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Chance v. Leno’s Lawn Service, LLC

CASE NO. 5444 CRB-5-09-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 23, 2010

ASHLEY CHANCE

CLAIMANT-APPELLANT

v.

LENO’S LAWN SERVICE, LLC

EMPLOYER

and

SAFECO INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Leon M. Rosenblatt, Esq., Law Offices of Leon M. Rosenblatt, 10 North Main Street, Suite 214, West Hartford, CT 06107.

Respondent Leno’s Lawn Service, LLC, was represented by James D. Moran, Esq., Maher Williams, 268 Post Road, P.O. Box 550, Fairfield, CT 06824.

Respondent Safeco Insurance Company was represented by Joseph J. Passaretti, Jr., Esq., Montstream & May, L.L.P., 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033.

This Petition for Review from the March 2, 2009 Finding and Dismissal of the Commissioner acting for the Fifth District was heard on September 25, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Christine L. Engel.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the March 2, 2009 Finding and Dismissal of the Commissioner acting for the Fifth District. We find no error and accordingly affirm the decision of the Commissioner.1

The trial commissioner made the following factual findings which are pertinent to our review. The claimant was born on April 23, 1986. In April 2000, when the claimant was thirteen years old, she began working for the respondent employer, initially performing landscaping and snow removal and eventually switching to office tasks.2 Shortly after beginning her employment with the respondent employer, the claimant entered into a sexual relationship with the owner of the lawn service, Gregory Bernoi. On July 3, 2001, the claimant’s mother discovered the claimant was having sexual relations with Bernoi and called the police, who arrested Bernoi. The claimant testified that after Bernoi was arrested, their relationship became public knowledge, which caused the claimant a great deal of emotional difficulty. The claimant entered counseling and ultimately chose to leave her high school for a charter school, which she attended until two months before her graduation. The claimant subsequently completed the requirements for a high school diploma at night school.

On September 7, 2001, the claimant’s mother filed an application for victim compensation with the Office of Victim Services seeking payment for the claimant’s counseling treatment. This application was approved in February 2002. On February 1, 2002, Bernoi entered a plea of nolo contendere to the charge of sexual assault in the second degree, § 53a-71(a)(1) C.G.S. The matter was continued for sentencing and one of the conditions of probation was restitution for the claimant’s out-of-pocket counseling payments. On April 19, 2002, Bernoi received a sentence of ten years suspended after two years in prison. The judge also ordered restitution for the out-of-pocket medical expenses generated by the claimant’s counseling and mental health treatment. The disposition of the case, which did not proceed to trial, was the result of extensive negotiations among Bernoi’s criminal defense attorney, the State of Connecticut, and the claimant’s parents. At the sentencing hearing, statements written by the claimant and her mother were read aloud to the court.

At the formal hearing held on May 19, 2008, the claimant testified that neither Bernoi nor any other individual associated with Leno’s Lawn Service provided her with psychiatric care between July 2001 and July 2002. The claimant also testified that in the two conversations she had with Bernoi between July 2001 and July 2002, she did not inform him that she would be filing a workers’ compensation claim. In fact, the claimant indicated “that it was not until 2006 that she came to the realization that Mr. Bernoi had done something wrong which merited her ‘doing something about it.’” Findings, ¶ 19. See also May 19, 2008 Transcript, pp. 29-30. Similarly, the claimant’s mother, who was the claimant’s legal guardian during the period between July 2001 and 2002, also testified that despite the other steps she took on her daughter’s behalf,3 “it did not occur to her to file a workers’ compensation claim ….”4 Findings, ¶ 23. See also May 19, 2008 Transcript, p. 54. Bernoi, who was the owner of Leno’s Lawn Service between 2000 and April 2002, testified that he did not become aware that the claimant was pursuing a workers’ compensation claim until November 2006 and reiterated that for the period between July 3, 2001 and July 3, 2002, “neither he nor anyone authorized to act on behalf of Leno’s Lawn Service paid for or provided any of the medical treatment … obtained by the claimant.” Findings, ¶ 25. See also May 19, 2008 Transcript, p. 69. Bernoi indicated that the courtordered restitution payments to the claimant commenced in November 2006 and were made to a third party.

