CASE NO. 4185 CRB-4-00-2
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 10, 2001
DWAYNE D. SCOTT
WAL-MART STORES, INC.
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA
The claimant was represented by Michael P. Foley, Jr., Esq., 1120 South Main Street, P. O. Box 814, Cheshire, CT 06410-0814.
The respondents were represented by Deirdre J. Lewis, Esq., Kenny, Brimmer, Melley & Mahoney, 5 Grand Street, Hartford, CT 06106-1505.
This Petition for Review from the February 3, 2000 order of the Commissioner acting for the Fourth District was heard September 15, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the February 3, 2000 order entitled “Granting of Motion to Preclude” by the Commissioner acting for the Fourth District. They raise two contentions on appeal: that the trier erroneously ruled that the claimant’s notice of claim (Form 30C) contained adequate information to support preclusion under § 31-294c, and that the preclusion remedy was inappropriate in this case because the employer had filed a timely notice of its intention to contest liability (Form 43). The respondents have also filed a Motion to Submit Additional Evidence in support of their cause. Though their appeal is not frivolous, as the claimant has proposed, we do affirm the trial commissioner’s ruling.
Included in the trier’s decision were the following relevant findings: on July 20, 1998, the claimant was employed as a sales associate at the Wal-Mart store in Shelton. He sustained injuries to his cervical and lumbar spine on that date while lifting a television set during the course of his employment. He began treating for acute neck and back pain on July 31, 1998, and timely filed a Form 30C via certified mail on October 16, 1998 with his employer and this Commission. (Claimant’s Exhibit A). The respondents did not contest the notice of claim, and the claimant then moved to preclude them from contesting the compensability of his neck and back injuries. The trier granted that motion in accordance with § 31-294c(b), which led to the instant appeal.
Behind this concise set of findings lies a more complex history of events that must be discussed in order to place the respondents’ appellate arguments into the appropriate context, including their Motion to Submit Additional Evidence. According to the documentary and computer records of this Commission, the claimant filed a Form 30C on August 17, 1998, alleging that he injured his neck and lower back on July 20, 1998 while placing a TV set in a customer’s automobile. This form was signed by the claimant on August 10, 1998, with no mention of representation by counsel. A second Form 30C was filed on the claimant’s behalf on October 16, 1998, also reciting a July 20, 1998 neck and back injury while lifting a television set into a customer’s vehicle. The only notable distinction between the content of this notice and the previous one was that the second notice was signed by Attorney Michael P. Foley, Jr., who remains the claimant’s legal representative. The most significant difference regarding the eventual handling of the two Forms 30C was that the latter was introduced into evidence as Claimant’s Exhibit A, while the former was never mentioned at trial.
Conversely, our physical and computer records do not contain a Form 43 or a substantially similar document that purports to contest the compensability of the claimant’s injury on behalf of the respondents. The absence of such a notice perhaps presaged the filing of a Motion to Preclude by claimant’s counsel on May 20, 1999, as noted above. During the September 22, 1999 formal hearing, the respondents contested the Motion to Preclude by trying to demonstrate that the claimant’s Form 30C contained a “jurisdictional” defect, i.e., an incorrect date of injury. We have held that, in accidental injury cases, the date of injury is an essential element of a Form 30C, and a significant error in that date may provide a commissioner with sufficient basis to deny a Motion to Preclude that is based on said notice. Simmons v. Bonhotel, 13 Conn. Workers’ Comp. Rev. Op. 234, 1778 CRB-5-93-7 (April 13, 1995), aff’d, 40 Conn. App. 278 (1996). The respondents attempted to show that the claimant might not have been injured on July 20, 1998, as he filed an injury report with his employer on August 5, 1998 listing a June 13, 1998 date of injury. See, e.g., Transcript, pp. 47-50. In the process, they attempted to introduce as an exhibit a copy of a Form 43 contesting a June 13, 1998 back injury; Respondents’ Exhibit 7 for ID; but the trier sustained the objection of the claimant’s attorney that this document was inadmissible hearsay. Id., 76-80. The Finding and Award ultimately indicates, of course, that the commissioner was unpersuaded by the “incorrect date of injury” defense, as he granted the claimant’s Motion to Preclude.
