Callender v. Reflexite Corporation

The claimant was represented by Jennifer B. Levine, Esq., and Harvey L. Levine, Esq., Law Offices of Harvey L. Levine, 754 West Main Street, New Britain, CT 06053.

Respondent Travelers Property & Casualty was represented by Deborah J. DelBarba, Esq., Law Offices of Charles G. Walker, 300 Windsor Street, P.O. Box 2138, Hartford, CT 06145-2138.

Respondent Zurich North America was represented by Michael A. Burton, Esq., Sharp, Shields & Smith, 500 Enterprise Drive, Suite 4B, Rocky Hill, CT 06067.

Respondent One Beacon Insurance was represented by Dominic Statile, Esq., Montstream & May, L.L.P., 655 Winding Brook Drive, Glastonbury, CT 06033. However, respondent did not participate in appeal proceedings.

Respondent Fireman’s Fund Insurance Company was represented by Paul Vance, Jr., Esq., Melick, Porter & Shea, L.L.P., 28 State Street, Boston, MA 02109. However, respondent did not participate in appeal proceedings.

Respondent Liberty Mutual Insurance Group was represented by Vincent DiPalma, Esq., Turret & Rosenbaum, 101 Barnes Road, 3rd Floor, Wallingford, CT 06492. However, respondent did not participate in appeal proceedings.

This Petition for Review from the September 28, 2009 Finding and Dismissal of the Commissioner acting for the Sixth District was heard on March 26, 2010 before a Compensation Review Board panel consisting of Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Jack R. Goldberg.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the September 28, 2009 Finding and Dismissal of the Commissioner acting for the Sixth District. We find no error and accordingly affirm the decision of the trial commissioner.

The trier made the following factual findings which are pertinent to our review. The claimant sustained a number of compensable injuries as a result of repetitive trauma while working for the employer and received workers’ compensation benefits. Over time, disputes arose over the claimant’s ability to return to work, medical treatment and claimed injuries to new body parts which resulted in additional litigation. The claimant filed new notices of claim relative to the new injuries she alleged arose out of the same repetitive trauma that had caused her original accepted injuries.1 The claimant ultimately filed two Motions to Preclude to estop the respondents from contesting the compensability and/or extent of disability relative to the additional body parts she claims are compensable. The respondents contend the Motions to Preclude are improper and should be dismissed.

On the basis of the foregoing, the trial commissioner concluded that the result sought by the claimant is “contrary to the letter and spirit of C.G.S. Section 31-294, Menzies, Harpaz and Donahue line of cases.”2 Findings, ¶ 8. Noting that “Motions to Preclude are to be granted whenever a respondent is less than vigilant and diligent in responding to a newly filed claim,” Id., the trial commissioner determined that such was not the case in this instance and dismissed both of the claimant’s Motions to Preclude.3 The trial commissioner stated that “the real issue is whether on the merits the new injuries/claims result from the same repetitive trauma,” (emphasis in the original), Id., and left the matter open subject to future hearings at the request of the parties.

The claimant filed a Motion to Correct which was denied in its entirety. In addition, the claimant filed a Motion for Articulation which the trier also denied, observing that “[t]he September 28, 2009 decision speaks for itself.” October 6, 2009 Ruling on Motion for Articulation, p. 2. On appeal, the claimant argues that the trial commissioner “erred as a matter of law by failing to apply the proper legal standard in evaluating the sufficiency of claimant’s Motion to Preclude.” Appellant’s Brief, p. 11. In addition, the claimant contends that the trier erroneously found that the May 1112, 2006 injuries were caused by the same repetitive trauma that caused the October 18, 2004 injuries. The claimant also avers that the record does not support the trier’s conclusion that the respondents accepted the May 11-12, 2006 claim, paid the claimant workers’ compensation payments relative thereto or attended workers’ compensation hearings for that specific date of injury.

We begin our analysis of the merits of this appeal with a recitation of the wellsettled standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions. “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, 329 (2004) citing Burton v. Mottolese, 267 Conn. 1, 54 (2003). As a result, we

In the instant appeal, the claimant has appealed the trier’s dismissal of the claimant’s Motion to Preclude associated with the injury of May 11-12, 2006. The claimant is essentially challenging the trier’s interpretation of § 31-294c(b) C.G.S., which sets forth the procedures by which an employer may contest liability to pay a claimant workers’ compensation benefits.4 These provisions were introduced as part of Public Acts 1967, No. 842, according to which

Menzies v. Fisher, 165 Conn. 338, 342 (1973). See also 12 H.R. Proc., Pt. 9, 1967 Sess., pp. 4035-37.