Based upon the foregoing, the trial commissioner determined although “the claimant’s mother had both the legal standing and the intellectual capacity to have filed a workers’ compensation claim on the claimant’s behalf,” she did not do so. Findings, ¶ C. The trier also concluded that no notice which “substantially complied” with the requirements of § 31-294c(a) C.G.S. was provided to the respondent-employer or the Workers’ Compensation Commission until August 2006.5 Findings, ¶ D. Noting that none of the tolling provisions enumerated in § 31-294c(c) were satisfied, the trial commissioner found the Workers’ Compensation Commission lacked jurisdiction and dismissed the claim.6

The claimant filed a Motion for Articulation and Motion to Correct, both of which were denied, and this appeal followed. The claimant asserts three claims of error: the trial commissioner erroneously (1) held that § 52-577d C.G.S. is inapplicable to workers’ compensation claims;7 (2) failed to find that the claimant had satisfied the so-called “medical care exception” as contemplated by § 31-294c(c) C.G.S; and (3) failed to find that the claimant satisfied the notice provisions of § 31-294c(a) by making a written notice of claim within one year of the date of injury.8 Having carefully reviewed the factual background and evidentiary submissions in this matter along with pertinent case law, we are not persuaded by the claimant’s arguments.9

The standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions is well-settled.

… the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).

We begin with the claimant’s assertions of error relative to § 52-577d C.G.S., which extended, from seventeen years after the date of the victim’s majority to thirty years, the statute of limitations for victims of a sexual assault or sexual exploitation to file a claim for damages for personal injury, including emotional distress. Although the trial commissioner found § 52-577d C.G.S. inapplicable to workers’ compensation claims, the claimant contends that “all the rules of statutory construction compel a different conclusion – that all claims for personal injury, necessarily including claims of personal injury sustained in the course of employment, are subject to § 52-577d.” Appellant’s Brief, p. 5. (Emphasis in the original.) The claimant asserts that under “[t]he plain meaning” analysis set forth in § 1-2z C.G.S., the “plain and unambiguous language of § 52-577d makes it clear that § 52-577d applies to workers’ compensation injuries. . . .”10 Id., at 6. The claimant also argues that other rules of statutory construction also compel the extension of § 52-577d C.G.S. to workers’ compensation claims; namely, § 52-577d is a more recent statute and would therefore control in the case of an older statute; and § 52-577d, as the “more specific” statute, would control over a more general statute.

The claimant primarily relies on Almonte v. New York Medical College, 851 F. Supp. 34 (Conn. 1994) for her contentions. However, we believe the claimant’s reliance on Almonte is misplaced. Almonte is, at its core, a common law negligence action in which the victim of sexual assault by a psychiatric resident at a medical college brought a suit for damages against both the college and a doctor who, in the course of training the resident, had learned the resident suffered from pedophilia. We have no quarrel with the claimant’s interpretation of Judge Nevas’ reasoned analysis of statutory construction in Almonte. We also concede that the judge did ultimately deny the defendant doctor’s motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,11 concluding that the extended statute of limitations was also applicable to the defendant doctor even though he was not the actual perpetrator of the sexual abuse.12 Nonetheless, the critical distinction to be drawn between Almonte and the matter at bar is this: the former is a tort action, and the latter is a workers’ compensation claim, the administration of which is strictly controlled by the statutory provisions of the Workers’ Compensation Act.13

Under the act, “the employee surrenders his right to bring a common law action against the employer, thereby limiting the employer’s liability to the statutory amount. . . . In return, the employee is compensated for his or her losses without having to prove liability. . . . In a word, these statutes compromise an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation.”

Stickney v. Sunlight Construction, Inc., 48 Conn. App. 609, 617 (1998). (Citations omitted; internal quotation marks omitted.) See also Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 381 (1997).

When confronted with a claim by an injured worker, employer liability is sharply circumscribed by the language of § 31-284(a) C.G.S., the so-called “exclusivity provision,” which states, in pertinent part, that “[a]n employer who complies with the requirements of subsection (b) [provision of proof of solvency and procurement of workers’ compensation insurance] of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment . . . .” (Emphasis added.) In light of the clear prohibition against tort actions contained in the language of the Workers’ Compensation Act, we are reluctant to extend the purview of § 52-577d C.G.S. to the workers’ compensation arena absent a clear indication that such an extension was contemplated by the legislature.14 “To conclude otherwise would create too great a risk of upsetting the careful balance set by the legislature between providing an efficient, affordable system for prompt resolution of claims, providing compensation for unduly delayed claims and punishing wrongful conduct.” DeOliveira v. Liberty Mutual, 213 Conn. 487, 499-500 (2005). We are also mindful that “[b]ecause of the statutory nature of our workers’ compensation system, policy determinations as to what injuries are compensable and what jurisdictional limitations apply thereto are for the legislature, not the judiciary or the board, to make.” Discuillo v. Stone & Webster, 242 Conn. 570, 577 (1997).