In resolving this appeal, we must first ask ourselves whether the granting of a Motion to Preclude technically implicates the subject matter jurisdiction of this Commission in the same manner as does the existence of an employment relationship under § 31-275(9) C.G.S., or the filing of a timely notice of claim under § 31-294c. See, e.g., Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181, 187 (1991) (delineating distinction between subject matter jurisdiction question re: locus of injury and conflict of laws question raised in that case); Discuillo v. Stone & Webster, 242 Conn. 570, 575 (1997) (notice and filing prerequisites of § 31-294c are jurisdictional, and claimant may not bring action unless statutory criteria have been met). Should we answer this question in the positive, we would then have to consider the respondents’ claims in a different light, as questions implicating the subject matter jurisdiction of this Commission (and this board) may be raised at any time. Peters v. State/Southern Connecticut State University, 10 Conn. Workers’ Comp. Rev. Op. 32, 1103 CRD-3-90-8 (Jan. 13, 1992). After careful consideration of the matter, however, we do not believe that the granting or denial of a Motion to Preclude under § 31-294c(b) implicates the subject matter jurisdiction of the Workers’ Compensation Commission in the same manner as does the requirement that timely notice be filed under § 31-294c(a).
Once timely notice of a claim is filed, the trial commissioner has jurisdiction to consider the action; otherwise, he has no such authority. This Commission must dismiss all actions in which timely notice is lacking, as subject matter jurisdiction is necessarily absent. Thus, timely notice is a jurisdictional issue that can be raised at any time. A Motion to Preclude, however, does not affect the subject matter jurisdiction of this Commission to entertain a particular claim. Instead, it acts as a statutorily-created waiver mechanism that requires the commissioner to forbid a respondent from raising defenses to its liability for an ostensibly compensable injury if a disclaimer is not submitted within 28 days of the filing of a suitable Form 30C. Whether such a motion is granted or denied, a commissioner retains subject matter jurisdiction over the underlying action, as well as personal jurisdiction over the Connecticut employer who has allegedly failed to respond to a claimant’s Form 30C in a timely manner. It would appear to be a stretch, therefore, to label the preclusion of certain defenses as a jurisdictional issue.
In their Motion to Submit Additional Evidence, the respondents—now represented by different counsel on appeal—wish to reintroduce this Form 43 into the record as an exhibit, this time with copies of certified mail return receipts indicating that the Form 43 was received by an employee of this Commission’s Fourth District office on August 21, 1998. They contend, “Such evidence is inexplicably not a part of the Commission’s records and is of material value to the issue at hand.” In truth, we are no more able than the respondents to explain why this document was apparently not entered into the record upon its delivery to this Commission. Neither the district file nor our computer system contain any trace or mention of a Form 43, or any other document received on August 21, 1998. However, the standard for introducing new evidence on appeal is set by Admin. Reg. § 31-301-9, which requires the moving party to assert “that there were good reasons for failure to present [such evidence] in the proceedings before the commissioner.” Whatever the error, if any, on the part of this agency, the respondents admittedly do not know why counsel did not act at the formal hearing to offer the certified mail receipts as proof that the Form 43 was delivered in August of 1998. Given that these receipts must have existed at the time of the September 1999 formal hearing, and were presumably discoverable, we may not now admit them via a Motion to Submit Additional Evidence. See Crouse v. A.A.I.S., Inc., 3797 CRB-3-98-4 (June 16, 1999); Granata v. Waldbaum’s, 3742 CRB-3-97-12 (March 11, 1999).
