-294c (b). The commissioner denied the plaintiff’s motion to
preclude on the ground that it was not possible for the defendant to
comply with § 31-294c (b) under the facts of this case. Specifically, the
commissioner found that on April 17, 2009, the plaintiff had filed a form
30C notifying the defendant that she was seeking compensation for
repetitive trauma injuries she sustained at work, but the defendant did
not file a proper and timely form 43 to contest liability for the plaintiff’s
claim. The commissioner concluded that although the defendant had
not filed a proper and timely form 43, it was impossible for the defendant
to have complied with § 31-294c (b) because it could not commence
payment within the twenty-eight day statutory time period where, as
here, it had not received any medical bills or claims for benefits from
the plaintiff during that time. The board affirmed the commissioner’s
decision, agreeing that it had been impossible for the defendant to file
a timely form 43 under these circumstances. The board further con-
cluded that although the defendant had failed to file a timely form 43,
it had filed a proper form 43 contesting liability with the Workers’
Compensation Commission, which was sent to the commission via fac-
simile transmission on July 24, 2009. On the plaintiff’s appeal to this
court, held:
1. The board exceeded its authority by making a new factual finding, in
contradiction to that made by the commissioner, that the defendant
had filed a proper, albeit untimely, form 43 contesting liability: the
commissioner expressly found that the defendant had not filed a proper
and timely form 43 as required by § 31-294c (b), the parties did not
request the commissioner to correct that finding or challenge that finding
on appeal to the board, the plaintiff specifically argued to the board
that the commissioner had found that the defendant had never filed a
proper form 43 with the commission as required by § 31-294c (b), and
a review of the exhibits relied on by the commissioner in support of
that finding demonstrated that it was not clearly erroneous; moreover,
although the record revealed that the defendant had faxed a copy of
its form 43 to the commission on July 24, 2009, within one year of the
plaintiff’s notice of claim, both form 43 and the applicable statute (§ 31-
321) require notice of service to be made either personally or by regis-
tered or certified mail, and the record on appeal contained no properly
filed form 43 served on the commission in accordance with § 31-321.
2. The board improperly affirmed the commissioner’s decision denying the
plaintiff’s motion to preclude the defendant from contesting liability
on the basis of impossibility: although the defendant was unable to
commence payment within the statutory twenty-eight day time period
because the plaintiff’s medical bills had not been submitted during that
time, the defense of impossibility was not applicable in this case, as the
defendant contested liability rather than the extent of the plaintiff’s
disability, and, therefore, it was not impossible for and the defendant
was required to file a form 43 notice of intent to contest liability on or
before the twenty-eighth day after it had received the plaintiff’s form
30C notifying it of her claim pursuant to § 31-294c (b); accordingly,
because the defendant failed to file a form 43 to contest liability for the
plaintiff’s work related repetitive trauma claim within twenty-eight days
of the plaintiff’s filing of her claim, the plaintiff’s motion to preclude
the defendant from contesting liability should have been granted.
Argued January 28—officially released June 18, 2019
Procedural History
Appeal from the decision by the Workers’ Compensa-
tion Commissioner for the Sixth District denying the
plaintiff’s motion to preclude the defendant from con-
testing liability as to her claim for certain workers’
compensation benefits, brought to the Compensation
Review Board, which affirmed the commissioner’s deci-
sion, and the plaintiff appealed to this court. Reversed;
further proceedings.
Jennifer B. Levine, with whom was Harvey L.
Levine, for the appellant (plaintiff).
Colin J. Hoddinott, with whom, on the brief, was
Deborah J. DelBarba, for the appellee (defendant).
