CASE NO. 5588 CRB-7-10-9
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 25, 2011
BOEHRINGER INGELHEIM CORPORATION
LIBERTY MUTUAL INSURANCE GROUP
The claimant was represented by Matthew P. Lascelle, Esq., The Dodd Law Firm, LLC, 1781 Highland Avenue, Suite 105, Cheshire, CT 06410.
The respondents were represented by James D. Moran, Jr., Esq., Maher Williams, 268 Post Road, P.O. Box 555, Fairfield, CT 06824.
This Petition for Review from the August 31, 2010 Finding and Dismissal of the Commissioner acting for the Fifth District was heard February 25, 2011 before a Compensation Review Board panel consisting of Commissioners Scott A. Barton, Christine L. Engel and Stephen B. Delaney.
SCOTT A. BARTON, COMMISSIONER. The claimant has appealed from the denial of his Motion to Preclude. He argues that as the respondent’s disclaimer was allegedly deficient that preclusion should have been granted. He also argues that the disclaimer was deficient due to improper service. We are not persuaded by these arguments and dismiss this appeal.
The trial commissioner found the following facts. As there was no Motion to Correct we may give them conclusive effect on appeal Stevens v. Raymark Industries, Inc., et al., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008). The respondent filed a Form 43 on December 4, 2007 contesting the claimant’s bid for benefits. It was received by the commission via certified mail on December 6, 2007. The Form 43 listed Thomas Lamar as the claimant, identified the date of injury as September 6, 20071 and listed the injured body part as “lymph nodes.” The employer was listed as “Boehringer Ingelheim Corp.” The nature of the injury was listed as “sarcoidosis.” The reason for contesting the claim was listed as, “Claimant did not suffer an injury which arose out of or in the course of his employment.” The parties stipulated the Form 43 was sent via certified mail to the claimant’s home address at 6 Farmington Avenue, Waterbury. It was further stipulated the claimant did not claim the Form 43.
On December 10, 2007 a Form 30C Notice of Claim was filed by the claimant that was received by the commission on December 12, 2007. The notice listed Thomas Lamar as the claimant and the employer was listed as “Boehringer Ingelheim Pharmaceuticals, Inc.” The date of injury was listed as “01/01/05 through present.” The body parts injured were listed as “lungs, respiratory complaints.”
The respondent filed a second Form 43 on February 6, 2008 which was received by the commission on February 8, 2008.2 This Form 43 again listed Thomas Lamar as the claimant and stated the employer was “Boehringer Ingelheim Corp.” The form stated a September 6, 2007 date of injury and described the nature of the injury as “repetitive trauma/sarcoidosis.” The form listed the injured body part as “lungs, respiratory complaints.” The reason for contesting the claim was listed as “Claimant did not suffer an injury which arose out of the course and scope of his employment.”
The trial commissioner further determined that two statutes governed this dispute. § 31-294c(b) C.G.S. required the respondent to issue a disclaimer within 28 days of receiving the Notice of Claim identifying the grounds in which the right to compensation was contested. This statute required the disclaimer to be served on the claimant in accordance with § 31-321 C.G.S. This statute says notice shall be served “personally, or by registered or certified mail addressed to the person upon whom it is to be served at his last-known address or place of business.”
Based on this record the trial commissioner found that the respondent had fulfilled their legal obligation under § 31-321 C.G.S. to serve the disclaimer on the claimant by virtue of sending it to his address via certified mail. The commissioner further determined that “for reasons unknown, the Claimant did not claim it.” The trial commissioner further reviewed the two Form 43’s filed by the respondent. The trial commissioner noted that while the original Form 43 listed a single date of injury, the dates of injury alleged in the claimant’s Form 30C “includes the date in the Form 43 of September 6, 2007.” Conclusion, ¶ E. Considering “the document as a whole” the trial commissioner concluded the claimant “was provided sufficient information and was placed on notice that the Respondents were denying his claim due to the condition of sarcoidosis which developed during the time period alleged in the Form 30C.” Id. As a result, she denied the claimant’s Motion to Preclude.
