State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Volta v. United Parcel Service

CASE NO. 5612 CRB-7-10-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 31, 2012

ANTHONY VOLTA

CLAIMANT-APPELLANT

v.

UNITED PARCEL SERVICE

EMPLOYER

and

LIBERTY MUTUAL GROUP

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Steven G. Howe, Esq., D’Agosto & Howe, LLC, One Cots Street, Shelton, CT 06484.

The respondents were represented by Michael M. Buonopane, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review from the November 22, 2010 Finding and Denial/Dismissal of the Commissioner acting for the Sevent. District was heard on June 24, 2011 before a Compensation Review Board panel consisting of Chairman John A. Mastropietro and Commissioners Scott A. Barton and Christine L. Engel.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the November 22, 2010 Finding and Denial/Dismissal of the Commissioner acting for the Seventh District. We find error and accordingly reverse the decision of the trial commissioner.

The trial commissioner made the following factual findings which are pertinent to our review. From 1993 to 2005, the claimant worked for the respondent employer United Parcel Service as an “on the road” supervisor. From 2005 until 2007, the claimant worked for United Parcel Service as a senior operating manager, business manager and hub supervisor. Both positions required the claimant to remain on his feet all day. In December 2007, the claimant retired from United Parcel Service and began working for FedEx. On April 18, 2008, the claimant filed a notice of claim (“Form 30C” against United Parcel Service alleging a repetitive trauma injury to both feet with a date of injury of December 22, 2007. The respondents did not file a disclaimer (“Form 43”).

On January 27, 2004 and April 6, 2004, the claimant underwent surgery to his left foot performed by Martin Pressman, M.D. The claimant remained under the care of Dr. Pressman, who on March 23, 2007 diagnosed the claimant with bilateral tarsal tunnel syndrome, plantar fascial pain and arch pain. On June 5, 2007, the doctor reported that the claimant also suffered from bilateral Achilles tendonosis, and on October 4, 2007, Dr. Pressman recommended the claimant undergo a tarsal tunnel release. On January 18, 2010, the claimant appeared at a deposition and testified that by November 2003, surgery had become the only option for relief although he still suffered from discomfort when he returned to work after the surgeries. However, the claimant also testified that his feet had been feeling better since beginning his employment with FedEx and that he stopped treating regularly with Dr. Pressman in 2008.

In his report of March 13, 2010, Dr. Pressman opined that the claimant’ work exposure during the period of January 2000 to January 2005 was responsible for causing the plantar fascitis and tarsal tunnel syndrome. Claimant’ Exhibit A. The doctor also indicated that the claimant’ work exposure after 2005 was a significant contributing factor to the worsening of the claimant’ condition, stating that the claimant “did not have tarsal tunnel surgery and continued to do significant weightbearing activities at work from 2005 until 2007, and this had a deleterious effect on his tarsal tunnel syndrome. In addition, he developed at that time, Achilles tendonitis, which is also related to his job conditions.” Id., at 2.

On February 11, 2010, the respondents retained Robert Scott Gray, M.D., to perform a review of the claimant’ medical records. Dr. Gray opined that the claimant’ foot problems were caused by the many years of working on cement floors prior to when he first became symptomatic in October 2003. Respondents’ Exhibit 1. Dr. Gray indicated that he did not regard the exposure which occurred during the time period between the claimant’ surgical procedures in 2004 and his retirement in 2007 to be a significant contributing factor to the claimant’ injury “because the medical record does not reflect that his condition worsened significantly and in his own words in his deposition he clearly states that his condition did not worsen to any noticeable degree. It simply stayed the same and was not improved, which eventually led to his retirement.” Id., at 2.

The trial commissioner, after finding Dr. Gray’ opinion was more persuasive than Dr. Pressman’ relative to the effect of the claimant’ work exposure during the period between 2005 and 2007, determined that because “the work activity after 2004 was not injurious,” the claimant should have filed his repetitive trauma claim within one year of the last exposure to the injurious trauma, or sometime in 2005. Findings, ¶ C. As such, the trial commissioner determined that the notice of claim filed in 2008 was untimely and therefore deprived the Workers’ Compensation Commission of subject matter jurisdiction. The trial commissioner denied the claimant’ Motion to Preclude and dismissed the repetitive trauma claim.

