Soto v. Michael Chrysler Plymouth

The claimant was represented by Thomas C. Simones, Esq., O’Brien & Simones, LLC, 87 Boston Post Road, Waterford, CT 06385.

The respondent-employer was represented by Thomas J. Hagarty, Jr., Esq., Halloran & Sage, One Goodwin Square, 225 Asylum Street, Hartford, CT 06103-4303.

This Petition for Review from the July 13, 2004 Ruling on Respondent’s Motion to Dismiss and Claimant’s Motion to Preclude Defense Regarding C.G.S. 31-290a and Finding and Award Pursuant to C.G.S. 31-290a of the Commissioner acting for the Second District was heard December 17, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr. and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, Jonathan Soto, has appealed from the July 13, 2004 Ruling on Respondent’s Motion to Dismiss and Claimant’s Motion to Preclude Defense Regarding C.G.S. 31-290a and Finding and Award Pursuant to C.G.S. 31-290a of the Commissioner acting for the Second District. We affirm the decision of the trial commissioner.

We begin our decision with a review of the procedural history in this case. On March 7, 2002 the claimant filed a Notice of Claim for compensation for an alleged work-related respiratory injury. On September 30, 2002 the claimant filed a claim for wrongful termination against the respondent-employer under § 31-290a C.G.S. The claim for the alleged respiratory injury was dismissed on January 22, 2003. The claimant appealed that dismissal to this board. The trial commissioner’s January 22, 2003 Finding and Dismissal of the underlying claim was affirmed by this board on February 3, 2004. See, Soto-Velez v. Michael’s Chrysler Plymouth, 4628 CRB-2-03-2 (February 3, 2004).

On July 13, 2004 the trial commissioner issued a “Ruling on Respondent’s Motion to Dismiss and Claimant’s Motion to Preclude Defense Regarding C.G.S. 31-290a and Finding and Award Pursuant to C.G.S. 31-290a.” The trier denied the claimant’s Motion to Preclude Defense regarding the § 31-290a claim, granted the respondent’s Motion to Dismiss the claimant’s claim for damages pursuant to § 31-290a and ordered a civil penalty against the respondent-employer pursuant to § 31-288(b)(2)1 C.G.S. On July 22, 2004 the claimant filed a Petition for Review of that decision. On August 26, 2004 this board ordered a dismissal of that appeal under the well settled rule that this board lacks jurisdiction over appeals from § 31-290a claims.2 However, shortly after our dismissal the claimant, via his brief, brought to our attention that he was requesting review of a slightly different issue, whether the Motion to Preclude portion of the Act was applicable to § 31-290a claims. Therefore, on September 15, 2004 a portion of the appeal was partially reinstated. The claimant’s appeal is now limited to the following issues: “[W]hether or not this board has jurisdiction to consider an appeal from the denial of a motion to preclude a respondent from contesting a wrongful discharge claim under § 31-290a, and if so, whether preclusion under § 31-294c applies to an action brought before this Commission under § 31-290a.” September 15, 2004 Order to Vacate and Modify Dismissal of Appeal.

The first issue we address is whether this board has jurisdiction to hear this appeal. Although this case involves a § 31-290a wrongful discharge matter we do not believe that fact necessarily takes procedural matters, such as the applicability of a Motion to Preclude, outside of the appellate jurisdiction of this board. We have previously found that awards of attorney’s fees which relate to § 31-290a claims were appropriately appealed to the Compensation Review Board. Prioli v. State/Connecticut State Library, 3955 CRB-6-98-12 (January 13, 2000), aff’d, 64 Conn. App. 301 (2001), cert denied, 258 Conn. 917 (2001); Spak v. Shelton Lakes Residence, 4372 CRB-4-01-3 (December 7, 2001). We have reasoned that although the award of attorney’s fees stems from the § 31-290a claim, a separate statute § 31-327(a) entitles a commissioner to make a separate award of attorney’s fees, therefore, the matter of the attorney’s fees award falls within our appellate jurisdiction. Prioli, supra. We explained, “unlike the primary elements of § 31-290a (discrimination and wrongful discharge), which resemble a civil action in tort, the proper amount of attorney’s fees for a lawyer appearing before the workers’ compensation commission is a matter specifically regulated by this Commission.” Id.