Moreover, “[t]he object which the legislature sought to accomplish is plain.” Id., at 343. The legislature amended the statute “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.” Id.

The scope of the statute was refined in Adzima v. UAC/Norden Division, 177 Conn. 107 (1979), wherein the court declined to extend preclusion to a situation in which the employer has timely contested liability for the initial claim and then seeks to contest the extent of the claimant’s disability. Noting that “[t]he statute clearly speaks to a threshold failure on the employer’s part to contest ‘liability,’” Id., at 113, the Adzima court “concluded that no such extension is warranted.” Id. The court also observed that the enabling legislation did not appear to contemplate such an extension, remarking that

The scope of the statute was again discussed in Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102 (2008), wherein the court determined that “if an employer neither timely pays nor timely contests disability, the conclusive presumption of compensability attaches and the employer is barred from contesting the employee’s right to receive compensation on any ground or the extent of the employee’s disability.” Id., at 130. It should be noted that as was the case in Adzima, supra, the Harpaz court’s analysis was based on the premise that the employer had failed to properly contest the initial claim of liability. Remarking that in Adzima, “this court concluded that the conclusive presumption did not bar an employer who timely had paid all benefits due under the initial claim from contesting a subsequent claim for additional benefits,” Harpaz, supra, at 114, the Harpaz court went on to observe that “[t]he legislature presumably was fully cognizant that the effect of the conclusive presumption was harsh, but ensured … that employers would be warned of the consequences of their untimely response to a notice of claim.” Id., at 119. The court also made it clear that preclusion was reserved for “bona fide claims” only, Id., at 131, and the burden remained with the claimant to prove that a compensable injury, i.e., an injury arising out of and in the course of the employment, had been sustained.

The foregoing analysis of relevant case law clearly demonstrates that claim preclusion is intended to encourage the prompt investigation of claims by employers while discouraging dilatory practices that will negatively impact both claimants and the efficient operation of the workers’ compensation system. Moreover, while it is unassailable that every claim must be assessed on a case-by-case basis, the foregoing discussion of applicable precedent also militates strongly in favor of the interpretation that Motions to Preclude are, by and large, intended for use at the time of a claimant’s initial injury. In fact, the Adzima court specifically prohibited the use of the Motion to Preclude in situations when the extent of the claimant’s disability, rather than initial liability, is being contested, noting, as previously mentioned herein, that the purpose of the Motion to Preclude is to address the “threshold failure on the employer’s part to contest ‘liability.’” Id., at 113. Given this contextual framework, we therefore find that the circumstances surrounding the filing of a second Form 30C in the instant matter simply did not merit the granting of a Motion to Prelude.

The record indicates that the claimant filed her first Form 30C on or about October 11, 2005 for repetitive trauma injuries stemming from the period of December 6, 1987 through October 18, 2004. Claimant’s Exhibit A. The implicated body parts were the neck, right shoulder, right arm, right hand, left shoulder, left hand and lower back. On March 28, 2006, the claimant filed a Motion to Preclude the employer from contesting liability and extent of disability for claims arising from the date of injury of October 18, 2004. The claimant continued to work at her usual occupation until April 29, 2006, June 18, 2009 Transcript, p. 38, when she presented to New Britain General Hospital Emergency Department complaining of pain in her neck and upper back.6 See Claimant’s Exhibit J. The claimant was diagnosed with back spasm and stayed out of work until May 11, 2006, when she attempted to return to full duty for the third shift. June 19, 2009 Transcript, p. 37. The claimant testified that she was only able to complete seven hours of her eight-hour shift and has been unable to return to work since. Id.

The claimant filed a second Form 30C on May 7, 2007, again alleging repetitive trauma and identifying the date of injury as May 1112, 2006. Claimant’s Exhibit B. A “Schedule A” itemizing a number of implicated body parts and syndromes was attached and included the same body parts enumerated on the original Form 30C along with, inter alia, a reference to “chronic pain syndrome with elements of fibromyalgia,” Id., Schedule A, p. 1, and a notation that “[c]urrent depression is clearly a function of her pain syndrome and loss of employment, both causally related to original injury.” Id., Schedule A, p. 2. The respondents did not file a Form 43 disclaiming liability for the injuries recited in the second Form 30C.7 On June 2, 2009, the claimant filed a second Motion to Preclude relative to the May 1112, 2006 date of injury, at which time the claimant also amended the Motion to Preclude filed on March 28, 2006. Appellant’s Brief, pp. 5-6. See also June 18, 2009 Transcript, p. 8. On appeal, the claimant is challenging the trier’s dismissal of the second Motion to Preclude.