The claimant filed a Motion to Correct which was denied in its entirety, and this appeal followed. On appeal, the claimant alleges that “[t]he trial commissioner erred by elevating the respondents’ causation defense to a jurisdictional matter and by, then, adjudicating the issue outside of the preclusion context.” Appellant’ Brief, p. 6. The claimant also contends that the trial commissioner’ failure to grant the claimant’ Motion to Preclude and Motion to Correct constituted error.

We begin our analysis with a recitation of the well-settled standard of deference we are obliged to apply to a trial commissioner’ findings and legal conclusions. “The trial commissioner’s factual findings and conclusions must stand unless they are without evidence, contrary to law or based on unreasonable or impermissible factual inferences.” Russo v. Hartford, 4769 CRB-1-04-1 (December 15, 2004), citing Fairv. People’s Savings Bank, 207 Conn. 535, 539 (1988). Moreover, “[a]s 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.” Burton v.Mottolese, 267 Conn. 1, 54 (2003). “This presumption, however, can be challenged by the argument that the trial commissioner did not properly apply the law or has reached a finding of fact inconsistent with the evidence presented at the formal hearing.” Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007).

It is axiomatic that a challenge to the subject matter jurisdiction of the Workers’ Compensation Commission must be addressed before a trial commissioner can assess the underlying merits of a claim. The Commission is a creature of statute, and “[i]t is a familiar principal that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation.” Castro v. Viera, 207 Conn. 420, 427-428 (1988), quoting Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565 (1963). As such, “once the question of lack of jurisdiction of a court is raised, ‘[it] must be disposed of no matter in what form it is presented;’ and the court must ‘fully resolve it before proceeding further with the case.’ Subject matter jurisdiction, unlike jurisdiction of the person, cannot be created through consent or waiver.” (Internal citations omitted.) Castro, supra, at 429-430.

As mentioned previously herein, the instant claimant asserts that because “[t]he causation defense asserted by the respondents did not present an issue of subject matter jurisdiction,” the trial commissioner’ decision to adjudicate the respondents’ causation defense as a jurisdictional fact prior to reaching a determination regarding the claimant’ Motion to Preclude constituted error. Appellant’ Brief, p. 4. Jurisdictional facts are “[f]acts showing that the matter involved in a suit constitutes a subject-matter consigned by law to the jurisdiction of that court....” Castro, supra, at 434, quoting Valenzuela v. Singleton, 100 N.M. 84, 87 (1982), aff’ sub nom. Allsup’ Convenience Stores, Inc. v. Valenzuela, 100 N.M. 84 (1983). Moreover, an “employer can always contest the existence of ‘jurisdictional facts.’” Del Toro v. Stamford, 270 Conn. 532, 543 (2004). However, “[i]t is well settled that, in the context of a workers’ compensation proceeding, issues of causation, such as whether an injury arose out of and in the course of employment, have not been held to be jurisdictional facts.” Id., at 544. The

compensability of a type of injury, the existence of the employeremployee relationship and the proper initiation of a claim, are all issues that implicate the threshold question of whether an entire category of claims falls under the scope of the act. By contrast, issues of causation typically are addressed only after the threshold question of jurisdiction has been established.

Id., at 544-545. See also DeAlmeida v. M.C.M. Stamping Corporation, 29 Conn. App. 441, 448 (1992) (“[t]he concept of subject matter jurisdiction as including the issue of causation finds no support in either statutory or case law”).

In light of the Supreme Court’s determination that subject matter jurisdiction constitutes a “threshold issue” which must be resolved before the underlying merits of a claim can be heard, it is hardly surprising that the court has also held that a motion to preclude generally cannot “trump” subject matter jurisdiction. In Menzies v. Fisher, 165 Conn. 338 (1973), our Supreme Court reviewed the effects of the 1967 amendments on § 31-297 (b) C.G.S. [now codified at § 31-294c (b) C.G.S.], and remarked,

[b]y this act the legislature sought to correct some of the glaring inequities and inadequacies of the Workmen’ Compensation Act. Among the defects in previous provisions of the act were the needless, prejudicial delays in the proceedings before the commissioners, delays by employers or insurers in the payment of benefits, lack of knowledge on the part of employees that they were entitled to benefits and the general inequality of resources available to claimants with bona fide claims.1

Id., at 342.

