Callender v. Reflexite Corp., No. 32832.

• Decision Date: 07 August 2012
• Docket Number: No. 32832.
• Citation: 49 A.3d 211,137 Conn.App. 324
• Court: Connecticut Court of Appeals
• Parties: Robin K. CALLENDER v. REFLEXITE CORPORATION et al.

137 Conn.App. 324

49 A.3d 211

Robin K. CALLENDER

v.REFLEXITE CORPORATION et al.

No. 32832.

Appellate Court of Connecticut.

Argued Feb. 6, 2012.

Decided Aug. 7, 2012.

Jennifer B. Levine, with whom was Harvey L. Levine, New Britain, for the appellant (plaintiff).

Deborah J. Delbarba, with whom was Michael A. Burton, Waterford, for the appellees (defendants).

DIPENTIMA, C.J., SHELDON and FLYNN, Js.

SHELDON, J.

This case involves a dispute between an employer, the defendant ¹ Reflexite Corporation, and its employee, the plaintiff Robin K. Callender, as to whether General Statutes § 31–294c invariably requires an employer, to preserve its right to contest an employee's claim for workers' compensation benefits on the merits, either to file a form 43, notice to contest the claim (notice to contest), or to commence payment on the claim within twenty-eight days of the filing of the notice of claim. Here, the plaintiff claims ² that the workers' compensation review board (board) erred in upholding the decision of a trial commissioner (commissioner) to deny her motion to preclude the defendant from contesting her claim for benefits dated May [137 Conn.App. 327]11–12, 2006 (May, 2006 claim) despite the defendant's failure either to file a notice to contest that claim or to commence payment thereon within twenty-eight days of the notice of claim, in alleged violation of § 31–294c. The defendant argues that the board's decision should be upheld because, on the facts of this case, the plaintiff's May, 2006 claim was not a new claim but merely the unnecessary reassertion of an earlier claim for the same injuries as to which it already had filed a timely notice to contest and on which it already had begun to make payments. The parties' dispute arises against the background of the following historical and procedural facts.

The defendant employed the plaintiff for nearly twenty years. During that time, she allegedly sustained a number of work-related injuries, for which she has made multiple claims for workers' compensation benefits, two of which are at issue in the present appeal. On October 12, 2005, the plaintiff filed a notice of claim with respect to injuries she claimed to have suffered due to repetitive workplace trauma between 1987 and 2004. In that notice of claim (October, 2004 claim), she alleged that, as a result of such repetitive workplace trauma, she had developed a painful condition that affected her “neck, [right] shoulder, [right] arm, [right] hand, [left] shoulder, [left] hand [and] lower back.” The plaintiff listed the date of her injury as October 18, 2004. The defendant responded to this claim by filing a timely form 43 and by making timely payments on that claim in accordance with § 31–294c. ³

Thereafter, the plaintiff continued to work for the defendant. On April 29, 2006, complaining of neck pain and back spasms, the plaintiff was treated in the emergency department of New Britain General Hospital. Although the plaintiff returned to work for the defendant on May 11, 2006, her last day of work was the overnight shift, which began on that day.

On May 7, 2007, the plaintiff filed a new notice of claim, in which she alleged that she had sustained repetitive trauma injuries to her “[r]ight and left upper limbs, neck, upper and lower back, both shoulders and both hands and elbows,” in the period from 1987 until her last day of work. In addition, in a “Schedule A” attached to her new notice of claim, she alleged that the repetitive trauma of which she complained had caused injury to her brain, which manifested itself in the forms of chronic pain and depression. The defendant never filed a notice to contest liability with respect to the plaintiff's May, 2006 claim, nor did it commence making payments to the plaintiff on that claim. It did, however, continue to make payments to the plaintiff on her October, 2004 claim.

As to its alleged failure to commence payment on the May, 2006 claim, the defendant contends that that claim did not allege a new and separate injury from that alleged in her October, 2004 claim, and thus that its continuation of payments to the plaintiff on her October, 2004 claim was sufficient to respond and to preserve its right to contest on the merits her May, 2006 claim as well. It asserts, moreover, that any additional payment to the plaintiff on her May, 2006 claim would afford the plaintiff a double recovery for the same injury in violation of Connecticut's well settled public policy disfavoring double recovery of workers' compensation benefits.

