Britto v. Bimbo Foods, Inc.

• Citation: 217 Conn.App. 134,287 A.3d 1140
• Decision Date: 27 December 2022
• Docket Number: AC 44844
• Parties: John J. BRITTO v. BIMBO FOODS, INC., et al.
• Court: Appellate Court of Connecticut

217 Conn.App. 134

287 A.3d 1140

John J. BRITTO

v.BIMBO FOODS, INC., et al.

AC 44844

Appellate Court of Connecticut.

Argued October 11, 2022

Officially Released December 27, 2022

David V. DeRosa, Naugatuck, with whom, on the brief, was Victor Ferrante, Bridgeport, for the appellant (plaintiff).

Clayton J. Quinn, Milford, with whom, on the brief, was Anna C. Borea, for the appellee (named defendant).

Moll, Seeley and Lavine, Js.

MOLL, J.

The plaintiff, John J. Britto, appeals from the decision of the Compensation Review Board (board) affirming the decision of the Workers’ Compensation Commissioner for the Fourth District (commissioner)¹ denying the plaintiff's motion to preclude the named defendant, Bimbo Foods, Inc.,² from contesting liability as to his claimed bilateral knee injury stemming from repetitive trauma.³ On appeal, the plaintiff claims that the board improperly affirmed the commissioner's denial of his motion to preclude, which was predicated on the commissioner's determination that the defendant did not receive the notice of claim that the plaintiff sent to it by certified mail. We disagree and, accordingly, affirm the decision of the board.

The following facts, as found by the commissioner and which are not in dispute, and procedural history are relevant to this appeal. On December 12, 2017, the plaintiff filed a form 30C⁴ with the Workers’ Compensation Commission for the Fourth District (commission), alleging that he had sustained a compensable bilateral knee injury stemming from repetitive trauma⁵ during the course of his employment with the defendant.⁶ On the same day, the plaintiff's counsel sent, by certified mail, a copy of the form 30C to the defendant. The envelope with the form 30C enclosed was addressed to the defendant at "328 Selleck Street #A" in Stamford, on which premises is a building with "a very noticeable sign ... which reads ‘Office (with an arrow pointing to the left) 328 Selleck Street A.’ " On January 10, 2018, the envelope was returned to the plaintiff with a stamped marking that read, inter alia, "[u]ndeliverable as addressed [and] [u]nable to forward." The envelope had additional markings indicating that the mail carrier had attempted delivery on three separate occasions in December, 2017. On January 18, 2018, during an informal hearing held in a different workers’ compensation proceeding,⁷ the plaintiff's counsel personally provided to the defendant's counsel a copy of the form 30C. The same day, the defendant's counsel filed a form 43⁸ denying the bilateral knee injury claim.

On December 10, 2018, pursuant to General Statutes § 31-294c (b), the plaintiff filed a motion to preclude the defendant from contesting liability as to the bilateral knee injury claim.⁹ The plaintiff contended that the defendant "never accepted the certified mail of the form 30C," and that the form 43 filed by the defendant on January 18, 2018, was untimely. The commissioner held formal hearings on the motion to preclude on April 29, September 16, and October 28, 2019, during which the commissioner heard testimony from multiple witnesses and admitted several exhibits, in full, into the record, including the envelope containing the form 30C that was returned to the plaintiff.

On May 21, 2020, the commissioner denied the plaintiff's motion to preclude. The commissioner stated that she "[did] not accept the [plaintiff's] position in this matter. ... [T]he form 30C alleging bilateral knee repetitive trauma was not delivered [by certified mail] to the [defendant]. Although the certified envelope had the correct address for the [defendant], and despite the clear and bold signage on the building indicating where the office for the [defendant] was located, for reasons unknown, the mail carrier failed to deliver the notice to the [defendant]. The form 30C was returned to the [plaintiff] on January 10, 2018. The outside of the envelope was marked ‘[u]ndeliverable.’ Therefore, the [defendant] did not receive proper notice when the [plaintiff] initially filed the claim in December of 2017." The commissioner further determined that the defendant filed a timely form 43 denying the claim on January 18, 2018, the same day that the plaintiff's counsel personally provided to the defendant's counsel a copy of the form 30C. On June 18, 2020, the plaintiff filed a motion to correct, which the commissioner denied on July 10, 2020. On July 29, 2020, the plaintiff filed a petition for review with the board.

