Wiblyi v. McDonald's Corp. , 168 Conn. App. 77 ( 2016 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
JOHN M. WIBLYI, JR. v. MCDONALD’S
CORPORATION ET AL.
(AC 37303)
DiPentima, C. J., and Lavine and Mullins, Js.
Argued April 6—officially released September 6, 2016
(Appeal from Workers’ Compensation Review Board.)
Jennifer B. Levine, with whom was Harvey L.
Levine, for the appellant (plaintiff).
John B. Cantarella, for the appellees (defendants).
Opinion
MULLINS, J. The plaintiff, John M. Wiblyi, Jr., appeals
from the decision of the Workers’ Compensation
Review Board (board)1 remanding, in part, and ordering
the Workers’ Compensation Commissioner (commis-
sioner) to conduct further proceedings on the plaintiff’s
motion to preclude the form 43 disclaimer2 filed by the
defendant McDonald’s Corporation.3 We conclude that
the board improperly remanded the matter with direc-
tion that the commissioner, essentially, reconsider his
findings on the ground that there were ‘‘ambiguities in
the record . . . .’’
We begin with the underlying facts as found by the
commissioner. After hearing the evidence presented on
the plaintiff’s motion to preclude, the commissioner
issued the following written decision:
‘‘1. This matter has been the subject of many hearings,
including a [Workers’ Compensation Review Board]
appeal that affirmed a bifurcation issue in regards to
the motion to preclude issue before the undersigned.
‘‘2. In regards to this motion to preclude issue, the
[plaintiff], citing case law, contends [that] the [defen-
dant] . . . should be precluded from contesting the lia-
bility of this claim and seeks an award of benefits.
‘‘3. The [defendant] . . . contends the motion to pre-
clude should be denied based on several grounds, par-
ticularly laches and prejudice, and the liability of this
matter should be determined on the merits.4
‘‘4. The [plaintiff] properly filed a timely notice of
claim on [June 28, 2000] for a [September 8, 1999] injury.
‘‘5. The [defendant] . . . did not file a form 43 denial
within twenty-eight days of receipt of the form 30C.5
‘‘6. The claim was dormant for many years. Many of
the original handlers of the claim for the [defendant]
are no longer available and some documents no
longer exist.
‘‘7. Testimony from both sides was heard, as well as
oral argument. Exhibits A through F, and one through
four, were entered into the record.
‘‘WHEREFORE, BASED ON ALL THE EVIDENCE, I
HEREBY . . . CONCLUDE THAT:
‘‘8. Based on the totality of the circumstances, I
hereby deny the [plaintiff’s] motion to preclude. I am
persuaded by the [defendant’s] position on this issue,
particularly as to the laches and prejudice claim, as this
motion to preclude was filed eleven years after the filing
of the [September 8, 1999] injury claim. See Kalinowski
v. Meriden, [No. 5028, CRB-8-05-11 (January 24, 2007)].
See also prejudice section in General Statutes § 31-294.6
The Harpaz/Donahue line of cases do not apply, as
this may now constitute an exception. [See Harpaz v.
Laidlaw Transit, Inc., 286 Conn. 102, 942 A.2d 396
(2008), and Donahue v. Veridiem, Inc., 291 Conn. 537,
970 A.2d 630 (2009).]
‘‘9. This matter shall now proceed on the merits.
‘‘10. This matter shall remain open subject to future
hearings at the request of the parties or district office.
‘‘IT IS SO ORDERED.’’ (Footnotes added.)
Following the commissioner’s denial of the motion
to preclude, both the plaintiff and the defendant filed
motions to correct. The plaintiff requested that the com-
missioner delete paragraph six of his decision and
delete paragraph eight and change his conclusion. The
defendant requested that the commissioner modify
paragraph four to state, in part, that there was no credi-
ble evidence that the plaintiff properly served notice
of claim on the defendant, and delete paragraph five in
its entirety. The commissioner entered simple denials
on both motions.
Thereafter, both the plaintiff and the defendant
appealed to the board. The plaintiff appealed on the
ground that the commissioner erred as a matter of law
by applying the equitable defense of laches. The defen-
dant cross appealed on the ground that the plaintiff
failed to prove, as a matter of law and fact, that a ‘‘form
30C was filed upon the [defendant] . . . according to
Connecticut law such that the 28 [day] rule to file a
denial was triggered . . . .’’