As previously noted, the claimant did not file a Motion to Correct. Instead he filed Reasons of Appeal from the trial commissioner’s decision. He asserted the trial commissioner erred by denying the Motion to Preclude. His primary argument is that the text of the disclaimer was inadequate based on the precedent in Menzies v. Fisher, 165 Conn. 338 (1973) and Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596 (2000). He also argues the respondents had an obligation to utilize personal service of the disclaimer when it was apparent the certified mail had not been received by the claimant.
We can address the argument as to whether the disclaimer was properly served in a concise manner. Service of notices required under Chapter 568 is governed by § 31-321 C.G.S. Pursuant to § 1-2z C.G.S. we are bound to apply the “plain meaning” of this statute. The service statute reads as follows:
Unless otherwise specifically provided, or unless the circumstances of the case or the rules of the commission 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 certified mail addressed to the person upon whom it is to be served at his last-known residence or place of business. Notices on behalf of a minor shall be given by or to his parent or guardian or, if there is no parent or guardian, then by or to such minor. (Emphasis added.)
The “plain meaning” of the service statute is clearly written in the disjunctive, thus making either personal service or certified or registered mail equally effective means of perfecting service. There is no dispute in this manner that the respondent’s disclaimer was sent via certified mail to the claimant’s last known place of residence. We agree with the respondent that the precedent in Morgan v. Hot Tomato’s, Inc., DIP, 4377 CRB-3-01-3 (January 30, 2002) is indistinguishable from the facts in this case. In Morgan a Form 30C was sent via certified mail to the respondent, but the Postal Service returned the notice as unclaimed mail. We upheld a Motion to Preclude in that matter as “we have stated that a claimant need only demonstrate that an adequate Form 30C has been sent by certified mail to his employer’s place of business in order to satisfy the general notice requirements of § 31-321 C.G.S.” Id. We find no statutory authority to treat the service of a disclaimer in a different manner.3
We now turn to the adequacy of the disclaimer. The disclaimer herein was filed before the claimant actually had filed his Form 30C with the commission to formally commence a claim for benefits. Nonetheless, there is no statutory or precedental impediment to a respondent filing such a pre-emptive disclaimer of liability when they become aware a Chapter 568 claim may be imminent. In fact, for over two decades the practice of a respondent filing a Form 43 disclaiming liability for an injury prior to the claimant filing a Form 30C has been acceptable. In Elmassri v. Vinco, Inc., 584 CRD-7-87, 5 Conn. Workers Comp. Rev. Op. 96 (June 2, 1988) the respondent filed his Form 43 prior to the claimant filing a Form 30C, and the claimant subsequently moved for preclusion, which was granted. The Compensation Review Division reversed on that issue finding “[t]he situation thus created satisfied the objective of the 1967 legislation as defined in Menzies v. Fisher, 165 Conn. 338, 343 (1973).” The CRD reasoned that the purpose of the disclaimer was to cause a prompt investigation of claims by respondents and to cause them to explain why a claim was contested. The employer’s notice in Elmassri “accomplished these two objectives” and to credit only disclaimers filed subsequent to a claimant filing notice under § 31-294 C.G.S. as valid “would be a tortured reading of the statute and truly elevate form over substance.” Id.
Since we conclude the timeliness of the original disclaimer was not an issue we must ascertain if the substance of the disclaimer was adequate. The trial commissioner determined it was sufficient as previously noted in Conclusion, ¶ E. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Daniels v. Alander, 268 Conn. 320, 330 (2004). We must ascertain if the commissioner’s conclusion herein was reasonable. We look to the Appellate Court’s decision in Tovish v. Gerber Electronics, 19 Conn. App. 273 (1989) where the opinion defined the necessary prerequisites of an effective disclaimer.
In Tovish, supra, the five elements of a viable workers’ compensation claim are outlined. (1) jurisdiction; (2) timely notice or the presence of an exception to notice; (3) the legal qualification of the claimant as employee; (4) the legal qualification of the respondent as employer; and (5) the occurrence of a “personal injury” as per the statute. An effective disclaimer must contest one of the five elements of the claim.
