State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Dubrosky v. Boehringer Ingelheim

CASE NO. 5682 CRB-4-11-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 5, 2012

THOMAS DUBROSKY

CLAIMANT-APPELLEE

v.

BOEHRINGER INGELHEIM CORPORATION

EMPLOYER

and

ESIS NEW ENGLAND

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Lawrence Morizio, Esq., Cousins, Desrosiers & Morizio, PC, 2563 Main Street, Stratford, CT 06615-5844.

The respondents were represented by Colette S. Griffin, Esq., Howd & Ludorf, LLC, 65 Wethersfield Avenue, Hartford, CT 06114-1190.

This Petition for Review from the September 6, 2011 Finding and Award of the Commissioner acting for the Fourth District was heard March 23, 2012 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jodi Murray Gregg and Daniel E. Dilzer.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents in this matter have appealed from a Finding and Award granted the claimant in this matter. This case was the subject of a Motion to Preclude, which the trial commissioner approved in the Finding and Award. The respondents argue that this decision was in error and they should be able to contest the level of disability in this claim. We disagree. We find that as the respondents did not take any material actions responsive to the claimant’s Form 30C within the statutorily mandated 28 days, the trial commissioner was obligated to grant preclusion.

The commissioner reached the following Findings of Fact. The claimant testified that he had worked for the respondent since 1974 and had sustained an injury on January 9, 2009, falling in the parking lot while working. The claimant said he sent an e-mail on January 12, 2009, to his supervisor, Daniel Guinipero, notifying him of the incident. The claimant also filed a Form 30C seeking compensation for this injury. This was received by the respondent and the commission on February 18, 2009. The claimant testified at a deposition that he first sought medical attention for this injury on February 27, 2009.

A claim handler for the respondent’s insurer, Cecilia Fryszer, testified that the respondent received a bill on June 1, 2009 from the claimant’s treating physician, Dr. David Bindelglass. This bill sought payment for dates of service on February 27, 2009 and March 27, 2009; and it was paid on June 18, 2009. She testified the respondent paid all medical bills related to this claim within 28 days.

The trial commissioner found the claim was investigated and a Form 43 contesting the claim was filed on October 20, 2009, less than one year from the claimed injury. The commissioner further found Dr. Bindelglass causally related the claimant’s medical condition and need for treatment to the workers’ compensation injury. The commissioner further found counsel for the respondent represented it was impossible to commence payment within 28 days of the claimant filing a Form 30C as no medical bills had been received from the claimant during that time period for his injury; and all bills were paid promptly upon receipt.

Based on this evidence, the trial commissioner concluded the claimant filed a timely Form 30C and the respondent had accepted the claim although no voluntary agreement had been issued as of the close of the record. The commissioner concluded the respondent failed to issue a timely disclaimer to the Form 30C. While the respondent could not have paid for the medical treatment rendered to the claimant during that 28 day period as they had not been informed treatment had been rendered, this did not prevent the respondent from issuing a Form 43 within the 28 day period under the statute. The trial commissioner granted the Motion to Preclude filed by the claimant, and determined the respondents were precluded from contesting the claim, including the extent of disability. The respondents were therefore ordered to pay all reasonable and necessary medical treatment causally related to the claim.

The respondents filed a Motion to Correct seeking three corrections. They sought to delete the finding as to the absence of a voluntary agreement. They also sought to change the finding regarding the failure to file a Form 43 to represent that payment of medical bills was sufficient compliance with the preclusion statute. Finally, they argued the trial commissioner had not provided a basis for finding knee replacement surgery was compensable. The trial commissioner denied this Motion in its entirety and this appeal ensued.

The central premise of the respondents appeal is based on their position that having paid the claimant’s medical expenses once they were received, that they were entitled to the one year safe harbor under § 31-294c(b) C.G.S. to investigate the claim without determining whether they would accept the injury as compensable.1 They argue that under the facts of this case strict compliance with the statute posed an issue of “impossibility” and that the “objective of § 31-294c C.G.S. has not been disturbed” as a result of the respondent’s actions. Respondents’ Brief, p. 9. The respondents cite Thompson v. Roach, 52 Conn. App. 819 (1999) for this proposition. We are not persuaded.

The issues in Thompson dealt not with disclaimers to the claimant, but with the provisions of § 31-349 C.G.S. governing the transfer of claims to the Second Injury Fund. We also note that in Thompson the trial commissioner reached a factual determination as to the respondent “that is was not possible to comply with the statute despite its efforts.” Id., 824. In the present case, the trial commissioner was presented with the respondent’s argument that statutory compliance was impossible, and rejected the argument. Since Thompson was based on affirming a finding of fact on the issue of “impossibility” it offers no basis to reverse a contrary factual determination on this issue.

The claimant argues this case is essentially governed by our precedent in Monaco-Selmer v. Total Customer Service, 5622 CRB-3-10-12 (January 19, 2012). In that case, the respondents made an ineffectual effort to comply with § 31-294c(b) C.G.S. by proferring an arbitrary sum of money to the claimant. We determined this did not constitute “commencing payment” so as to utilize the “pay without prejudice” statutory safe harbor during the first 52 weeks following the filing of a Form 30C. While we appreciate the respondent’s position that their conduct in this case did not financially disadvantage the claimant, unlike what occurred in Monaco-Selmer, this does not persuade us that the respondents complied with the preclusion statute. Monaco-Selmer stands for the proposition there must be actual compliance with § 31-294c(b) C.G.S. to avoid preclusion, not merely the intent to comply on the part of the respondent.