The Menzies court went on to note,
[t]he object which the legislature sought to accomplish is plain. Section 31-297 (b) was amended to ensure (1) that employers would bear the burden of investigating a claim promptly and (2) that employees would be timely apprised of the specific reasons for the denial of their claim. These effects would, in turn, diminish delays in the proceedings, discourage arbitrary refusal of bona fide claims and narrow the legal issues which were to be contested.

Id., at 343.

Nevertheless, in DeAlmeida, supra, the court concluded that “[t]he issue of whether the commissioner has subject matter jurisdiction is not barred by the conclusive presumption of General Statutes 31-297 (b), where the issue of subject matter jurisdiction has been clearly raised.” DeAlmeida, supra, at 447. See also Del Toro, supra, at 543.

While there is no question that the preclusion statute imposes a significant penalty upon employers who do not abide by the terms of § 31-294c (b) C.G.S., it is equally clear that our Supreme Court supports its application where appropriate despite the severity of the measure. In Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102 (2008), the court “conclude[d] that, under § 31-294c (b), if an employer neither timely pays nor timely contests liability, the conclusive presumption of compensability attaches and the employer is barred from contesting the employee’ right to receive compensation on any ground or the extent of the employee’ disability. Such a penalty is harsh, but it reflects a just and rational result.” (Emphasis added.. Id., at 130.

However, the Supreme Court has also recognized that there are limitations on a trier’ authority to grant a motion to preclude. For example, in Adzima v. UAC/Norden Division, 177 Conn. 107 (1979), the court, noting that “[t]he statute clearly speaks to a threshold failure on the employer’ part to contest ‘liability,’” id., at 113, denied the claimant’ bid to secure preclusion in a dispute over the extent of the claimant’ decedent’ disability, stating that “[n]either [Menzies, supra] nor the provisions of § 31-297 (b) were intended to apply to a situation where, as here, an employer accepts liability to pay a compensable injury, but contests only on the issue of the extent of the employee’ disability.” (Emphasis in the original.) Id., at 112. Moreover, in Castro, supra, our Supreme Court concluded that a claimant who could not prove the existence of an employer-employee relationship could not prevail in his Motion to Preclude, noting “the conclusive presumption of 31-297 (b) [cannot] operate to work a statutory bar to the opportunity of the alleged employer to contest liability where, as here, the question of the lack of subject matter jurisdiction has been squarely presented to the commissioner.” Id., at 430. Finally, in Del Toro, supra, the Supreme Court concluded that “compensability, in terms of whether a type of injury falls within the scope of the act, is a jurisdictional fact that would allow an employer to contest liability beyond the time frame allotted by § 31-294c (b).”2 Id., at 547.

Turning to the matter at bar, we note at the outset that the respondents’ arguments are directed at the sufficiency of the claimant’ notice of claim rather than its absence. The respondents neither assert that the claimant failed to file a notice nor that they filed a timely disclaimer to the notice of claim; rather, the respondents contend that the medical evidence contained in the record refutes the date of injury cited by the claimant in his notice of claim and thereby renders the notice untimely. As such, lacking subject matter jurisdiction over the claim, the trial commissioner simply did not have authority to grant the claimant’ motion to preclude. In light of the foregoing discussion of pertinent case law, however, we are not persuaded that the respondents’ mode of analysis, which was apparently adopted by the trial commissioner, represents the proper approach to assessing the viability of the claimant’ motion to preclude.

The trial commissioner found that on April 18, 2008, the claimant filed a notice of claim alleging repetitive trauma to both feet. Findings, ¶ 1. The claimant cited as the date of injury December 22, 2007, which date represented the last day of his employment with the instant respondent employer. Respondents’ Exhibit 2, p. 5. See also March 18, 2010 Transcript, pp. 7, 8. It should be noted at the outset “that repetitive trauma injuries are among those injuries that are specifically covered by the [Workers’ Compensation Act].”3 Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 606 (2000). However, while § 31-294c (a) C.G.S. sets out the notice requirements for accidental injuries and occupational diseases, “[t]he act is silent as to the notice requirements for the third type of personal injury defined by § 31-275(16) (A), namely, repetitive trauma injuries.”4 Id., at 608. The court, noting that in Dubois v.General Dynamics Corp., 222 Conn. 67 (1992), it upheld a notice of claim which “substantially complied” with the requirements set out by § 31-294c (a) C.G.S., pointed out that in Pereira v. State, 228 Conn. 535 (1994), it “adopted the following standard. ‘[I]f the notice of claim is sufficient to allow the employer to make a timely investigation of the claim, it triggers the employer’ obligation to file a disclaimer.’” Russell, supra, at 612, quoting Pereira, supra, at 542-543 n. 8.