As such, we affirm the trial commissioner’s decision not to extend the scope of § 52-577d C.G.S. to workers’ compensation claims in light of the axiom that “[a] commissioner may exercise jurisdiction to hear a claim only ‘under the precise circumstances and in the manner particularly prescribed by the enabling legislation.’” Id., at 576, quoting Heiser v. Morgan Guaranty Trust, 150 Conn. 563, 565 (1963).

The claimant also asserts on appeal that the commissioner erroneously failed to find the claimant had satisfied the conditions of the so-called “medical care exception” as articulated in § 31-294c(c) C.G.S. Pursuant to the statute, the medical care exception is triggered when “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.”15 The claimant asserts that compliance with this provision occurred at Gregory Bernoi’s sentencing hearing on April 19, 2002 when the court ordered Bernoi to pay restitution in the form of reimbursement for the claimant’s counseling and psychiatric treatment expenses and Bernoi agreed to do so. We are not so persuaded.

This board recently had opportunity to examine the medical care exception in Spencer v. Manhattan Bagel Company, 5419 CRB-8-09-1 (January 22, 2010) wherein the trial commissioner dismissed a claim for untimely notice on the basis that the claimant failed to satisfy the conditions necessary to invoke the medical care exception. The trial commissioner’s decision appeared to rest on a finding that the defendant employer did not pay the bill associated with the claimant’s chiropractic treatment. Our decision to reverse the trial commissioner was based in part on our interpretation of Gesmundo v. Bush, 133 Conn. 607 (1947), in which our Supreme Court observed that the medical “exception is, no doubt, based upon the fact that if the employer furnishes medical treatment he must know that an injury has been suffered which at least may be the basis of such a claim.” Id., at 612. The court then went on to remark “[t]hat the [claimant] saw fit to pay the doctor does not alter the situation; it is the fact that the defendant, through its superintendent, made provision for medical treatment that makes unnecessary the formal notice.” Id.

The Supreme Court subsequently revisited the medical care exception in Kulis v. Moll, 172 Conn. 104 (1976), wherein, unlike Gesmundo, the court determined the requirements for invoking the medical care exception had not been met. In Kulis, the respondent employer discovered the claimant lying on the ground near a ladder and, although “there was no evidence to indicate whether the plaintiff, when found on the ground, had suffered a sudden illness, an accidental fall or even an external assault,” id., at 111-112, transported the claimant to the hospital, whereupon the employer received notice of a workers’ compensation claim some fifteen months later, having heard nothing from the claimant in the interim. Noting that by that time, the employer had been deprived of any meaningful opportunity to investigate the claim, “the court concluded that the defendant simply was never given legally sufficient constructive notice and affirmed the trier’s decision to dismiss the claim.” Spencer, supra.

Thus, in Spencer, primarily on the basis of our review of Gesmundo and Kulis in addition to several decisions by this board, we determined that:

the relevant line of inquiry in ascertaining whether the requirements of the medical care exception have been satisfied does not hinge upon whether an employer paid a certain medical invoice. Rather, the inquiry is global in nature, and should ideally lead to a determination as to whether the employer could reasonably expect that a workplace injury for which a claimant has received medical attention might conceivably lead to a workers’ compensation claim against the employer.

Spencer, supra.