The Supreme Court in Donahue v. Veridiem, Inc., 291 Conn. 537 (2009), made clear that preclusion is a “harsh remedy.” Id., 550. The Donahue opinion, as well as the Appellate Court’s opinion in Mehan v. Stamford, 127 Conn. App. 619 (2011), also made clear that the imprimatur of Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102 (2008) is that preclusion must be granted by the trial commissioner when a respondent fails to comply with § 31-294c(b) C.G.S.

Turning first to that text, § 31-294c(b) provides in relevant part that ‘‘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.’’ We have referred to this statute, or its predecessor, as setting forth a ‘‘conclusive presumption.’’

Donahue, supra, 548.

The trial commissioner in this case concluded there was no issue of “impossibility” that would have prevented the respondents from issuing a Form 43 within 28 days of receiving the claimant’s Form 30C. While the respondents may have found the other responsive actions to the receipt of the claim impractical, we are not persuaded that there was any reason a disclaimer advising the claimant of the respondent’s position could not have been filed in this case. Moreover, in Monaco-Selmer, supra, citing Casey v. Northeast Utilities, 249 Conn. 365 (1999), we pointed out there was a strong public policy behind providing claimants with a timely response as to how the respondent intended to handle their pending claim. “Fundamental fairness and our administrative regulations demand that when payments are made without prejudice that the claimant be properly informed of this decision. Following these clear directives achieves two important goals. It provides necessary sustenance to injured workers while prompting employers and insurers to reach prompt decisions as to how they intend to address disputed claims.”

Monaco-Selmer, supra.

The claimant in this case filed a Form 30C. Within 28 days the statute required the respondents to respond in some fashion to the claim or face preclusion. None of the affirmative actions that would avoid preclusion were taken. While it may not have been possible in this case to pay for medical care or pay indemnity benefits without prejudice, it was possible to file a Form 43 (or in the alternative, accept the claim) and advise the claimant as to what the respondent’s intentions were. We believe that when this does not occur our precedent mandates that the trial commissioner grant a Motion to Preclude.2

Finally, we turn to the issue of the claimant’s bid for knee replacement surgery. Pursuant to Donahue, supra, the trial commissioner must rely solely on the claimant’s medical evidence once preclusion is granted. Id., 546-555. Dr. Binderglass’s February 5, 2010 letter states that “with a reasonable degree of medical probability that the injury which occurred on January 2009 has accelerated the process and caused him to require knee replacement surgery earlier than I would have otherwise predicted.” See Respondents’ Exhibit 2, Tab 7. We believe the trial commissioner could reasonably conclude from the record that the compensable injury was a “substantial factor” in the claimant’s need for surgery. See Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008) and Dixon v. United Illuminating Co., 57 Conn. App. 51, 60 (2000). We find no error in denying the respondent’s Motion to Correct.

The claimant in this matter filed a Form 30C and the respondent failed to take any action pursuant to § 31-294c(b) C.G.S. within the 28 day period to avert preclusion. Given the facts and the law the trial commissioner was obligated to grant the Motion to Preclude.

The Finding and Award is affirmed.

Commissioners Jodi Murray Gregg and Daniel E. Dilzer concur in this opinion.

1 The statute herein reads as follows:

b) Whenever liability to pay compensation is contested by the employer, he shall file with the commissioner, on or before the twenty-eighth day after he has received a written notice of claim, a notice in accord with a form prescribed by the chairman of the Workers’ Compensation Commission stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested. The employer shall send a copy of the notice to the employee in accordance with section 31-321. If the employer or his legal representative fails to file the notice contesting liability on or before the twenty-eighth day after he has received the written notice of claim, the employer shall commence payment of compensation for such injury 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’s right to receive compensation on any grounds or the extent of his disability within one year from the receipt of the written notice of claim, provided the employer shall not be required to commence payment of compensation when the written notice of claim has not been properly served in accordance with section 31-321 or when the written notice of claim fails to include a warning that (1) the employer, if he has commenced payment for the alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim, shall be precluded from contesting liability unless a notice contesting liability is filed within one year from the receipt of the written notice of claim, and (2) the employer shall be conclusively presumed to have accepted the compensability of the alleged injury or death unless the employer either files a notice contesting liability on or before the twenty-eighth day after receiving a written notice of claim or commences payment for the alleged injury or death on or before such twenty-eighth day. An employer shall be entitled, if he prevails, to reimbursement from the claimant of any compensation paid by the employer on and after the date the commissioner receives written notice from the employer or his legal representative, in accordance with the form prescribed by the chairman of the Workers’ Compensation Commission, stating that the right to compensation is contested. Notwithstanding the provisions of this subsection, an employer who fails to contest liability for an alleged injury 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

2 The respondents have argued that the legislature intended “a just and rational result,” Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382 (1993) and the trial commissioner’s statutory construction in the Finding and Award did not reach this status. Respondents’ Brief, p. 16. We disagree. The respondents statutory construction would create a circumstance where a claimant could potentially wait as long as a year to ascertain whether his or her claim is accepted based on their treater’s billing procedures. This does not seem to us to promote a “just and rational” result and surely would lead to inconsistent results. BACK TO TEXT

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Page last revised: September 5, 2012

Page URL: http://wcc.state.ct.us/crb/2012/5682crb.htm

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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