Similarly, the preclusion provision of § 31-294c is separate from the cause of action for wrongful discharge under § 31-290a. Section 31-294c is a specific procedural provision under the Workers’ Compensation Act. “The rule [regarding preclusion] contemplates and requires only the simplest procedure and compliance with it enables the principal issues to be framed before a hearing is commenced.” Menzies v. Fisher, 165 Conn. 338, 348 (1973) citing Chapman v. Foremost Dairies, Inc., 249 S.C. 438, 452, 154 S.E. 2d 845. The Motion to Preclude is a matter specifically adjudicated by this commission.

Under § 31-301(a) C.G.S. this board has authority to hear appeals “after a decision of the commissioner upon a motion.” We have previously held that this includes the right to hear appeals on decisions made on motions to preclude. Marshall v. UTC/Pratt & Whitney, 11 Conn. Workers’ Comp. Rev. Op. 204, 1317 CRD-1-91-10 (September 27, 1993). Our ability to hear such decisions fits the Act’s purpose of providing a speedy, effective and inexpensive method for determining compensation claims. Doe v. Yale University, 252 Conn. 641, 672 (2000); Poventud v. Eagle Four, 6 Conn. Workers’ Comp. Rev. Op. 72, 775 CRD-5-88-10 (December 30, 1988). Therefore, we believe the issue in this case is properly before the board.

That being said we agree with the trial commissioner that “preclusion as set forth in C.G.S. 31-294c(b) does not apply to the claimant’s claims for damages pursuant to C.G.S. 31-290a.” Findings, ¶ D. When engaging in statutory interpretation we first look at the plain meaning of the statute. Public Act 03-154,3 State v. Courchesne, 262 Conn. 537 (2003); Pasquariello v. Stop & Shop Companies, Inc., 4730 CRB-7-03-9 (September 3, 2004). Section 31-294c (b) is the statute that precludes an employer from contesting liability. The language of § 31-294c(b) specifically states that it relates to claims for “compensation.” The statute states in pertinent part, “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 . . . stating that the right to compensation is contested . . . . [A]n 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.”

In contrast, a § 31-290a claim is not a claim for compensation but instead a “statutorily created tort.” Ford v. Blue Cross & Blue Shield of Conn., 216 Conn. 40, 52 (1990). There are many differences between compensation claims and wrongful discharge claims. Compensation benefits are awarded to compensate employees for injuries by imposing a type of strict liability, without regard to fault. Alling v. Davis & Geck, 4483 CRB-7-02-1 (December 20, 2002). By contrast § 31-290a is more similar to a traditional tort action. Another difference between the two claims is the burden of proof requirements. In wrongful discharge actions there is a shifting burden of proof, Ford, supra, while in compensation claims the claimant has the burden of proving his or her injury is causally connected to their employment. Rampulla v. Fox Hill Nursing & Rehabilitation Center, 4696 CRB-1-03-7 (June 23, 2004) citing Spatafore v. Yale University, 239 Conn. 408, 416 (1996). Additionally, there are different applicable statutes of limitation. Section 31-294c provides a one-year statute of limitations for accidental injury and repetitive trauma claims and a three-year statute of limitation on occupational disease claims, while the statute of limitations for a § 31-290a action is three years as prescribed by § 52-577 C.G.S. See, De Olivera v. Ross & Roberts, judicial district of Fairfield at Bridgeport, Docket No. 329389 (September 4, 1998, Nadeau, J.); Hoopes v. First National Supermarkets, Inc., judicial district of Hartford/New Britain at New Britain, Docket No. 456915 (October 6, 1995, Fineberg, J.). The plain meaning of § 31-294c (b) along with the substantial differences between actions for compensation and actions for discharge supports the trier’s determination that the preclusion provision of § 31-294c(b) does not apply to § 31-290a claims.

Therefore, we affirm the decision of the trial commissioner.

Commissioners A. Thomas White, Jr. and Charles F. Senich concur.

1 The civil penalty was ordered due to the respondent-employer’s conduct while the formal proceedings were pending. This included failure to attend hearings despite repeated written and verbal warnings and an imposition of a fine. The trial commissioner also faulted the respondent in its failure to obtain counsel until late in the proceedings which caused inconvenience and delay. Findings, ¶ P. BACK TO TEXT

2 Section 31-290a states in pertinent part, “[any] party aggrieved by the decision of the commissioner may appeal the decision to the Appellate Court.” See, e.g. Brett v. Pratt & Whitney, 4137 CRB-1-99-10 (October 29, 1999); Bylo v. Pepsi Cola Company, 4058 CRB-3-99-6 (July 13, 1999). BACK TO TEXT

3 Public Act 03-154 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