After hearing the appeal, the board agreed with the
plaintiff that the equitable doctrine of laches did not
apply, holding: ‘‘Nowhere in [§ 31-294c (b)] did the legis-
lature indicate that a [defendant] can defeat an other-
wise valid motion to preclude through the affirmative
defense of laches . . . .’’7
In considering the defendant’s claim that the plaintiff
had failed to prove that he had filed a form 30C with the
defendant, which would have triggered the defendant’s
obligation to file a form 43 disclaimer within twenty-
eight days, the board found that the record contained
ambiguities and that the case needed to be remanded for
further proceedings. Specifically, the board concluded
that the commissioner failed to provide the ‘‘subordi-
nate findings in support of [his] conclusion . . . [and
that] . . . [its] review of the totality of the evidence
reveals ambiguities in the record [that] would not neces-
sarily support the inferences apparently drawn by the
trier.’’ The board noted that there were no ‘‘green cards’’
in evidence to support the plaintiff’s assertion that he
mailed both form 30Cs by certified mail and that, there-
fore, it was likely that the commissioner relied on the
plaintiff’s testimony to support a finding that the plain-
tiff properly served the form 30C.
The board also correctly pointed out that it is the
responsibility of the commissioner to assess the credi-
bility of witnesses, but it then stated that ‘‘in the instant
matter, there exist inconsistencies in the testimony
which do not allow us to afford the customary deference
we generally extend to credibility findings.’’ The board
then examined areas of inconsistencies in the record,8
and found that ‘‘the documentary evidence submitted
into the instant record is not consistent with either the
stipulation9 offered by [the defendant’s] counsel or the
[plaintiff’s] testimony. In light of this ambiguity, it sim-
ply cannot be determined whether the [plaintiff] pro-
vided sufficient notice of his claim to the [defendant].’’
(Footnote added.) The board then concluded that the
commissioner should not have denied the motions to
correct ‘‘insofar as the trial commissioner’s denial of
the proposed corrections was inconsistent with the
findings presented herein,’’ and it remanded the case
‘‘for additional proceedings consistent with [its] opin-
ion.’’ Both parties then appealed to this court.10 The
plaintiff’s appeal is considered herein; the defendant’s
appeal is considered in AC 37304, Wiblyi v. McDonald’s
Corp., 168 Conn. App. 92, A.3d (2016), issued
today also.
On appeal, the plaintiff contends that the board went
well beyond its authority and abused its discretion by
attempting to weigh the credibility of the witnesses who
testified before the commissioner and by attempting to
retry the facts of the case. He argues that the obligation
to weigh credibility and to decide contested issues of
fact lies with the commissioner. He further argues that,
provided there is evidence in the record to support the
commissioner’s findings, the board is without authority
to remand the matter for the commissioner to reassess
the evidence simply because the facts were disputed,
and the board did not like the manner in which the
commissioner weighed the evidence and made his
findings.
We conclude that, although there were inconsisten-
cies and conflicts in the evidence presented to the com-
mission, the commissioner’s findings were not
inconsistent or contradictory; they were supported by
the evidence. Accordingly, we further conclude that
the board improperly reassessed the credibility of the
witnesses and weighed the evidence, thereby usurping
the authority of the commissioner.
We begin by setting forth the well established stan-
dard of review applicable to workers’ compensation
appeals. ‘‘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 conclusions drawn by [the com-
missioner] 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 construction given to the
workers’ compensation statutes by the commissioner
and review board. . . . Cases that present pure ques-
tions of law, however, invoke a broader standard of
review than is ordinarily involved in deciding whether,
in light of the evidence, the agency has acted unreason-
ably, arbitrarily, illegally or in abuse of its discretion.
. . . We have determined, therefore, that the traditional
deference accorded to an agency’s interpretation of a
statutory term is unwarranted when the construction
of a statute . . . has not previously been subjected to
judicial scrutiny [or to] . . . a governmental agency’s
time-tested interpretation . . . . Furthermore, [i]t is
well established that, in resolving issues of statutory
construction under the act, we are mindful that the
act indisputably is a remedial statute that should be
construed generously to accomplish its purpose. . . .
The humanitarian and remedial purposes of the act
counsel against an overly narrow construction that
unduly limits eligibility for workers’ compensation.
. . . Accordingly, [i]n construing workers’ compensa-
tion law, we must resolve statutory ambiguities or lacu-
nae 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.’’ (Cita-
tions omitted; internal quotation marks omitted.) Hart
v. Federal Express Corp., 321 Conn. 1, 18–19, 135 A.3d
38 (2016); see also Regs., Conn. State Agencies § 31-
301-8.11
‘‘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.’’ (Internal quotation marks omitted.)
Dubrosky v. Boehringer Ingelheim Corp., 145 Conn.
App. 261, 268, 76 A.3d 657, cert. denied, 310 Conn. 935,
78 A.3d 859 (2013).
‘‘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).12 If the notice of
claim is adequate but the employer fails to comply with
the statute, then the motion to preclude must be
granted.’’ (Internal quotation marks omitted.) Id.