Opinion
BRIGHT, J. The plaintiff, Marcella Woodbury-Correa,
appeals from the decision of the Compensation Review
Board (board) affirming the decision of the Workers’
Compensation Commissioner (commissioner), denying
the plaintiff’s motion to preclude1 the defendant, her
employer, Reflexite Corporation, from contesting liabil-
ity for the repetitive trauma injuries claimed and noticed
on her form 30C.2 On appeal, the plaintiff claims that
the board (1) exceeded its authority by making new
factual findings that contradict the findings made by
the commissioner, and (2) erred in affirming the com-
missioner’s denial of the motion to preclude the defen-
dant from contesting liability for the plaintiff’s repetitive
trauma injuries. We agree with both claims and reverse
the decision of the board.
We begin with the underlying facts as found by the
commissioner, as well as the procedural history and
uncontested facts as revealed by the record. On April
17, 2009, the plaintiff had an existing employment rela-
tionship with the defendant. On that date, she filled
out a form 30C claiming repetitive trauma injuries, the
symptoms of which, she alleged, began in 2003. She
sent the form 30C via certified mail on April 18, 2009,
both to the defendant and to the Workers’ Compensa-
tion Commission (commission). Both the commission
and the defendant received the form 30C on April 20,
2009. The defendant did not file a proper and timely
form 43 to dispute liability.3 On February 24, 2014, pur-
suant to General Statutes § 31-294c (b), the plaintiff filed
a motion to preclude the defendant from contesting
liability for her repetitive trauma injuries. Nearly one
year later, on January 5, 2015, the defendant filed a
written objection to the plaintiff’s motion on the ground
that it had filed a form 43 in a timely manner.4
The commissioner found that the commission file
reflected that ‘‘there were never any claims for indem-
nity or medical benefits for the [plaintiff],’’ and that the
‘‘first claim for benefits was . . . some five years after
the claimed date of injury.’’ The commissioner, there-
after, concluded that it was ‘‘impossible for the [defen-
dant] to comply with the statutory requirements to issue
any benefit payments during the [twenty-eight] day
period following the filing of the [plaintiff’s] form 30C
as no benefits were claimed,’’ and, on that basis, he
denied the plaintiff’s motion to preclude the defendant
from contesting liability. The plaintiff filed a petition for
review of the commissioner’s decision with the board.5
A hearing was held before the board on March 18,
2016. In a June 22, 2016 written decision, the board
affirmed the commissioner’s decision denying the plain-
tiff’s motion to preclude the defendant from contesting
liability, specifically agreeing, in part, that the defendant
was not able to file a timely form 43 due to ‘‘impossibil-
ity.’’ This appeal followed. Additional facts will be set
forth as necessary.
Before reviewing the plaintiff’s claims, we set forth
the applicable standard of review. ‘‘The commissioner
has the power and duty, as the trier of fact, to determine
the facts . . . and [n]either the . . . board nor this
court has the power to retry facts. . . . The conclu-
sions drawn by [the commissioner] from the facts found
[also] must stand unless they result from an incorrect
application of the law to the subordinate facts or from
an inference illegally or unreasonably drawn from them.
. . . [Moreover, it] is well established that [a]lthough
not dispositive, we accord great weight to the construc-
tion given to the workers’ compensation statutes by the
commissioner and review board. . . . Cases that pre-
sent pure questions of law, however, invoke a broader
standard of review than is ordinarily involved in decid-
ing whether, in light of the evidence, the agency has
acted unreasonably, arbitrarily, illegally or in abuse of
its discretion. . . . We have determined, therefore, that
the traditional deference accorded to an agency’s inter-
pretation of a statutory term is unwarranted when the
construction of a statute . . . has not previously been
subjected to judicial scrutiny [or to] . . . a governmen-
tal agency’s time-tested interpretation . . . . Further-
more, [i]t is well established that, in resolving issues
of statutory construction under the [Workers’ Compen-
sation Act (act), General Statutes § 31-275 et seq.], we
are mindful that the act indisputably is a remedial stat-
ute that should be construed generously to accomplish
its purpose. . . . The humanitarian and remedial pur-
poses of the act counsel against an overly narrow con-
struction that unduly limits eligibility for workers’
compensation. . . . Accordingly, [i]n construing work-
ers’ compensation law, we must resolve statutory ambi-
guities or lacunae in a manner that will further the
remedial purpose of the act. . . . [T]he purposes of
the act itself are best served by allowing the remedial
legislation a reasonable sphere of operation considering
those purposes. . . .