The Russell court next turned its attention “to the question of the time related information that must be specified in a notice of claim for a repetitive trauma injury for the notice to be ‘sufficient to allow the employer to make a timely investigation of the claim....’” Id., quoting Pereira, supra. The court observed that “the process of injury from a repetitive trauma is ongoing until [the date of exposure]” id., at 613, quoting Discuillo v. Stone & Webster, 242 Conn. 581 n. 11, and “in many cases involving repetitive trauma, the very nature of the injury will make it impossible to demarcate a specific date of injury.” Id. The Russell court then remarked that “[w]ere we ... to construe [the act’ notice of claim requirements] as requiring claimants to give specific dates and places of accidents in their notices of claims for repetitive trauma injuries it would effectively negate legislative intent as expressed in [General Statutes (Rev. to 1987) §] 31275 (8) [now codified as amended at § 31-275 (16) (A)]. Under such a construction, no claimant could ever perfect a repetitive trauma claim.”5 Id., at 614, quoting Grady v. G & L Oxygen &Medical Co., 6 Conn. Workers’ Comp. Rev. Op. 12, 13, 572 CRD-6-87 (September 12, 1988). Thus, because

an employer who is investigating a claim for a repetitive trauma injury must necessarily focus its investigation, not upon any one specific date, but, rather, upon a period of time, ... we conclude that a notice of claim for a repetitive trauma injury that provides adequate information as to the period of time over which the injury is alleged to have occurred ‘is sufficient to allow the employer to make a timely investigation of the claim’ and is sufficient, in the absence of other defects, to support a motion to preclude.

(Internal citations omitted.) Id., at 614-615.

As a result, the notice of claim filed by the Russell claimant alleging an injury that had occurred “prior to 9/23/94” was deemed sufficient to allow the employer to make a timely investigation of the claim and to support a motion to preclude. Id., at 615. The Russell court rejected the argument, propounded by the Russell respondents, “that the only legally sufficient date of injury in a notice of claim for a repetitive trauma injury is the last day of exposure to the trauma.” (Emphasis in the original.) Id., at 615-616. The court distinguished between the purpose of a date of injury in a notice of claim, which is to “allow the employer to make a timely investigation of the claim,” id., at 616, quoting Pereira, supra, and the purpose of the date of injury relative to a statute of limitations, which “is to determine ‘when that [limitation] period begins to run.’” Id., quoting Discuillo, supra, at 575. The Russell court stated,

the rule that the statute of limitations period begins to run from the date of last exposure for some repetitive trauma injuries has no relevance, and bears no logical relationship, to the rule requiring sufficient time related information in a notice of claim to allow an employer to investigate a repetitive trauma injury. Consequently, our determination of when the statute of limitations begins to run for certain types of repetitive trauma injuries is irrelevant to a determination of whether the plaintiff’ notice of claim complied with § 31-294c (a). (Emphasis added.)

Id., at 616.

The court remarked that in Discuillo, supra, its acknowledgement “that our determination that the date of injury in repetitive trauma cases is the last date of exposure was simply for purposes of determining when the statute of limitations begins to run.” (Emphasis in the original.) Russell, supra, at 617. “The last day of exposure to the relevant trauma is a logical choice, as the process of injury from a repetitive trauma is ongoing until that point.” Discuillo, supra, at 583 n. 11. However, the Discuillo court also observed that “although the last day of a claimant’ exposure to a repetitive trauma often coincides with the last day of the claimant’ employment, the former is the sole germane date for calculating the limitation period on a claim.” (Internal citation omitted.) Id. See also Borent v. State, 33 Conn. App. 495, 499 (1994).