Here, the plaintiff contends that the board abused its
discretion by ordering the commissioner to hold further
proceedings because there were ambiguities in the evi-
dence used by the commissioner in making his findings.
The plaintiff argues that the commissioner’s findings,
which have support in the evidence, are binding on
the board. The defendant argues that the board acted
properly because ‘‘[t]he [plaintiff] has not met [his] bur-
den of proof by a preponderance of evidence, as a
matter of law, that the [plaintiff] properly served [the]
notice of claim to [the defendant], thereby ‘triggering’
the preclusion statute.’’13 Throughout its brief, the
defendant argues about the lack of credibility in the
plaintiff’s evidence. We agree with the plaintiff.
‘‘Whether a case should be remanded [to the commis-
sioner], and the scope of that remand, presents ques-
tions to be determined by the compensation review
board in the exercise of its sound discretion. . . . The
actions of the board will not be disturbed unless the
board has abused its broad discretion.’’ (Citation omit-
ted; internal quotation marks omitted.) Fantasia v. Mil-
ford Fastening Systems, 86 Conn. App. 270, 278, 860
A.2d 779 (2004), cert. denied, 272 Conn. 919, 866 A.2d
1286 (2005). ‘‘In workers’ compensation cases, motions
[for articulation] are granted when the basis of the
commissioner’s conclusion is unclear. . . . When a
commissioner’s findings are too ambiguous to serve as
a basis for appellate review, it may be appropriate for
the reviewing court to remand the case to the commis-
sioner for further articulation.’’14 (Citation omitted;
internal quotation marks omitted.) Id., 280.
In this case, the commissioner specifically found that
the plaintiff properly had filed a timely notice of claim
on June 28, 2000, for a September 8, 1999 injury, and
that the defendant did not timely file a form 43 denial
within twenty-eight days of receipt of the form 30C.
Although we certainly agree with the board that there
is conflicting evidence in the record, we conclude the
record contains evidence to support the commissioner’s
findings. See Hart v. Federal Express Corp., supra, 321
Conn. 18–19 (‘‘commissioner has the power and duty
. . . to determine the facts . . . and [n]either the . . .
board nor this court has the power to retry facts’’).
Specifically, the record contains evidence that the
plaintiff worked for the defendant during the 1990s and
was responsible for recruiting, training, safety training,
and workers’ compensation matters. He became the
senior human resource person, and he had a ‘‘strong
knowledge’’ of workers’ compensation. His job duties
included accepting and denying workers’ compensation
claims that would be sent from the defendant’s employ-
ees. The plaintiff testified that he was aware that form
30C had to be sent by certified mail.15
The record also reveals that, on September 8, 1999,
the plaintiff injured his knees when he fell in the mail
room at work, and that his injury was witnessed by a
coworker, Frank Niceta. The plaintiff also testified that,
while sitting in his office cubicle at the defendant’s
premises in June, 2000, he filled out and ‘‘certainly’’
mailed a copy of form 30C to both the defendant and
the commissioner.16 He believed that he sent them both
via certified mail, but he no longer had the green certi-
fied mail cards as proof. He also testified that, because
Niceta was aware of the injury and the form 30C, his
filling out the form at his desk also qualified as notice
to the defendant. The record also reveals that the com-
missioner received the plaintiff’s form 30C on June 28,
2000, and marked it ‘‘Received Certified’’ on that date.
On August 3, 2000, the commissioner also received by
certified mail a form 43 from the defendant.
The record also reveals that Christopher James Cor-
naglia II, a human resources consultant for the defen-
dant, testified that the defendant had destroyed the
plaintiff’s records, which had been subpoenaed by the
plaintiff’s counsel. He explained that the records were
destroyed because the defendant keeps files for only
six years after an employee leaves his employment with
the defendant. In response to that testimony, Cornaglia
specifically was asked by the plaintiff’s attorney: ‘‘Are
you saying, your testimony is that [the defendant]
shreds and throws out or rips up or disposes . . . in
some manner all workers’ compensation files that are
claimed in a timely fashion within six years? Because
they are making new law if they are doing that. Is that
what your testimony is?’’ Cornaglia responded: ‘‘Files
are kept for six years after employment.’’17 The plain-
tiff’s counsel then asked the commissioner to make ‘‘a
negative inference . . . with regards to whether [the
defendant] . . . actually [had] in [its] possession the
green cards or the receipt certifications or stamped-in
items with regards to the 30C that was filed [by the
plaintiff].’’ The commissioner responded: ‘‘That is some-
thing I’ll take up at the end.’’