‘‘Our scope of review of the actions of the board is
similarly limited. . . . The role of this court is to deter-
mine whether the review [board’s] decision results from
an incorrect application of the law to the subordinate
facts or from an inference illegally or unreasonably
drawn from them.’’ (Citations omitted; internal quota-
tion marks omitted.) Wiblyi v. McDonald’s Corp., 168
Conn. App. 77, 84–86, 144 A.3d 1075 (2016).
‘‘In deciding a motion to preclude, the commissioner
must engage [in] 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).6 If the notice of
claim is adequate but the employer fails to comply with
the statute, then the motion to preclude must be
granted.’’ (Footnote altered; internal quotation marks
omitted.) Id., 86–88.
I
The plaintiff claims that the board exceeded its
authority by making a new factual finding concerning
the form 43 that contradicts the finding made by the
commissioner, despite the fact that the commissioner’s
finding had not been challenged on appeal to the board.
She argues that the board acted improperly ‘‘when it
liberally construed the unambiguous factual finding of
the commissioner that ‘a proper and timely form 43
was not filed by the [defendant]’ to mean that ‘the form
43 that was filed was not ‘‘proper’’ [because] it was not
‘‘timely.’’’ The board not only inserted a new factual
finding into the commissioner’s decision, but [it]
deleted the commissioner’s original finding that the
defendant failed to properly serve the commission with
a form 43 in accordance with its statutory mandate.’’
We agree.
In his findings, the commissioner specifically found
that ‘‘[e]vidence produced at the formal hearing as well
as the contents of the commission’s file indicate that
a proper and timely form 43 was not filed by the [defen-
dant].’’ The commissioner cited, as support for this find-
ing, several exhibits. The commissioner was not
requested to correct this finding, and neither party chal-
lenged this finding on appeal to the board. Moreover,
although the finding was not preserved for review, an
examination of the exhibits cited by the commissioner
readily confirms that this finding was not clearly errone-
ous. The plaintiff properly filed a form 30C claiming
repetitive trauma injuries, as found by the commis-
sioner, which was received both by the board and by
the defendant on April 20, 2009. On May 5, 2009, the
defendant sent its form 43, via certified mail, to the
plaintiff’s attorney, as evidenced by the return receipt.
The defendant did not serve the commission with its
form 43 at that time. Instead, on July 24, 2009, despite
the requirements of General Statutes § 31-3217 and form
43,8 the defendant sent, via facsimile transmission, its
form 43 to the commission.
The board, in its written decision, attacked the argu-
ment of the plaintiff’s attorney that the ‘‘commissioner
found that the [defendant] never filed a form 43 with
the . . . commission as required by the act. Therefore,
statutory preclusion must lie.’’ (Internal quotation
marks omitted.) The board opined that the statement
of the plaintiff’s attorney was ‘‘unequivocally factually
incorrect [in that the defendant] did file a form 43 con-
testing the claim which was received by the commission
on July 24, 2009, a date more than [twenty-eight] days
after the claimant filed her form 30C seeking benefits
but well within the one year safe harbor period to con-
test the extent of disability . . . . The trial commis-
sioner in [his] findings . . . found that the [defendant]
had not filed ‘a proper and timely form 43.’ . . . We
suggest that the trial commissioner inartfully expressed
. . . in [his] findings . . . that the form 43 that was
filed was not ‘proper’ as it was not ‘timely.’ To suggest
in pleadings before this commission, and indeed again
at oral argument before this tribunal, that a form 43
had never been filed by the [defendant], or that the
evidence presented would support such a factual find-
ing by the trial commissioner, is a distortion of the facts
on the record.’’ (Citations omitted; footnote omitted;
emphasis in original.) The board thereafter proceeded
to review the plaintiff’s appeal as though the commis-
sioner had found that the defendant’s form 43 had been
filed untimely with the commission, but, nonetheless,
properly filed. We agree with the plaintiff that this was
in error.