The claimant argues that a second Motion to Preclude was warranted because “the new injury the Claimant suffered on May 11-12, 2006 further substantially aggravated her prior neck injury and myofascial pain syndrome, as well as created additional disabilities, and is a significant factor in her need for medical treatment thereafter.” Appellant’s Brief, pp. 3-4. The claimant maintains that because the second Form 30C substantially complied with the requirements of § 31-294c(b) C.G.S., the respondents were therefore obligated to respond, either by accepting liability for the claimed injuries, commencing payments to the claimant, or filing a disclaimer. The claimant asserts that because the respondents failed to avail themselves of any of their statutory options, the trier’s decision to dismiss the Motion to Preclude without finding that the respondents had filed a responsive Form 43 constituted error. In fact, the claimant states that “[a]ccording to this statute, the respondent is always required to file a Form 43 Notice of Intention to Contest Liability, whether it is filed within twenty eight days or within one year from the receipt of the Form 30C depends on the facts and circumstances of each case.” (Emphasis in the original.) Appellant’s Brief, p. 22. We disagree.

In Jones v. New Haven Child Development, 4316 CRB-3-00-11 (October 29, 2001), this board stated, “[o]nce the compensability of an incident is established, disability related to later injuries that arise from that same incident may be compensated without the filing of an additional notice of claim.” Id., citing Roman v. Eyelets for Industry, 3040 CRB-5-95-4 (February 14, 1997), aff’d, 48 Conn. App. 357 (1998). See also Landrette v. Bristol, 11 Conn. Workers’ Comp. Rev. Op. 149, 151, 1279 CRD-6-91-8 (August 19, 1993.) Moreover, in Khazzaka v. Torrington Company, 3966 CRB-5-99 -1 (March 2, 2000), we applied this premise to repetitive trauma claims, observing that “although a repetitive trauma injury ‘is not clearly defined and demarcated the same way a sudden accidental injury usually is,’ a period of repetitive trauma is as much a compensable event as a fall down a flight of stairs (the accidental injury in Landrette).” Khazzaka, supra, quoting Khazzaka v. Torrington Company, 3508 CRB-5-96-2 (May 26, 1998). Given that once an injury is accepted, a “commissioner [has] jurisdiction to hear all matters arising therefrom,” Hebert v. New Departure Hyatt Bearings, 4 Conn. Workers’ Comp. Rev. Op. 94, 95, 300 CRD-6-84 (June 12, 1987), no error, 14 Conn. App. 819 (1988) (per curiam), we held that, as long as the trier found the claimant’s hand injuries and carpal tunnel syndrome were caused by the same repetitive trauma that led to her accepted trigger thumb, the claimant’s failure to file a timely Form 30C for those injuries would not be fatal to her claim.

Having thus established that a claimant is not required to file a separate notice of claim for additional injuries arising from an original compensable incident, we can find no justification for imposing upon respondents the obligation to respond formally to an unnecessary notice of claim. To rule otherwise is to encourage a race to the courthouse, which would “[run] counter to the spirit of the Workmen’s Compensation Act, as well as to its literal provision that ‘no formal pleadings shall be required.’” Menzies, supra, at 344345, citing § 31-298 C.G.S.

The claimant also asserts the trial commissioner’s conclusion that “the real issue is whether on the merits the new injuries/claims result from the same repetitive trauma,” (emphasis in the original), Findings, ¶ 8, was inconsistent with his determinative finding that “[t]he claimant filed new and subsequent Form 30C’s, Notice of Claims, in regards to the new body parts that she felt arose out of the same repetitive trauma that caused her initial accepted injuries.” Findings, ¶ 4. Stating, rather obscurely, that “[t]here is a distinction in repetitive trauma cases that must be drawn by differentiating between injuries that result from the same type of repetitive trauma at work and injuries that derive from the same repetitive trauma injuries,” Appellant’s Brief, p. 24, the claimant asserts that “there are no facts in the record to support the proposition that the same repetitive trauma was responsible for both the 2004 injuries and the 2006 injuries.” Id. We disagree.