The disclaimer upheld in Tovish stated, “Injury [heart attack] did not arise out of or in the course and scope of employment.” Id., 274. The Appellate Court concluded, “the defendants’ disclaimer clearly contests the fifth element. We are persuaded the disclaimer was sufficient to apprise the plaintiffs that the defendants were challenging an element the plaintiffs were obliged to prove in order to meet the prima facie threshold for their claim.” Id., 276.
In the present case the initial disclaimer, dated December 4, 2007 identified the claimant’s injury as “sarcoidosis” and the impacted body parts as “lymph nodes.” The disclaimer stated the grounds for contesting the claim were “CLAIMANT DID NOT SUFFER AN INJURY WHICH AROSE OUT OF OR IN THE COURSE OF HIS EMPLOYMENT.” (capitalization in original.. The claimant did not argue in his brief or at oral argument that the disclaimer in question did not provide sufficient notice as to what injury the claimant had suffered was being contested.4 The claimant argues that the denial was too vague, however. We are not persuaded by this argument as the text of the December 4, 2007 disclaimer is a virtual paraphrase of the title of § 31-275(1) “Arising out of and in the course of his employment.” We believe a fair reading of this disclaimer is that it placed the claimant on notice the respondent was challenging the etiology of the claimant’s condition as being caused by his employment, pursuant to § 31-275 (1)(B) C.G.S. As the disclaimer challenged the existence of a “personal injury” as defined by § 31-275 (16)(A) C.G.S., it met one of the five recognized defenses in Tovish, supra, and on the facts we find the disclaimer in this case indistinguishable from the disclaimer upheld in Tovish.
We followed similar reasoning in West v. Heitkamp, Inc., 4587 CRB-5-02-11 (October 27, 2003), appeal dismissed for lack of final judgment, A.C. 24805 (February 11, 2004). In West we held “[w]here the common-sense interpretation of a disclaimer reveals concrete reasons for contesting a claim, it would be inappropriate to preclude an employer or insurer from maintaining its defense based on the absence of two or three ‘magic words’ in the Form 43.” We will discuss this theme in greater detail in reviewing whether the absence of a specific reference to repetitive trauma invalidates the Form 43.5 6
In Sweet v. Coca Cola Bottling Company, 5262 CRB-1-07-8 (August 27, 2008) we examined the interplay between the concept of “accidental injury” and “repetitive trauma” as different forms of personal injury which are compensable under Chapter 568. We determined that particularly as related to issues related to jurisdiction, the differences were often not material in nature.
In Hummel v. Marten Transport, 4667 CRB 5-03-5 (May 3, 2004) appeal dismissed for lack of final judgment, 90 Conn. App. 9 (2005), aff’d, 282 Conn. 477 (2007) we considered the issue of causation of a truck driver’s fatal heart attack. The respondents in Hummel argued the evidence did not support a finding of occupational disease. This board held the difference in definition was jurisdictional in nature and under the facts in that case it was immaterial.
The purpose of distinguishing whether a claim fits into one of the aforementioned categories is to determine the applicable time limitation period by which a claim for compensation must be filed pursuant to § 31-294c C.G.S. If a claimant can prove an injury results from an occupational disease, then the three-year statute of limitations applies, as opposed to a one-year statute of limitations claims due to accidental injury or repetitive trauma. In this matter, the claimant filed the notice of claim within one year of the accident which resulted in his death. Therefore, it does not matter which category of injury occurred, as long as the claim was brought within one year of the date of injury. Id.
We also look to the holding in the touchstone case on repetitive trauma claims, Discuillo v. Stone & Webster, 242 Conn. 570 (1997), wherein the Supreme Court noted the interplay present between the two statutory forms of recovery and noted “a series of repetitive workplace traumas can have the unintended result of causing an ‘accidental’ injury to an employee.” Id., 580. Sweet, supra.