The commissioner clearly found that ‘‘a proper and
timely form 43 was not filed by the [defendant].’’
(Emphasis added.) The plaintiff’s attorney had argued
to the board that the commissioner had found that the
defendant had never filed a form 43 with the commis-
sion as required by the act. A review of the commission-
er’s findings reveals that the argument of the plaintiff’s
attorney was accurate and not ‘‘a distortion of the facts
on the record.’’ The defendant improperly and untimely
sent its form 43 to the commission in a facsimile trans-
mission. As indicated by the commissioner’s decision,
a proper form that complied with the act was not filed
by the defendant. Form 43 and § 31-321 do not contain
any language that permits the filing of a form 43 by
facsimile transmission to the commission; rather, both
the form and the statute require that it must be filed
either in person, by registered mail, or by certified mail.
See Dubrosky v. Boehringer Ingelheim Corp., 145
Conn. App. 261, 274, 76 A.3d 657 (‘‘[i]t is well settled
that notice provision under the [act] should be strictly
construed’’ [internal quotation marks omitted]), cert.
denied, 310 Conn. 935, 78 A.3d 859 (2013). The record
provided to us on appeal contains no properly filed
form 43.9
Accordingly, we agree with the plaintiff that the board
improperly changed a finding of the commissioner and
relied on that changed finding in its decision.
II
The plaintiff next claims that the board erred in
affirming the commissioner’s denial of the motion to
preclude the defendant from contesting liability on the
basis of the defense of ‘‘impossibility.’’ Specifically, she
argues that the defense of impossibility, as articulated
in Dubrosky v. Boehringer Ingelheim Corp., supra, 145
Conn. App. 269–70, is not applicable when an employer
contests liability rather than the extent of disability.
She contends that if an employer chooses to contest
liability for the employee’s injuries, it must file a proper
and timely form 43, regardless of whether the employee
submitted medical bills within twenty-eight days of the
employee’s filing of form 30C. We agree.10
The following additional facts aid in our analysis. The
commissioner concluded that there was no evidence
that the plaintiff had ‘‘claimed either medical or indem-
nity benefits for her alleged injuries during the [twenty-
eight] day period following the filing of the form 30C,’’
and that because the plaintiff had not submitted a claim
for any benefits during that time, ‘‘[i]t was impossible
for the respondents to comply with the statutory
requirements to issue any benefit payments during [that
twenty-eight] day period . . . .’’
In her appeal to the board, the plaintiff argued that the
commissioner improperly concluded that the defense of
impossibility applied in this case and that it improperly
denied her motion to preclude the defendant from con-
testing liability. She contended that the commissioner
was required to grant her motion because he found that
the defendant had failed to file a proper and timely form
43, as is required by § 31-294c (b), to contest liability.
The board affirmed the commissioner’s decision, con-
cluding in relevant part that ‘‘[t]he [plaintiff] simply did
not proffer a credible argument that subsequent to filing
her form 30C, the [defendant] failed in [its] obligation
to respond, and, therefore, the ‘safe harbor’ under
Dubrosky [v. Boehringer Ingelheim Corp., supra, 145
Conn. App. 269–70] was in effect [because] the [defen-
dant] filed a form 43 within the one year period provided
. . . under § 31-294c . . . . In the present case, the
trial commissioner found that there had been no event
subsequent to the [plaintiff] filing the form 30C to which
the [defendant] could have reacted and determined [its]
‘safe harbor’ was in place.’’11
The plaintiff argues that the board improperly found
that the defendant properly had filed a form 43; see
part I of this opinion; and it improperly concluded that
the commissioner correctly determined that the ‘‘safe
harbor’’ provision articulated in Dubrosky applied to
cases in which an employer was attempting to contest
liability rather than to contest the extent of disability.