On the basis of this evidence, which the commis-
sioner appears to have credited and from which he
drew reasonable inferences, the commissioner con-
cluded that ‘‘[t]he [plaintiff] properly filed a timely
notice of claim on [June 28, 2000] for a [September 8,
1999] injury’’ and that ‘‘[t]he [defendant] . . . did not
file a form 43 denial within twenty-eight days of receipt
of the form 30C.’’ We conclude that there is evidence
to support these findings and that the board abused its
discretion in remanding the matter to the commissioner
on the ground that it found ambiguity in the evidence.
The decision of the Workers’ Compensation Review
Board is reversed and the case is remanded to the board
with direction to affirm the commissioner’s decision
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.’’
We note that although § 31-301b has been amended since the events at
issue here, that amendment is not relevant to this appeal. For convenience,
we refer to the current revision of § 31-301b.
2
‘‘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.’’ (Internal quotation marks omitted.) Lamar v. Boehringer
Ingelheim Corp., 138 Conn. App. 826, 828 n.2, 54 A.3d 1040, cert. denied,
307 Conn. 943, 56 A.3d 951 (2012). The form 43 generally must be filed with
twenty-eight days of receiving written notice of the claim. See General
Statutes § 31-294c, cited in footnote 12 of this opinion.
3
Additional defendants on appeal are Bridgestone Firestone and Gallagher
Bassett Services, the defendant’s insurer. For simplicity, however, we refer
to McDonald’s Corporation as the defendant in this appeal.
We also note that the defendant has filed a separate appeal challenging
that portion of the board’s decision affirming the commissioner’s determina-
tion that laches and prejudice did not apply to this case. See Wiblyi v.
McDonald’s Corp., 168 Conn. App. 92, A.3d (2016).
4
The record reveals that the defendant opposed the plaintiff’s motion to
preclude on the basis of ‘‘(1) Improper service of the motion to preclude;
(2) a timely denial was filed under General Statutes § 31-294c (b); and
(3) laches.’’
5
‘‘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 act.’’ Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 619 n.11,
748 A.2d 278 (2000).
6
We note that § 31-294 was repealed in 1991. We assume, without deciding,
that the commissioner actually was referring to General Statutes § 31-294c.
7
This determination is the subject of a separate appeal brought by the
defendant. See Wiblyi v. McDonald’s Corp., 168 Conn. App. 92, A.3d
(2016).
8
The board pointed to conflicting evidence in the record, such as the
variance between some of the documentary evidence and the parties’ stipula-
tion of facts. We note that although the commissioner may decline, in some
instances, to accept such a stipulation or to permit a withdrawal or modifica-
tion thereof, the mere fact that there is contradictory evidence does not
render the stipulation incompetent evidence. ‘‘A formal stipulation of facts
by the parties to an action constitutes a mutual judicial admission and under
ordinary circumstances should be adopted by the court in deciding the case.
. . . A party is bound by a judicial admission unless the court, in the exercise
of a reasonable discretion, allows the admission to be withdrawn, explained
or modified.’’ (Citation omitted; internal quotation marks omitted.) Can-
tonbury Heights Condominium Assn., Inc. v. Local Land Development,
LLC, 273 Conn. 724, 745, 873 A.2d 898 (2005).
9
During the hearing before the commissioner, the plaintiff’s attorney
specifically sought clarification as to whether ‘‘there [was] any dispute [that
the plaintiff] was an employee in 1999 or at the time which he filed his form
30C.’’ The defendant’s counsel responded: ‘‘No, no.’’ The commissioner then
stated: ‘‘All right. So, let’s move on. So noted for the record. [The plaintiff]
at the time of his claimed injury of September 8, 1999, and at the time of
the filing of the 30C received by the [compensation] office on June 28, 2000,
was an employee of the [defendant]. So stipulated.’’
10
The plaintiff contends that the board essentially remanded the case to
the commissioner for an articulation, which, it argues, was improper because
no articulation is necessary. We conclude that the remand order is ambigu-
ous, but that it appears to ask the commissioner to reconsider his findings
and conclusions in light of the ambiguities in the evidence as set forth in
the board’s decision.
11
Section 31-301-8 of the Regulations of Connecticut State Agencies pro-
vides: ‘‘Ordinarily, appeals are heard by the compensation review division
upon the certified copy of the record filed by the commissioner. In such
cases the division will not retry the facts or hear evidence. It considers no
evidence other than that certified to it by the commissioner, and then for
the limited purpose of determining whether the finding should be corrected,
or whether there was any evidence to support in law the conclusion reached.