As previously noted herein, at the formal hearing of June 18, 2009, the claimant testified that prior to April 29, 2006, she continued to work in her usual occupation for the employer. Transcript, p. 38. It may thus be reasonably inferred that if the claimant’s job requirements were not significantly altered over the passage of time, the same repetitive trauma responsible for her injuries for the time period prior to October 18, 2004 was responsible for any injuries which occurred during the seventeen-month period between October 18, 2004 and May 11, 2006. We also note that many of the claimant’s proffered medical reports establish a causative link between the claimant’s chronic pain syndrome and depression and her original injuries.8

In addition, the claimant points out that Dr. Lewandowski “opined that the claimant suffered substantial aggravations in both 2004 and 2006…,” Appellant’s Brief, p. 34, which ostensibly provides the rationale for identifying the claimant’s additional conditions as new and distinct injuries. See also Claimant’s Exhibit O, p. 2. “Clearly, the May 1112, 2006 claim presented a new and separate compensable claim for benefits that explicitly required its own response under the terms of C.G.S. §§ 31-294c(b) and 31-294c(b)(1).” Appellant’s Brief, p. 34. As this board has previously observed, “the word ‘aggravation’ has become a term of art within the workers’ compensation lexicon.” Marroquin v. F. Monarca Masonry, 5310 CRB-4-07-12 (December 19, 2008), aff’d, 121 Conn. App. 400 (2010). “Rather than being akin to a recurrence under § 31-307b C.G.S., an ‘aggravation’ in legal parlance signifies the intervention of a proximate cause that plays a role in worsening the effects of a prior injury, with benefits payable by the employer for whom the claimant is working at the time of the aggravation.” Kelly v. Dunkin’ Donuts, 4621 CRB-4-03-2 (April 5, 2004). See also Epps v. Beiersdorf, Inc., 41 Conn. App. 430, 435 (1996).

However, in Marroquin, we also stated that “[w]hether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony.” Id., quoting Struckman v. Burns, 205 Conn. 542, 555 (1987). As such, we affirm the trial commissioner’s assessment that the proper line of inquiry in the instant matter is whether the claimant’s new conditions are the sequelae of her accepted compensable injury. The Motion to Prelude was never intended to function as a method of circumventing the evidentiary process. Moreover, despite the claimant’s assertions to the contrary, we do not find this assessment in any way violated the Supreme Court’s holding in Donahue v. Veridiem, Inc., 291 Conn. 537 (2009) (once a Motion to Preclude has been granted, respondents may not challenge the evidence put forward by a claimant in support of a prima facie case).

The claimant also disputes the trier’s finding relative to the payment of workers’ compensation benefits by the respondents to the claimant wherein the trier stated, “[t]he respondent, through its workers’ compensation carriers, paid to or on behalf of the claimant workers’ compensation benefits in regards to the accepted claims of 10/18/04 and 5/11/06.” Findings, ¶ 2. The claimant contends that the record contains no evidence to support finding that the respondent ever accepted the May 11-12, 2006 claim or paid any workers’ compensation payments to the claimant relative to that claim. The claimant also avers that the record contains no evidence that the respondent or its insurer ever attended hearings before the commissioner regarding the May 11-12, 2006 claim. While we agree that the trier’s language in this finding could perhaps have been a bit more precise, the imprecision constitutes, at worst, harmless error. In his very next finding, the trier stated, “[o]ver time issues ensued over return to work, medical treatment and additional injured body parts resulting in litigation and hearings before the commission.” Findings, ¶ 3. Moreover, the record clearly supports the inference that the claimant and employer, via its then-insurer Zurich America, had been engaged in ongoing litigation.

First, at the formal hearing of June 18, 2009, the trial commissioner agreed to take administrative notice of the “many” hearings which had taken place since May, 2006. June 18, 2009 Transcript, pp. 44-45. The trier also agreed to take administrative notice of all Form 36’s and Form 43’s in the file. Id., at 47. In addition, we note that the record contains a Psychiatric Respondents’ Medical Evaluation by Marc A. Rubenstein, M.D., dated January 19, 2006, which suggests that the respondents were already investigating the claimant’s allegations relative to her depressive disorder well before the second Form 30C was filed.