We agree.
In Dubrosky, the dispositive issue was whether the
employer was precluded from contesting the extent of
a disability under § 31-294c (b) because it had been
impossible for it to have commenced payment of com-
pensation within the statutory twenty-eight day time
period because no medical bills had been submitted
to it during that time period. Dubrosky v. Boehringer
Ingelheim Corp., supra, 145 Conn. App. 263; see gener-
ally Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102,
130, 942 A.2d 396 (2008) (under § 31–294c (b), if
employer neither timely pays nor timely contests liabil-
ity, conclusive presumption of compensability attaches
and employer is barred from contesting employee’s
right to receive compensation on any ground or extent
of employee’s disability). Unlike the present case, the
defendant employer in Dubrosky did not contest liabil-
ity; it contested only the extent of the plaintiff’s disabil-
ity. Dubrosky v. Boehringer Ingelheim Corp., supra,
266.
The plaintiff in Dubrosky fell during a work related
business call on January 9, 2009, and injured his knee.
Id., 264. He reported the injury to his supervisor on
January 12, 2009, but did not seek immediate medical
attention or miss time from work. Id. More than one
month later, on February 18, 2009, the plaintiff filed a
form 30C seeking compensation for the injury to his
knee. Id., 265. Beginning on February 27, 2009, the plain-
tiff began seeking medical treatment from various pro-
viders, but the defendant did not begin receiving bills
for the plaintiff’s injury until June, 2009, which bills it
paid. Id. On October 20, 2009, the defendant employer
filed a form 43 contesting the plaintiff’s claim. Id. The
defendant also filed a motion to dismiss the claim, and
the plaintiff filed a motion to preclude the defendant
from contesting liability and the extent of disability.
Id., 266. At a January 31, 2011 hearing, the defendant
withdrew its motion to dismiss and accepted the plain-
tiff’s claim, but it argued that it should be permitted
to contest the extent of the plaintiff’s disability and,
therefore, that the motion to preclude should be denied.
Id. The commissioner granted the motion to preclude
the defendant from contesting both liability and the
extent of disability because, although the defendant
could not have commenced payment within twenty-
eight days, it could have filed a form 43 during that
period. Id. The board upheld the commissioner’s deci-
sion. Id., 267.
On appeal to this court, the defendant claimed that
the board improperly affirmed the decision of the com-
missioner. Id. It argued that it could not have complied
with § 31-294c (b) to contest its liability because no
medical bills had been generated within the twenty-
eight statutory time period. Id. This court concluded
that ‘‘it was not reasonably practical for the board to
require the defendant to have complied with § 31-294c
(b) . . . .’’ Id. We reasoned that the defendant could
not have commenced payment of medical bills because
no bills had been submitted for payment, and the defen-
dant could not be required to file a form 43 within
twenty-eight days of the plaintiff’s claim because the
defendant was not contesting liability; it was contesting
only the extent of disability. Id., 271.
In Dubrosky, this court explained that there is an
important distinction between an employer who is con-
testing liability and one who solely is contesting the
extent of the employee’s disability: ‘‘This distinction is
not a superficial one, as an employer who is contesting
liability is distinguishable from one who solely contests
the extent of the disability. For example, in Adzima v.
UAC/Norden Division, 177 Conn. 107, 113, 411 A.2d 924
(1979), our Supreme Court recognized the difference
between an employer contesting the extent of the
employee’s disability instead of its liability: The statute
clearly speaks to a threshold failure on the employer’s
part to contest liability: to claim, for example, that the
injury did not arise out of and in the course of employ-
ment . . . that the injury fell within an exception to the
coverage provided by [workers’] compensation . . . or
that the plaintiff was not an employee of the defendant,
but an independent contractor . . . . See id., 114 (no
question that [employee’s] injury was a compensable
injury within the terms of the [workers’] compensation
statute, i.e., that he had a right to receive compensation;
the only contest concerned the extent of his lower back
disability).’’ (Internal quotation marks omitted.)