In the present case the respondent’s initial disclaimer stated the claimant’s date of injury was September 6, 2007. Whether the claimant’s injury was described as an accidental injury or a repetitive trauma the claimant’s subsequent Form 30C was filed within one year of the injury and therefore the commission was not time barred from considering the claim pursuant to § 31-294c C.G.S. As “generally the purpose of determining whether the claimant suffered a single accidental injury or not was to determine whether the claim was untimely under § 31-294c C.G.S.” Sweet, supra, we find no prejudice to the claimant from the respondent’s confusion in their initial disclaimer. Indeed, as the claimant had yet to perfect his claim by filing a Form 30C, the respondent could not have been certain at that time what theory of recovery the claimant would pursue.
We followed similar reasoning in cases which are on point. We first considered this issue in Passarelli v. Norwalk, 3984 CRB-7-99-2 (March 22, 2000). In Passarelli, the trial commissioner ordered preclusion when the respondents failed to file a timely Form 43 responsive to a Form 30C alleging the claimant suffered from Fibromyalgia/Myofacial pain with a specific date of injury. The respondents argued that as the claimant cited a specific date of injury for a repetitive trauma claim the claim form was too vague to trigger the need to respond. The CRB rejected this reasoning.
The respondent accordingly cannot prevail on its argument that the claimant’s notice was defective because it listed a specific date of injury for her repetitive trauma claim. See also, Bonin v. Thames Valley Steel, 1492 CRB-2-92-8 (Feb. 14, 1997) (accuracy of injury date generally more crucial in accidental injury cases than in repetitive stress cases, due to the broader temporal focus of the investigation); Quinn v. Knapp, 12 Conn. Workers’ Comp. Rev. Op. 334, 1470 CRB-8-92-7 (July 8, 1994). Id.
We see no rationale for penalizing a respondent for listing a specific injury date in a disclaimer for a repetitive trauma injury when such an occurrence does not invalidate a claimant’s claim for benefits.7 We followed similar reasoning in two more recent cases. Duglenski v. Waterbury, 4913 CRB-5-05-2 (January 18, 2006), appeal dismissed for lack of final judgment/lack of jurisdiction, A.C. 27333 (June 8, 2006) and DiStasi v. Watertown Board of Education, 5010 CRB-5-05-10 (September 25, 2006).
In Duglenski the trial commissioner granted a Motion to Preclude claiming the respondent’s disclaimer, which listed a single date of injury, “did not adequately identify the date of injury for the claimant’s claim of injury resulting from repetitive trauma.” This decision was reversed on appeal. While the respondents in Duglenski failed to check off the box on the Form 43, the tribunal looked at the verbiage in the disclaimer and concluded “[a] reasonable person reading this would assume that the respondent was challenging the notion that the claimant had suffered a cardiovascular condition compensable under either § 7-433c C.G.S. or the Workers’ Compensation Act itself. The language typed into the “Reasons for Contest” space on the disclaimer is not ambiguous, and it would be hard to imagine any claimant reading such language and assuming that his repetitive trauma claim for cardiovascular disease was not being challenged.” Id. The tribunal further found the absence of a specific notation for repetitive trauma was not a material issue, citing West, supra, where the notation of “N. A.” on the Form 43 did not bar a subsequent defense against a repetitive trauma claim.
In DiStasi the claimant also argued the respondent’s disclaimer was vague and conclusory and also argued the respondents failed to check the appropriate box on the Form 43 to contest a repetitive trauma injury. We concluded to the contrary “as the respondents provided enough information here to notify the claimant of the substantive ground for their contest to deem the Form 43 legally sufficient notwithstanding the unchecked box”, citing West, supra. We compared the claimant’s position on the disclaimer to the “magic words” standard rejected in Struckman v. Burns, 205 Conn. 542, 554-556 (1987). DiStasi, supra.