On appeal to the board, the plaintiff asserted that he served the defendant with the form 30C in accordance with General Statutes § 31-321 by sending, by certified mail, the form 30C to the defendant's place of business, such that the commissioner should have drawn the inference that the form 30C was delivered to the defendant but the defendant failed to accept it. Under such circumstances, the plaintiff posited, the form 43 filed by the defendant on January 18, 2018, was untimely. In reply, the defendant argued, inter alia, that it was not served with the form 30C by certified mail, as the commissioner's findings reflected that the form 30C was returned to the plaintiff because it was " ‘[u]ndeliverable as addressed ....’ " Moreover, the defendant contended that there was no evidence in the record indicating that it had refused to accept service of the form 30C.

On July 2, 2021, the board affirmed the commissioner's denial of the plaintiff's motion to preclude. The board concluded that the commissioner's determination that the defendant did not receive proper notice of the form 30C until January 18, 2018, when the form 30C was provided, in person, to the defendant's counsel, was supported by the commissioner's finding that the mail carrier never delivered the form 30C sent by certified mail to the defendant, a finding that the board determined to be supported by the record. As for the plaintiff's assertion that the commissioner should have inferred delivery of the form 30C because it was sent via certified mail in accordance with § 31-321, the board noted that the commissioner expressly found, on the basis of the evidence adduced at the formal hearings, that the form 30C never was delivered to the defendant by certified mail. The board opined in a footnote that "[t]o assume that a properly addressed and mailed piece of mail was received may make sense in some cases, but not in a case such as this when we know for a fact [that] it was returned to the [plaintiff] as undelivered." The board further stated that, "in the absence of further credited evidence," the envelope with the form 30C enclosed that was returned to the plaintiff suggested that the form 30C had not been presented to and refused by a responsible party acting on the defendant's behalf. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the plaintiff claims that, in affirming the commissioner's denial of his motion to preclude, the board improperly sustained the commissioner's determination that the defendant did not receive the form 30C that the plaintiff sent to it by certified mail. The plaintiff maintains that he satisfied the statutory requirements of §§ 31-294c and 31-321 by sending, via certified mail, the form 30C to the defendant's place of business, and that the commissioner and the board incorrectly imposed an additional requirement on him to demonstrate that the form 30C was returned as a result of the defendant's refusal to accept it. Relying on the doctrine known as the mailbox rule,¹⁰ the plaintiff contends that delivery of the form 30C should have been presumed and that the burden should have fallen on the defendant to establish that it did not receive the form 30C. The plaintiff further contends that the commissioner's findings were not supported by competent evidence. We reject these claims.

We begin by setting forth the governing standard of review and relevant legal principles. "The standard of review in workers’ compensation appeals is well established. When the decision of a commissioner is appealed to the board, the board is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. ... The commissioner has the power and duty, as the trier of fact, to determine the facts. ... The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. ...

"[O]n review of the commissioner's findings, the [board] does not retry the facts nor hear evidence. It considers no evidence other than that certified to it by the commissioner, and then for the limited purpose of determining whether or not the finding should be corrected, or whether there was any evidence to support in law the conclusions reached. It cannot review the conclusions of the commissioner when these depend upon the weight of the evidence and the credibility of witnesses. ... Our scope of review of the actions of the board is similarly limited. ... The role of this court is to determine whether the ... [board's] decision results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them." (Internal quotation marks omitted.)

Arrico v. Board of Education , 212 Conn. App. 1, 18, 274 A.3d 148 (2022).

"[Moreover, it] is well established that [a]lthough not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and the board. ... Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. ... We have determined, therefore, that the traditional deference accorded to an agency's interpretation of a statutory term is unwarranted...