Our ruling on the Motion to Submit Additional Evidence effectively disposes of the respondents’ argument that they issued a Form 43 on August 21, 1998, in compliance with § 31-294c. Though there is tangential evidence in Respondents’ Exhibit 3 that they sent such a form to the claimant and to this Commission, the trial commissioner did not err when he declined to admit their insufficiently authenticated copy of an undated Form 43 as a full exhibit at trial. See Capra v. State/Department of Correction, 3791 CRB-4-98-4 (April 27, 1999) (trial commissioner has broad discretion to determine admissibility of evidence under § 31-298 C.G.S.); Tanzi v. New Britain, 3420 CRB-6-96-9 (April 28, 1998). In fact, the proffered Form 43 recited a June 13, 1998 date of injury (as mentioned above), which would raise doubt as to whether it sufficiently contested either of the Forms 30C in our record, both of which recite a July 20, 1998 injury date. See Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 620-21 (2000) (use of incorrect accidental injury date in disclaimer rather than correct repetitive trauma injury date failed to satisfy requirement of § 31-294c(b)). There is no reason to suspect that the trier’s exclusion of the undated, photocopied Form 43 was an abuse of discretion. We also note for the respondents’ enlightenment that it is irrelevant under § 31-294c whether or not a claimant has actually been prejudiced by an employer’s failure to formally disclaim liability. Menzies v. Fisher, 165 Conn. 338, 346 (1973) (legislature intended that deficient notice of disclaimer would be presumed to operate prejudicially against claimant).
In the absence of a legally cognizable notice of intent to contest liability to pay compensation, the respondents would be forced to accept liability for the claimant’s injury as long as his Form 30C was sufficient to trigger their obligation to respond in the first place. Indeed, the respondents do not forsake the opportunity to raise that defense: they contend that the claimant’s Form 30C provided them with insufficient information to properly investigate this claim because no injury occurred on July 20, 1998. The chief problem with this assertion is that the trial commissioner found that the injury did occur on July 20, 1998, based on testimony by the claimant that the trier was entitled to deem persuasive. Findings, ¶¶ 2, A, B. Despite the respondents’ exhortations that confusion surrounds the proper date of the claimant’s injury, the trier’s finding comports precisely with the date on the claimant’s notice.
In workers’ compensation cases, the presiding trial commissioner functions as the sole finder of fact, and is empowered to resolve all issues that concern the weight and credibility of the evidence, including the testimony of all witnesses. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). On review, this board may not disregard the trier’s assessments of credibility. Id. We may only disturb the trier’s findings if they are without support in the evidence or if they happen to omit undisputed material facts. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Pallotto, supra. As the claimant’s own testimony adequately supports his claim that he was injured on July 20, 1998, we have no standing to disturb the commissioner’s finding that this date of injury was correct. Thus, the date on the Form 30C must be considered accurate. As the notice of claim was not defective, the respondents were obligated to file a timely Form 43 under § 31-294c(b) if they wished to contest liability for this claim. We have found that this was not done. Therefore, the claimant’s Motion to Preclude was properly granted.
We dismiss the claimant’s request that costs be awarded in its favor based on its allegation that this appeal was frivolous and vexatious. Those rare cases in which we have awarded such costs have been cases where the appellants have failed to offer any arguments in support of their appeal and attempted to withdraw it at the last minute; Yuille v. Bridgeport Hospital, 3735 CRB-4-97-12 (June 10, 1998); or have failed to withdraw their appeals despite the resolution of the underlying cases. In re Veterans’ Memorial Medical Center, 3063 CRB-8-95-5 (March 14, 1997). Though the respondents did not prevail here, their appellate counsel zealously pursued their case, and presented arguments that required serious deliberation before this matter could be resolved. We observe little similarity between the instant action and those appeals in which sanctions have been imposed against dilatory appellants. Also, we note that the claimant is entitled under § 31-301c(b) to interest on any benefits that were due him pending appeal, but remained unpaid during its pendency. That measure of relief should suffice here.
The trial commissioner’s decision is hereby affirmed.
Commissioners Robin L. Wilson and Leonard S. Paoletta concur.