It cannot review the conclusions of the commissioner when these depend
upon the weight of the evidence and the credibility of witnesses. Its power
in the corrections of the finding of the commissioner is analogous to, and
its method of correcting the finding similar to the power and method of the
Supreme Court in correcting the findings of the trial court.’’
12
General Statutes § 31-294c provides in relevant part: ‘‘(a) No proceedings
for compensation under the provisions of this chapter shall be maintained
unless a written notice of claim for compensation is given within one year
from the date of the accident or within three years from the first manifesta-
tion of a symptom of the occupational disease, as the case may be, which
caused the personal injury . . . . Notice of a claim for compensation 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 from the accident, or the date of the first manifestation of a symp-
tom of the occupational disease and the nature of the disease, as the case
may be, and the name and address of the employee and of the person in
whose interest compensation is claimed. . . .
‘‘(b) Whenever liability 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 or death 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 or death 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 or death 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 or death 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’ Compensation 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 or death.
‘‘(c) Failure to provide a notice of claim under subsection (a) of this
section shall not bar maintenance of the proceedings if there has been a
hearing or a written request for a hearing or an assignment for a hearing
within a one-year period from the date of the accident or within a three-
year period from the first manifestation of a symptom of the occupational
disease, as the case may be, or if a voluntary agreement has been submitted
within the applicable period, or if within the applicable period an employee
has been furnished, for the injury with respect to which compensation is
claimed, with medical or surgical care as provided in section 31-294d. 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. Upon satisfactory showing of ignorance and prejudice, the employer
shall receive allowance to the extent of the prejudice. . . .’’
We note that although § 31-294c has been amended since the events at
issue here, that amendment is not relevant to this appeal. For convenience,
we refer to the current revision of § 31-294c.
13
The defendant also contends that the ‘‘motion to preclude must be
denied as no medical documentation of a work-related injury’’ was presented.
This issue is not before us, and we decline to address it.
14
‘‘Although the customary practice of the board is not a definitive indica-
tion of the boundaries of its statutory authority, it should be noted that the
board routinely has remanded cases to the commissioner for articulation
when the commissioner’s findings appeared to be inherently inconsistent.
See Ortiz v. Highland Sanitation, No. 4439 CRB-4-01-9 (November 12, 2002)
(‘[w]e have held that, where the findings of a trial commissioner appear to
be inherently inconsistent amongst themselves, or with the trier’s conclu-
sions, the correct approach is to remand the matter [to the commissioner]
for clarification’); Krajewski v. Atlantic Machine Tool Works, Inc., No. 4500,
CRB-6-02-3 (March 7, 2003) (affirming in part and remanding one issue
‘solely for an articulation of the basis of the [commissioner’s] decision to
dismiss [the] claim’); see also A. Sevarino, Connecticut Workers’ Compensa-
tion After Reforms (3d Ed. 2002) § 10.85.2, p. 1453 (‘where the facts found
are inconsistent with the Workers’ Compensation Commissioner’s conclu-
sions, the [board] will remand the matter back to the [commissioner]’).’’
(Emphasis added.) Fantasia v. Milford Fastening Systems, supra, 86 Conn.
App. 280 n.4.
One cannot conclude that a trial commissioner’s factual findings are
inherently flawed, however, merely because contradictory evidence has been
presented. It is the duty of the trier of fact to weigh such evidence and
come to a conclusion on the basis thereof. See Hart v. Federal Express
Corp., supra, 321 Conn. 18 (‘‘commissioner has the power and duty . . . to
determine the facts’’ [internal quotation marks omitted]).
15
We note that General Statutes § 31-321 also permits personal service of
form 30C on a defendant: ‘‘Unless otherwise specifically provided, or unless
the circumstances of the case or the rules of the commission direct other-
wise, 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 certified 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.’’
16
Although the defendant contests whether the plaintiff, in fact, worked
for it in June, 2000, when he filed his form 30C, during the hearing before
the commissioner, the defendant stipulated that it was not disputing whether
the plaintiff was an employee at the time he filed his form 30C. Specifically,
the plaintiff’s counsel had asked: ‘‘Is there any dispute [that the plaintiff]
was an employee in 1999 or at the time which he filed his form 30C?’’ The
defendant’s counsel responded: ‘‘No, no.’’ As set forth in footnote 9 of this
opinion, the commissioner then stated: ‘‘All right. So, let’s move on. So noted
for the record. [The plaintiff] at the time of his claimed injury of September
8, 1999, and at the time of the filing of the 30C received by the [compensation]
office on June 28, 2000, was an employee of the [defendant]. So stipulated.’’
17
Cornaglia also explained that after the six years, a limited electronic
file is maintained.