Applying the foregoing analysis to the matter at bar, we note at the outset that the record indicates the Office of Victim Services initially reimbursed the claimant for her medical expenses, and the employer did not commence restitution payments until after his release from prison. May 19, 2008 Transcript, p. 69. See also Claimant’s Exhibit D. However, as the foregoing discussion indicates, the issue of actual payment is not dispositive. More germane to our inquiry is the fact that the claimant herself testified that neither Bernoi nor any other employee of Leno’s Lawn Service ever brought her to see a psychiatrist between July 2001 and July 2002. May 19, 2008 Transcript, pp. 31-32. In fact, it was the claimant’s mother who made the arrangements for her daughter’s treatment with the assistance of her employer’s EAP program, and the treatment was initially paid for by the claimant’s mother’s health insurance offered through her employer. Id., at 5354. In addition, Bernoi not only testified that neither he nor any other employee of Leno’s Lawn Service paid for the claimant’s psychiatric care between July 3, 2001 and July 3, 2002, id., at 69, 70-72, but also indicated that he could not remember all of the stipulations contained in his plea negotiations and he could not recall much about his sentencing hearing given that his “main focus was incarceration for two years.” Id., at 66. Bernoi stated, “[w]hatever [the defense lawyer] presented to me, is what he and I had agreed upon, and he thought it was the best way to go and I signed many papers that he put in front of me that day.” Id.

We therefore believe the evidentiary record fails to support the claimant’s contention that Bernoi’s acquiescence in agreeing to reimburse the claimant for the expenses associated with her psychiatric treatment as part of his plea negotiations met the threshold requirement for satisfying the medical care exception as contemplated by § 31-294c(c) C.G.S. Taken in its entirety, the record simply does not substantiate a finding that either Bernoi or Leno’s Lawn Service ever furnished the claimant with medical or surgical care. Similarly, the record does not support the inference that the circumstances surrounding the claimant’s medical treatment could have reasonably led to the expectation on the part of Bernoi or Leno’s Lawn Service that the claimant was filing a workers’ compensation claim. The claimant herself testified that during the period between July 2001 and July 2002, she spoke with Bernoi twice and in neither conversation did she inform him that she intended to file a workers’ compensation claim. May 19, 2008 Transcript, p. 32. Finally, one might also infer that when confronted with the prospect of prolonged incarceration, Bernoi may have failed to appreciate that his agreement to reimburse the claimant for her medical expenses at some future point could arguably have served as constructive notice of the claimant’s workers’ compensation claim. To hold otherwise would simply not comport with either the original intent of the statute or the general tenor of the case law interpreting same. We therefore find no error in the trial commissioner’s determination that the conditions required to invoke the medical care exception were not satisfied.

The claimant also asserts that she substantially complied with the written notice requirement contemplated by § 31-294c(a) C.G.S. in that both she and her mother wrote statements that were read aloud to the court at Bernoi’s sentencing hearing on April 19, 2002 which, pursuant to the statute, contained “in simple language, the date and place of the accident and the nature of the injury resulting from the accident….”16 We have reviewed these statements and do not quarrel with their purported intent; i.e., to instill in Bernoi and the court a greater comprehension of the consequences of Bernoi’s actions on both the claimant’s life and the lives of her family members and friends. Nevertheless, the connection between these statements (which were read aloud in court by a representative from the Office of Victim’s Services) and the legal sufficiency of notice contemplated by § 31-294c(a) C.G.S. is simply too attenuated. This is particularly so in light of Bernoi’s testimony recited previously herein relative to his understandable preoccupation at the sentencing hearing with the potential term of his incarceration. As such, we find the trial commissioner’s determination that the claimant failed to substantially comply with the written notice requirement contemplated by § 31-294c(a) C.G.S. did not constitute error.

Having found no error, the March 2, 2009 Finding and Dismissal of the Commissioner acting for the Fifth District is accordingly affirmed.

Commissioners Ernie R. Walker and Christine L. Engel concur in this opinion.

1 We note that a request for an extension of time was granted during the pendency of this appeal. BACK TO TEXT

2 The employer’s decision to hire the claimant appears to have violated the provisions of § 22-13 C.G.S. (Rev. to 2001) which states, in part, that “[n]o minor under fourteen years of age shall be employed or be permitted to work in agriculture.” However, consistent with the court’s reasoning in Kenez v. Novelty Compact Leather Co., 111 Conn. 229 (1930), this violation in and of itself would not preclude such a claimant from receiving workers’ compensation benefits should the circumstances warrant. In Kenez, the court observed, “… we believe that the extension to the child of the benefits of the Act better accords with the broad humanitarian purpose of the law, to give certain and speedy relief to those suffering injury in industry and to those dependent upon them.” Id., at 235-236. BACK TO TEXT