We find the foregoing analysis of the distinction between the adequacy of a notice of claim for compliance with the requirements of § 31-294c (a) C.G.S., as opposed to the efficacy of the notice relative to establishing the proper statute of limitations period, particularly instructive in our review of the instant matter. Our review of the notice of claim (“Form 30C” indicates that the claimant, inter alia, reported a date of injury of December 22, 2007 in South Norwalk to his bilateral feet and heels.6 The claimant also checked off the box indicating the notice was for a repetitive trauma or occupational disease claim. Thus, as was the case in Russell, supra, the notice of claim provided a date certain before which it may be reasonably inferred the repetitive trauma occurred.7 The date selected by the claimant represented his last day of employment with the employer; this board “has repeatedly held that, as a matter of law, the date of injury of a repetitive trauma is the last day of exposure, which is usually the last date of employment. Our courts have endorsed this construction.” (Internal citations omitted.) Borent, supra, at 499. As such, applying the court’ reasoning in Russell to the instant claim, we find it may be reasonably inferred that “the defendant was given sufficient notice so as to have focused its investigation on the period of time preceding the date the plaintiff specified in his notice of claim.” Id., at 615. Thus, consistent with the result reached in Russell, we hold that the notice of claim filed in this matter was likewise sufficient on its face to support a motion to preclude. This determination is consistent with the Appellate Court’ holding in Borent, supra, wherein the court “determined that, for purposes of the statute of limitations, the last date of exposure was the relevant date of injury; it nonetheless concluded that the plaintiff’ notice of claim, which alleged a date of injury different from the last date of exposure, was sufficient to support a motion to preclude.” (Emphasis in the original; internal citation omitted.) Russell, supra, at 618. See also Borent, supra, at 499-500.

We concede the validity of the respondents’ argument that the last day of employment does not always coincide with the last date of injurious exposure. As the respondents correctly point out, “an employee may change positions within the company, ending his or her exposure to the injurious activity while still working for the same employer.... Likewise, the medical experts may find that certain periods of the employment are injurious while other periods of the employment are not.” Appellees’ Brief, p. 7. We also recognize that the respondents adduced a great deal of evidence in support of their argument that the claim was untimely filed. For example, the respondents point to the opinion of their expert, Dr. Gray, the chronology of the claimant’ treatment and surgeries as contained in the records of Dr. Pressman, and the claimant’ own testimony regarding the ebb and flow of his symptoms relative to his various positions with the respondent employer. Indeed, were our inquiry confined to determining whether subject matter jurisdiction lies relative to the running of the statute of limitations, these are precisely the sort of arguments we would expect the respondents to make. Had the respondents filed a timely disclaimer to the notice of claim, then perhaps our inquiry today would in fact be confined to an analysis of the timeliness of the notice of claim relative to subject matter jurisdiction. But the respondents did not file such a disclaimer, and this board is unwilling to allow the respondents the opportunity to circumvent the strictures of preclusion by utilizing a statute of limitations analysis for a notice of claim which on its face satisfied the standard set forth in Russell, supra; i.e., a notice of claim which allowed the respondent to make a timely investigation of the claim.

In light of our findings herein, we would draw the parties’ attention to the holdings of our Supreme Court in both Harpaz, supra, and Donahue v. Veridiem, Inc., 291 Conn. 537 (2009) which address the limitations on the role of the defendants once a motion for preclusion has been granted. In Harpaz, the court found the trial commissioner had erroneously relied on evidence supplied by the defendants’ expert in reaching the determination that the claimant had failed to prove the compensability of the claim. Noting that “[t]here is nothing, however, to suggest that the commissioner would have made the same determination in the absence of the expert testimony presented by the defendant,” id., at 132, the court remanded the matter with a directive that the defendant was “barred from contesting the compensability of the plaintiff’ claim, including the extent of the plaintiff’ disability, leaving the plaintiff to his burden of proof.” Id. The Donahue court elaborated on the standard set in Harpaz, holding that “once a motion to preclude is granted, the only role an employer plays is to decide whether to stipulate to the compensation claimed. If the employer does not so stipulate, the claimant proceeds with her case, subject to examination by the commissioner.” Donahue, supra, at 546-547. In addition to the prohibition on providing expert evidence, the Donahue court specifically prohibited defendants from crossexamining witnesses or submitting briefs, choosing instead to rely upon the trial commissioner to assess the claimant’ evidence. “Had the legislature intended not to allow the commissioner to probe the plaintiff’ proof, it readily could have stated that the compensability of the injury shall be conclusively presumed, rather than that the employer is conclusively presumed to have accepted the compensability of the claim.” Id., at 553.