On June 2, 2009, the plaintiff filed an amended motion to preclude the defendant from contesting either the compensability of the injuries described in her May, [137 Conn.App. 329]2006 claim or the extent of her disability arising from such injuries.⁴ The motion alleged that the defendant had not complied with § 31–294c (b) with respect to her May, 2006 claim because it had failed either to issue a timely notice to contest that claim or, in the alternative, to commence making payments on that claim within twenty-eight days of the filing of the plaintiff's notice of claim.

On June 18, 2009, the parties attended a hearing before the commissioner on the plaintiff's motion to preclude. At the hearing, the defendant filed a joint motion to bifurcate on behalf of all defendants, seeking to have the motion to preclude heard and decided before any compensability issues were addressed. After granting the motion to bifurcate, the commissioner heard argument and dismissed the plaintiff's motion to preclude.

In dismissing the motion to preclude, the commissioner made the following findings of fact. The plaintiff had sustained compensable injuries as a result of repetitive trauma she experienced while working for the defendant and the defendant had paid her benefits for such injuries under her “accepted claims” of October, 2004 and May, 2006. Over time, issues arose with respect to the plaintiff's capacity to return to work, medical treatment and additional injuries, which resulted in litigation and various hearings before the commission. The plaintiff filed her May, 2006 claim based on a new injury that arose out of the same repetitive trauma that had caused the injuries cited in her October, 2004 claim. On that basis, the commissioner dismissed the motion to preclude, stating that “[t]he result the [plaintiff] is seeking is contrary to the letter and spirit of [General Statutes §] 31–294[c], Menzies [ v. Fisher, 165 Conn. 338, 334 A.2d 452 (1973) ],⁵Harpaz [ v. Laidlaw Transit, Inc., 286 Conn. 102, 942 A.2d 396 (2008) ],⁶ and Donahue [ v. Veridiem, Inc., 291 Conn. 537, 970 A.2d 630 (2009) ] ⁷ line of cases. Motions to preclude are to be granted whenever a [defendant] is less than vigilant and diligent in responding to a newly filed claim. That did not happen here.” The plaintiff later filed a motion to correct some of the commissioner's factual findings, but the motion was denied in its entirety. The plaintiff then filed a motion for articulation, which also was denied. Thereafter, the plaintiff appealed to the board.

The board, in affirming the commissioner's decision, determined that the injuries alleged in the plaintiff's May, 2006 claim were causally related to the injuries alleged in her October, 2004 claim and, thus, that they were “additional injuries arising from an original compensable incident....” ⁸ It therefore held that, because “a claimant is not required to file a separate notice of claim for additional injuries arising from an original compensable incident,” there was no justification for requiring the defendant to file a formal response to the May, 2006 claim or to commence payment thereon in order to preserve its right to contest the merits of that claim.

On appeal, the plaintiff claims that the board erred in affirming the commissioner's ruling that an employer is not required to comply with the statutory mandates of § 31–294c (b) when its employee files a repetitive trauma claim with a date of injury that is later than that of an earlier repetitive trauma claim.⁹ We agree and accordingly reverse the judgment of the board.

We first set forth our standard of review applicable to workers' compensation appeals. “It is the power and the duty of the commissioner, as the trier of fact, to determine the facts.” Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988). “[T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses....” Keenan v. Union Camp Corp., 49 Conn.App. 280, 286, 714 A.2d 60 (1998). “[W]hen a decision of a commissioner is appealed to the review division, the review division is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts.” (Internal quotation marks omitted.) Ricigliano v. J.J. Ryan Corp., 53 Conn.App. 158, 160, 728 A.2d 1161 (1999), appeal dismissed, 252 Conn. 404, 746 A.2d 787 (2000). Our scope of review of the actions of the board is similarly limited. See id., at 161, 728 A.2d 1161. “The decision of the review [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Emphasis added.) DeBarros v. Singleton, 21 Conn.App. 107, 110, 572 A.2d 69, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990).

Our Supreme Court has reviewed § 31–294c and determined that, by its adoption, our legislature intended to: “(1) include repetitive trauma injuries among those injuries compensable under the [workers' compensation] act; ¹⁰ (2) require claimants to file notices of claim, written in simple language,¹¹ in order to maintain proceedings under the act; ¹² and (3) allow claimants who have filed such notices of claim to preclude their employers from contesting liability when their employers fail to contest liability properly within twenty-eight days of receiving the notice of claim.” ¹³Russell v. Mystic Seaport Museum, Inc.,...