Dubrosky v. Boehringer Ingelheim Corp., supra, 145
Conn. App. 271–72; see also Adzima v. UAC/Norden
Division, supra, 113–14 (conclusive presumption does
not bar employer, who has accepted liability and paid
benefits on claim, from contesting extent of disability).
This court, in Dubrosky, then distinguished how the
defendant in that case had been placed in a situation
that the act had not contemplated: ‘‘The circumstances
of this case, however, place the defendant squarely
within a situation that the statutory scheme fails to
contemplate, namely, where an employee files a form
30C claim for which the employer does not contest lia-
bility but fails to generate medical bills within twenty-
eight days for the employer to commence payment. To
require strict compliance in a case such as this creates
an incentive for claimants to deliberately delay seeking
medical treatment until the very end of the twenty-eight
day period such that the employer cannot file a timely
form 43 to avoid being precluded from contesting the
extent of the claimant’s disability because no medical
bills are generated sufficiently within the statutory time
period to allow the employer to commence payment.
. . .
‘‘Thus, where notice, by filing a form 43 or commenc-
ing medical payments is impossible to provide in a
timely manner, the failure to comply strictly with § 31-
294c (b) will not preclude the employer from contesting
the extent of the employee’s disability. . . . Finally,
we note the limited applicability of this excusing of
strict compliance because in the vast majority of work-
ers’ compensation cases it will be possible for an
employer either to file a truthful form 43 because it
is actually contesting liability or to pay medical bills
generated by the claimant within twenty-eight days. As
neither option was available to the defendant under
the circumstances of this case, it should not be pre-
cluded from contesting the extent of the plaintiff’s dis-
ability when it filed its form 43 [seeking to contest only
the extent of disability] within one year from the date
of the injury.’’ (Citations omitted; emphasis added;
internal quotation marks omitted.) Dubrosky v. Boeh-
ringer Ingelheim Corp., supra, 145 Conn. App. 273–75.
The Dubrosky case is similar to the present case only
insofar as the defendant in Dubrosky did not file a form
43 within twenty-eight days of the plaintiff’s claim, and
it was unable to commence payment within twenty-
eight days because no medical bills had been submitted
during that time and the plaintiff continued to work.
See id. The defendant in Dubrosky, however, began
paying medical bills upon receipt, and it then filed a
form 43 to contest the extent of the plaintiff’s disability.
See id., 265. This court held that, under such circum-
stances, when a defendant employer does not challenge
the claim of a work related injury, but challenges only
the extent of the plaintiff’s disability, strict compliance
with the twenty-eight day statutory timeframe to begin
payment of benefits will be excused when it is impossi-
ble for the plaintiff to comply. Id., 273–75. In Dubrosky,
the defendant complied with the statute insofar as it
was able, by commencing payment of medical bills
when they were received and then filing a form 43 to
challenge the extent of the plaintiff’s disability.
Although the defendant may have been precluded from
challenging that the plaintiff’s claim was work related,
it was not precluded from challenging the extent of the
plaintiff’s disability because it began payments as soon
as it could and it then filed a form to contest the extent
of the plaintiff’s disability. Consequently, the ‘‘safe har-
bor’’ discussed in Dubrosky applies only when the
employer is contesting the extent of the employee’s
injury, and does not apply to an employer who is con-
testing liability.