Notwithstanding the numerous cases where we have declined to impose the harsh remedy of preclusion in matters where the sufficiency of a disclaimer has been challenged, the claimant argues that the Russell case requires such a sanction be imposed. In reviewing Russell we find the case sufficiently distinguishable on the facts so as not to apply to the instant case. In Russell the respondent filed three separate disclaimers to the claimant’s notice of claim. All three disclaimers cited an injury date of May 2, 1991, which was not the date of last exposure of the claimant’s repetitive trauma claim, but rather, the date of a prior injury suffered by the claimant. The second disclaimer specifically cited the statute of non-claim defeated the claimant’s claim as it was untimely under an accidental injury theory of recovery. The final disclaimer indicated it was disclaiming responsibility for ailments such as ulcers which the claimant had not sought compensation for. Russell, supra, 618-620. The Supreme Court agreed with the claimant “none of the disclaimers filed by the defendant. informed the plaintiff that his repetitive trauma claim was being denied or the reasons therefore.” Id. The reason for this conclusion was that none of the disclaimers properly listed the date of the alleged injury. Moreover, the Supreme Court concluded that the defendant consistently treated the claim as an accidental injury claim. Id., 621. In Russell, the erroneous date of injury in the respondent’s disclaimer was a material issue. The claimant asserted he had continued to suffer injurious exposure until 1994 and that his claim for repetitive trauma injuries was therefore jurisdictionally valid. The respondent’s defective disclaimers never acknowledged this fact and consequently advanced an ineffectual non-claim defense.8
Therefore, we find the circumstances herein much more akin to Sweet, supra, than to Russell, supra. When a respondent files a Form 43 contesting liability and acknowledges a date of injury under which this commission retains jurisdiction, the initial inaccuracy as to the precise theory of recovery does not materially prejudice the claimant. See DiStasi, supra, and Duglenski, supra. In addition, unlike Russell, the claimant was properly apprised as to the nature of the injury for which the respondent disclaimed responsibility. In the present case the disclaimer acknowledges an alleged injury occurred within the dates in which the claimant asserts he has exposure to a repetitive trauma. We simply do not find the Form 43 in this case violates the terms of the statute governing disclaimers. As noted, it appears to clearly enunciate the respondent is challenging the etiology of the claimant’s injury; and does not advance another theory of defense.
As preclusion is a “harsh remedy”, West, supra, this commission is loathe to order it under circumstances where the underlying basis for preclusion appears to be allegations of technical deficiencies and not substantive deficiencies. In Christy v. Ken’s Beverage Incorporated, 5157 CRB-8-06-11 (December 7, 2007) we declined to penalize an employer for filing a pre-emptive Form 43 when the claimant argued it was somehow inconsistent with a Form 30C she later filed with the commission.9 We followed similar reasoning in Callender a/k/a Woodbury v. Reflexite Corporation, 5504 CRB 6-09-10 (October 8, 2010) where we refused to penalize a respondent who did not file a new disclaimer responsive to a new Form 30C relating to an injury already under the commission’s jurisdiction. We cited Adzima v. UAC/Norden Division, 177 Conn. 107 (1979) that only the initial claim triggered the need to file a disclaimer and the claimant’s approach would “encourage a race to the courthouse.” Callendar, supra. We held Adzima, supra, stood for the proposition “that the purpose of a Motion to Preclude is to address the “threshold failure on the employer’s part to contest ‘liability.” Id., 113.
When a preemptive Form 43 is filed by an employer, clearly the respondent has not met the threshold of failing to contest liability to the claimant’s injury. While a claimant may succeed in proving to the trial commissioner a disclaimer so poorly identifies the date of injury, the nature of the injury or the grounds of defense as to negate its filing, see Russell, supra, the trial commissioner concluded the respondent’s Form 43 in this matter was legally adequate.10 We do not find this conclusion erroneous as a matter of law. Therefore, we affirm the Finding and Dismissal and dismiss this appeal.
Commissioners Christine L. Engel and Stephen B. Delaney concur in this opinion.