We are of course cognizant of the Harpaz court’ observation that “that the legislature prescribed the conclusive presumption for the purpose of protecting employees with ‘bona fide claims.’” Harpaz, supra, at 131, quoting Menzies v. Fisher, 165 Conn. 338, 343 (1973). Similarly, in Donahue, supra, the court remarked that “the granting of a motion to preclude does not relieve a claimant of her obligation to prove her claim – that the compensation claimed in fact arises from the compensable injury – by competent evidence.” Id., at 552. As such, in the event that the instant respondents do not stipulate to compensability, this matter must be set down for further proceedings in order to provide the claimant the opportunity to establish a prima facie claim of compensability subject to the limitations set forth in Harpaz, supra, and Donahue, supra. We would caution the parties that the proceedings permitting the claimant to make his prima facie claim cannot include any of the evidence presented by the respondents in the proceedings below as such evidence would run afoul of the holdings in Harpaz, supra, and Donahue, supra, barring respondents from presenting a defense to compensability.8

Finally, the claimant also claims as error the trial commissioner’ denial of his Motion to Correct. Insofar as the proposed corrections were primarily directed at the conclusions of law reached by the trial commissioner, the corrections sought are granted consistent with this opinion.

Having found error, the November 22, 2010 Finding and Denial/Dismissal of the Commissioner acting for the Seventh District is accordingly reversed and remanded for additional proceedings consistent with this opinion.

Commissioners Scott A. Barton and Christine L. Engel concur in this opinion.

1 § 31-297 (b) C.G.S. (Rev. to 1971) [now codified at 31-294c (b) C.G.S.)] states: “Whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the commissioners 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, and a copy thereof shall be sent to the employee. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee’ right to receive compensation on any grounds or the extent of his disability.” BACK TO TEXT

2 Section 31-294c (b) C.G.S. (Rev. to 2003) states, in pertinent part, “[w]henever 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 or death on or before the twenty-eighth day after he has received the written notice of claim, but the employer may contest the employee’ 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 or death on or before the twenty-eighth day after receiving a written notice of claim and who fails to commence payment for the alleged injury or death on or before such twenty-eighth day, shall be conclusively presumed to have accepted the compensability of the alleged injury or death. BACK TO TEXT

3 Section 31-275(16) (A) C.G.S. (Rev. to 2007) states: “‘Personal injury’ or ‘injury’ includes, in addition to accidental injury that may be definitely located as to the time when and the place where the accident occurred, an injury to an employee that is causally connected with the employee’ employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease. BACK TO TEXT

4 Sec. 31-294c (a) C.G.S. (Rev. to 2007) states, in pertinent part: “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 manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within the two-year period or within one year from the date of death, whichever is later. 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 symptom 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. An employee of the state shall send a copy of the notice to the Commissioner of Administrative Services. As used in this section, “manifestation of a symptom” means manifestation to an employee claiming compensation, or to some other person standing in such relation to him that the knowledge of the person would be imputed to him, in a manner that is or should be recognized by him as symptomatic of the occupational disease for which compensation is claimed.” BACK TO TEXT

5 General Statutes § 31 275 (8) (Rev. to 1987) is now codified as amended at § 31-275 (16) (A). See footnote 3, supra. BACK TO TEXT

6 We take administrative notice of the Form 30C as it was not entered as an exhibit. We also note that both parties refer to the Form 30C in their briefs. Appellant’ Brief, pp. 1-2; Appellees’ Brief, p. 9. BACK TO TEXT

7 In Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596 (2000), the notice of claim indicated that the repetitive trauma had occurred “prior to 9/23/94.” Id., at 615. BACK TO TEXT

8 In the instant matter, it may be reasonably inferred that the instant claimant has already satisfied his burden in this regard in spite of the expert evidence proffered by the respondents given that the trial commissioner determined that “the Claimant’ years of standing and walking on hard surfaces while working for the Respondent-Employer ... caused the Claimant’ bilateral foot condition....” Findings, ¶ C. However, in light of the fact that the issue before the trier was whether to grant a Motion to Preclude, and not a request for a ruling on compensability, we believe the due process rights of the respondents would be disserved were we to allow this finding to stand. BACK TO TEXT

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