In the present case, although the defendant could
not commence payment within the twenty-eight day
statutory time period because the plaintiff’s bills were
submitted several years later, it certainly could have
filed its form 43 contesting liability within twenty-eight
days of when it received the plaintiff’s form 30C. In
fact, although the defendant did not timely file its form
43 with the commission, it did serve the plaintiff with
a copy of it within the statutorily prescribed time. In that
form 43, which was untimely transmitted by facsimile
to the commission, the defendant specifically alleged
that the plaintiff’s injuries ‘‘did not arise out of or in
the course of her employment at [the defendant] and
cannot be causally traced to such employment in accor-
dance with [§] 31-275.’’ Because the defendant was not
seeking solely to contest the extent of the plaintiff’s
disability, but, rather, was contesting its liability for
the plaintiff’s claim, i.e., contesting that her repetitive
trauma injuries were work related, it was not impossible
for the defendant to file a form 43 disclaiming its liability
within the statutory twenty-eight day timeframe.
Accordingly, Dubrosky is not only distinguishable from
the present case, but it actually reinforces the require-
ment that an employer who is contesting liability must
strictly comply with the filing requirements of § 31-
294c (b).
Because the defendant failed to file a form 43 to
contest its liability for the plaintiff’s work related repeti-
tive trauma claim within twenty-eight days of the plain-
tiff’s filing of her claim, we conclude that the plaintiff’s
motion to preclude the defendant from contesting lia-
bility should have been granted.
The decision of the Compensation Review Board is
reversed and the case is remanded to the board with
direction to reverse the decision of the commissioner
denying the plaintiff’s motion to preclude and to remand
the case to the commissioner for further proceedings
according to law.
In this opinion the other judges concurred.
1
General Statutes § 31-301b provides: ‘‘Any party aggrieved by the decision
of the Compensation Review Board upon any question or questions of law
arising in the proceedings may appeal the decision of the Compensation
Review Board to the Appellate Court, whether or not the decision is a final
decision within the meaning of section 4-183 or a final judgment within the
meaning of section 52-263.’’
2
‘‘A form 30C is the name of the form prescribed by the workers’ compen-
sation commission of Connecticut for use in filing a notice of claim under the
[Workers’ Compensation Act, General Statutes § 31-275 et seq.].’’ (Internal
quotation marks omitted.) Wiblyi v. McDonald’s Corp., 168 Conn. App. 77,
80 n.5, 144 A.3d 1075 (2016).
3
‘‘A form 43 is a disclaimer that notifies a claimant who seeks workers’
compensation benefits that the employer intends to contest liability to pay
compensation. If an employer fails timely to file a form 43, a claimant may
file a motion to preclude the employer from contesting the compensability
of his claim. . . . The form 43 generally must be filed within twenty-eight
days of receiving written notice of the claim.’’ (Citation omitted; internal
quotation marks omitted.) Wiblyi v. McDonald’s Corp., 168 Conn. App. 77,
79 n.2, 144 A.3d 1075 (2016); see General Statutes § 31-294c.
4
The defendant filed a motion to bifurcate the motion to preclude from the
other issues pending before the commission. The plaintiff had no objection
to bifurcation, and the commissioner granted the motion.
5
Following her appeal to the board, the plaintiff also filed a motion to
correct the commissioner’s findings and conclusion, which the commis-
sioner denied.