1 The respondents have identified this date as being the date a First Report of Injury was received by the claimant’s employer. BACK TO TEXT
2 The Finding and Dismissal states this form was filed in 2007. We will consider this a harmless scrivener’s error and afford it no weight. BACK TO TEXT
3 We note that in Verrinder v. Matthew’s Tru Colors Painting & Restoration, 4936 CRB-4-05-4 (December 6, 2006), appeal dismissed, A.C. 28367 (July 25, 2007), this tribunal pointed out that § 31-321 C.G.S. provides for “alternate forms of service” and the adequacy of service was a factual determination for the trial commissioner. Id., Footnote, ¶ 2. See also Mehan v. Stamford, 5389 CRB-7-08-10 (October 14, 2009), aff’d 127 Conn. App. 619 (2011), cert. denied, 301 Conn. 911 (2011). We also note that the Appellate Court rejected a somewhat similar argument in regards to whether proof of receipt was necessary to effectuate cancellation of a workers’ compensation insurance policy. In Yelunin v. Royal Ride Transportation, 121 Conn. App. 144 (2010) it was held that § 31-348 C.G.S. required a carrier only to prove it notified the commission when it was canceling insurance coverage, and any arguments as to adequacy of notice to the insured party were immaterial. BACK TO TEXT
4 We find that the reference to “sarcoidosis” in the respondent’s Form 43 was a result of the claimant’s treating physician identifying the claimant’s ailment as such. See January 8, 2008 report from Dr. John Santilli, affixed to the December 23, 2008 hearing request. BACK TO TEXT
5 The trial commissioner indicated that in Conclusion, ¶ E she considered the December 4, 2007 Form 43 as well as the February 6, 2008 Form 43 and the claimant “reading this document as a whole” would have received sufficient basis to ascertain the nature of the contest. The claimant has argued that the February 6, 2008 disclaimer was inherently invalid as it was not served within 28 days of the filing of the Form 30C as required under § 31-294c(b) C.G.S. In light of Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102 (2008) and Donahue v. Veridiem, Inc., 291 Conn. 537 (2009) we conclude that if the initial Form 43 was fatally flawed, it could not be remedied by filing a subsequent revised Form 43 beyond the statutory time limits. In the present matter, however, we find the initial Form 43 was legally sufficient to contest liability. Were the initial Form 43 invalid on its face, a subsequent untimely Form 43 could not cure the deficiency. See Duglenski v. Waterbury, 4913 CRB-5-05-2 (January 18, 2006), appeal dismissed for lack of final judgment/lack of jurisdiction, A.C. 27333 (June 8, 2006), “[w]e note that this supplemental form cannot stand on its own as a timely disclaimer under § 31-294c.” BACK TO TEXT
6 In West v. Heitkamp, Inc., 4587 CRB-5-02-11 (October 27, 2003), appeal dismissed for lack of final judgment, A. C. 24805 (February 11, 2004) we reviewed language similar to the disclaimer in this case and held “[t]his language was sufficient to put the employee on notice that the respondents were contesting the relationship between the claimant’s alleged January 6, 1998 heart injury and his employment duties and activities.” BACK TO TEXT
7 See also Austin v.State/Dept. of Correction, 5014 CRB-8-05-11 (November 8, 2006) where the claimant asserted he suffered an accidental injury at some unspecific date during a one year period. We held, “ . . . the inaccuracy in a defective notice does not bar recovery, even where the employer shows that it was unaware of the injury and was prejudiced by the defect. A commissioner is not required to dismiss a claim just because the precise date of injury cannot be determined.” Id. BACK TO TEXT
8 While the initial disclaimer in the present case did not address repetitive trauma, the second disclaimer dated February 8, 2009 did list “repetitive trauma” as the nature of the claimant’s injury. Therefore, unlike Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596 (2000) the respondent clearly clarified the nature of their defense in the second disclaimer. BACK TO TEXT
9 While there is no evidence of any artifice or mischief by the parties in the present manner, we expressed serious concerns in our opinion in Christy v. Ken’s Beverage, Incorporated, 5157 CRB-8-06-11 (December 7, 2007) that encouraging the filing of multiple Form 30C’s when a pre-emptive Form 43 is filed could prove untenable on public policy grounds. BACK TO TEXT
10 Claimant argues in his brief that were this panel to affirm the trial commissioner it “would emasculate the clear provisions of Sec. 31-294c (b).” Claimant’s Brief, p. 11. As the public policy behind this statute is to encourage respondents to promptly investigate claims and to respond as to whether they are accepted injuries Adzima v. UAC/Norden Division, 177 Conn. 107 (1979), and the respondents filed a disclaimer in this matter before the claimant filed his Form 30C; we respectfully reach a differing conclusion. BACK TO TEXT