3 In addition to contacting the police upon discovering the nature of the relationship between her daughter and Bernoi, the claimant’s mother also filed an application for out-of-pocket medical expenses with the Office of Victim’s Services and subsequently participated in the negotiations relative to Bernoi’s sentencing. BACK TO TEXT

4 The trier took administrative notice of § 31-318 C.G.S. (Rev. to 2001) which states, in pertinent part: When any employee affected by the provisions of this chapter or any person entitled to compensation thereunder is a minor or mentally incompetent, his parent or duly appointed guardian may, on his behalf, perform any act or duty required or exercise any right conferred by the provisions of this chapter with the same effect as if such person were legally capable to act in his own behalf and had so acted. BACK TO TEXT

5 Sec. 31-294c(a) C.G.S. (Rev. to 2001) states, in pertinent part, that “[n]o 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 manifestation 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 …, and the name and address of the employee and of the person in whose interest compensation is claimed.” BACK TO TEXT

6 Sec. 31-294c(c) C.G.S. (Rev. to 2001) states: “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 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. BACK TO TEXT

7 Sec. 52-577d C.G.S. (P.A. 02-138, S.2., effective May 23, 2002) states, “[n]otwithstanding the provisions of section 52-577, no action to recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault may be brought by such person later than thirty years from the date such person attains the age of majority. BACK TO TEXT

8 At trial, claimant’s counsel also advanced an equitable estoppel argument premised on the alleged impossibility of the claimant filing a timely workers’ compensation claim. As claimant’s counsel did not brief the merits of this argument and only briefly alluded to it at oral argument, we deem it abandoned on appeal. “Analysis, rather than mere ‘abstract assertion,’ is required in order to avoid abandoning an issue by failure to brief the issue properly.” Cummings v. Twin Tool Mfg., Co., 40 Conn. App. 36, 45 (1996). BACK TO TEXT

9 On October 22, 2009, following oral argument held in this matter on September 25, 2009, claimant’s counsel provided this board with a copy of Judge John W. Pickard’s Memorandum of Decision re: Motion for Summary Judgment relative to the civil case filed by the instant claimant against Leno’s Lawn Service, LLC and Gregory Bernoi. No specific request for action accompanied the submission although in his cover letter claimant’s counsel indicated he believed the judge’s decision regarding the impact of § 52-577d C.G.S. on a personal injury civil action was relevant to the instant workers’ compensation claim. We conclude that the decision of Judge Pickard does not have bearing on our analysis of the application of § 52-577d C.G.S. to a workers’ compensation claim and therefore decline to consider the submission. BACK TO TEXT

10 Sec. 1-2z C.G.S. (P.A. 03-154, S.1.) states: “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” BACK TO TEXT

11 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of an action on the basis that the moving party has failed to state a claim upon which relief can be granted. BACK TO TEXT

12 In Almonte v. New York Medical College, 851 F. Supp. 34 (Conn. 1994), Judge Nevas observed that if § 52-577d was “limited to actions against perpetrators only, many if not most non-offender prospective defendants would, for all practical purposes, be rendered immune to suit. Such a result is both contrary to public policy and inconsistent with the Legislature’s intent to broaden the remedies available to victims of sexual abuse through the extended limitations period.” Id., at 38. BACK TO TEXT

13 The Workers’ Compensation Act, or “Chapter 568” of the Connecticut General Statutes, is comprised of §§ 31-275 — 31-355b C.G.S. BACK TO TEXT

14 We are of course aware that an exception to this exclusivity provision is triggered when an employer’s intentional tort injures an employee or when an employer engages in wilful or serious misconduct. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 106 (1994). However, because the issue of whether the claimant may have a meritorious civil action is not before us, we decline to address it herein. BACK TO TEXT

15 The pertinent provision of § 31-294d C.G.S. for our purposes is § 31-294d(a)(1) (Rev. to 2001), which states, in pertinent part: “The employer, as soon as he has knowledge of an injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish any medical and surgical aid or hospital and nursing service, including medical rehabilitation services, as the physician or surgeon deems reasonable or necessary.” BACK TO TEXT

16 The record indicates that the claimant’s father also wrote a statement which was read aloud to the court. Claimant’s Exhibit E, p. 23. BACK TO TEXT

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