6
General Statutes § 31-294c (b) provides in relevant part: ‘‘Whenever liabil-
ity to pay compensation is contested by the employer, he shall file with the
commissioner, on or before the twenty-eighth day after he has received a
written notice of claim, a notice in accord with a form prescribed by the
chairman of the Workers’ Compensation Commission stating that the right
to compensation is contested, the name of the claimant, the name of the
employer, the date of the alleged injury . . . and the specific grounds on
which the right to compensation is contested. The employer shall send a
copy of the notice to the employee in accordance with section 31-321. If
the employer or his legal representative fails to file the notice contesting
liability on or before the twenty-eighth day after he has received the written
notice of claim, the employer shall commence payment of compensation
for such injury . . . on or before the twenty-eighth day after he has received
the written notice of claim, but the employer may contest the employee’s
right to receive compensation on any grounds or the extent of his disability
within one year from the receipt of the written notice of claim, provided
the employer shall not be required to commence payment of compensation
when the written notice of claim has not been properly served in accordance
with section 31-321 or when the written notice of claim fails to include a
warning that (1) the employer, if he has commenced payment for the alleged
injury . . . on or before the twenty-eighth day after receiving a written
notice of claim, shall be precluded from contesting liability unless a notice
contesting liability is filed within one year from the receipt of the written
notice of claim, and (2) the employer shall be conclusively presumed to
have accepted the compensability of the alleged injury . . . unless the
employer either files a notice contesting liability on or before the twenty-
eighth day after receiving a written notice of claim or commences payment
for the alleged injury . . . on or before such twenty-eighth day. An employer
shall be entitled, if he prevails, to reimbursement from the claimant of any
compensation paid by the employer on and after the date the commissioner
receives written notice from the employer or his legal representative, in
accordance with the form prescribed by the chairman of the Workers’ Com-
pensation Commission, stating that the right to compensation is contested.
Notwithstanding the provisions of this subsection, an employer who fails
to contest liability for an alleged injury . . . on or before the twenty-eighth
day after receiving a written notice of claim and who fails to commence
payment for the alleged injury . . . on or before such twenty-eighth day,
shall be conclusively presumed to have accepted the compensability of the
alleged injury . . . .’’
7
General Statutes § 31-321 requires that ‘‘[u]nless otherwise specifically
provided, or unless the circumstances of the case or the rules of the commis-
sion direct otherwise, any notice required under this chapter to be served
upon an employer, employee or commissioner shall be by written or printed
notice, service personally or by registered or mail addressed to the person
upon whom it is to be served at the person’s last-known residence or place
of business. Notices on behalf of a minor shall be given by or to such minor’s
parent or guardian or, if there is no parent or guardian, then by or to
such minor.’’
8
Form 43 contains the following language, printed across the bottom of
the form: ‘‘This notice must be served upon the Commissioner and Employer
(or representative, if applicable) by personal presentation or by registered
or certified mail. When medical care is the issue for contest, send a copy
of this form to the medical provider also. For the protection of both parties,
the claimant should note the date when this notice was received and the
employer/insurer should keep a copy of this notice with the date it was
served.’’ (Emphasis omitted.)
9
We are aware that § 31-294c (c) contains a savings provision for a defect
in an employee’s notice of claim: ‘‘No defect or inaccuracy of notice of
claim shall bar maintenance of proceedings unless the employer shows
that he was ignorant of the facts concerning the personal injury and was
prejudiced by the defect or inaccuracy of the notice.’’ General Statutes § 31-
294c (c). The extent to which this provision may save a form 30C that was
not served in accordance with § 31-321 is not before us. We note, however,
that § 31-294c (c) contains no language that extends this savings provision
to an employer filing a disclaimer.
10
We note that, in the present case, our construction of § 31-294c (b) is
guided by appellate case law and our Supreme Court’s interpretation of the
statute, which it has determined to be ambiguous. See Donahue v. Veridiem,
Inc., 291 Conn. 537, 547–49, 970 A.2d 630 (2009) (§ 31-294c [b] is not plain
and unambiguous on issue of employer’s role once preclusion has been
granted); Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102, 111, 942 A.2d
396 (2008) (§ 31-294c (b) does not yield plain meaning on issue of preclusion).
Additionally, the worker’s compensation section of the Connecticut Practice
Series has indicated that there is confusion regarding § 31-294c (b) and that
the chairman of the board repeatedly has called for legislative guidance on
the issue of preclusion. See R. Carter et al., 19 Connecticut Practice Series:
Workers’ Compensation (Supp. 2018–2019) § 18:11, pp. 448–50.
11
We assume that the board is referring to the twenty-eight day period
after the plaintiff filed her form 30C.