Second, the record contains a print-out indicating that during the period from November 8, 2004 to April 7, 2006 (during the alleged “second” period of repetitive trauma), Zurich America paid approximately $12,191.38 in medical benefits on the claimant’s behalf based on a date of injury of October 18, 2004.9 Respondents’ Exhibit 1. The print-out also indicates that the claimant received approximately $32,802.46 in temporary total benefits during the period from March 14, 2005 to January 22, 2006. Furthermore, the print-out demonstrates that Zurich America continued to advance additional medical and indemnity payments on behalf of the claimant until May 27, 2009 and June 12, 2009, respectively. The record clearly establishes that Zurich America paid workers’ compensation benefits to the claimant on behalf of the employer both before and after the filing of the second Form 30C relative to the May 11-12, 2006 date of injury. The fact that the payments to the claimant were made by Zurich America and not Travelers is immaterial, and we find the claimant’s attempt to “split hairs” between the two insurers disingenuous.

In addition, as respondents Reflexite Corporation and Travelers Property and Casualty Co., accurately point out in their brief, Connecticut public policy does not allow workers’ compensation recipients to receive double recoveries. See Paternostro v. Edward Coon Co., 217 Conn. 42, 47 (1991); Olmstead v. Lamphier, 93 Conn. 20, 23 (1918). Thus, the “claimant cannot be deemed to be temporarily totaled disabled [sic] more than once at a time nor could she have received more than the weekly TT benefits she was being paid during that time even if she seeks to assert she was TT for more than one injury claim.” Brief of Respondents’ Reflexite Corporation and Travelers Property & Casualty Company, p. 8. Clearly, the granting of a second Motion to Preclude would not have afforded the claimant any additional temporary total disability benefits.

As mentioned previously herein, the claimant filed a Motion to Correct which was denied in its entirety. Given that the proposed corrections would seem to reflect the claimant’s desire “to have the commissioner conform his findings to the [claimant’s] view of the facts,” D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003), we find no error in the trial commissioner’s denial of the Motion to Correct. “The [claimant] cannot expect the commissioner to substitute the [claimant’s] conclusions for his own.” Id.

Having found no error, the September 28, 2009 Finding and Dismissal of the Commissioner acting for the Sixth District is affirmed.

Commissioners Nancy E. Salerno and Jack R. Goldberg concur in this opinion.

1 Claimants generally file a “Form 30C,” which is entitled, “Notice of Claim for Compensation (Employee to Commissioner and to Employer).” BACK TO TEXT

2 The trial commissioner was referring to Menzies v. Fisher, 165 Conn. 338 (1973), Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102 (2008), and Donahue v. Veridiem, 291 Conn. 537 (2009). BACK TO TEXT

3 On appeal, the claimant is challenging the trial commissioner’s dismissal of the Motion to Preclude associated with the May 11-12, 2006 date of loss. BACK TO TEXT

4 Section 31-294c (b) C.G.S. (Rev. to 2003) states: “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

5 It should be noted that § 31-297(b) C.G.S. required the employer to file a disclaimer on or before the twentieth day after receiving a notice of claim. BACK TO TEXT

6 The intake note from that visit states, “44 Years Old F Patient Presents with Pain neck and upper back for 6 Month(s). The Onset is Gradual. Additional Symptoms or Pertinent History also involve worsening chronic upper back and neck pain; Previously relieved with botox injections....” Claimant’s Exhibit J. BACK TO TEXT

7 The Form 43 is entitled, “Notice to Compensation Commissioner and Employee of Intention to Contest Employee’s Right to Compensation Benefits.” BACK TO TEXT

8 See, e.g., Psychiatric Independent Medical Evaluation performed by Marc A. Rubenstein, M.D., on January 19, 2006, Claimant’s Exhibit L, p. 4; psychiatric report furnished by Mark Rubinstein, M.D., dated July 12, 2007, Claimant’s Exhibit M, p. 8; report of May 14, 2007, from Edgardo D. Lorenzo, M.D., Claimant’s Exhibit N, p. 2; correspondence from Wendy C. Lewandowski, M.D., on June 12, 2009 to claimant’s counsel wherein the doctor states that the claimant’s “history, medical records as well as her exam indicate that she suffers from neck strain, chronic pain syndrome with marked elements of Fibromyalgia as well as sleep apnea and depression as a result of her work related injuries.” Claimant’s Exhibit O, p. 2. BACK TO TEXT

9 We are somewhat puzzled by the claimant’s disparagement of the Zurich America print-out at trial on the basis that it provided only a “very vague itemization” and failed to link the payments made to a specific injury. June 18, 2009 Transcript, p. 43. Our review of the print-out revealed that it clearly delineated the items paid relative to the October 18, 2004 date of injury. BACK TO TEXT