Donahue v. Veridiem, Inc., No. 18237.

• Decision Date: 19 May 2009
• Docket Number: No. 18237.
• Citation: 970 A.2d 630,291 Conn. 537
• Court: Connecticut Supreme Court
• Parties: Maura DONAHUE v. VERIDIEM, INC., et al.

970 A.2d 630

291 Conn. 537

Maura DONAHUE v. VERIDIEM, INC., et al.

No. 18237.

Supreme Court of Connecticut.

Argued January 6, 2009.

Decided May 19, 2009.

Neil Johnson, Hartford, for the appellant (plaintiff).

Dominick C. Statile, Glastonbury, with whom, on the brief, were Marie Gallo-Hall and Jean McNulty, for the appellees (defendants).

ROGERS, C.J., and NORCOTT, KATZ, PALMER and ZARELLA, Js.

KATZ, J.

In Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102, 128-29, 942 A.2d 396 (2008), this court concluded that an employer deemed "conclusively presumed to have accepted the compensability of the alleged injury" under General Statutes § 31-294c(b),¹ because of its failure either to contest liability or to commence payment of compensation within the prescribed time period under the statute, is precluded from contesting both the compensability and the extent of disability arising from the alleged injury. The appeal in the present case raises the issue of whether an employer subject to the conclusive presumption is precluded from challenging the claimant's proof through cross-examination and submission of a written argument. The plaintiff, Maura Donahue, appeals from the decision of the compensation review board (board) affirming the decision of the workers' compensation commissioner (commissioner) denying the plaintiff's claim for compensation for medical care and permanent partial disability for her back injury. In a decision issued prior to Harpaz, the commissioner had concluded that, although the plaintiff's back injury is conclusively presumed to be compensable because the named defendant,² Veridiem, Inc., failed to file a timely notice contesting the plaintiff's claim, the plaintiff's evidence that this compensable injury had caused her need for the medical care and her disability for which she sought compensation was not credible. The plaintiff contends that the board's decision must be reversed because the commissioner improperly allowed the defendant to contest her claim by challenging her proof. We agree with the plaintiff. We therefore reverse the board's decision.

The commissioner's decision and the record reveal the following undisputed facts and procedural history. The plaintiff commenced employment with the defendant on January 3, 2002. On January 16, 2003, the workers' compensation commission (commission) received a notice of claim from the plaintiff alleging that she had sustained an injury on January 17, 2002, arising out of and in the course of her employment. On January 21, 2003, the defendant received a written notice of claim alleging that, on January 17, 2002, the plaintiff had sustained an injury to her "lower back/ruptured disk" when she fell on a wet floor at the defendant's corporate office. The defendant filed a notice contesting liability, which the commission received on February 24, 2003.

At the beginning of the formal hearing on her claim, held on October 21, 2005,³ the plaintiff asserted that she intended to file a notice to preclude the defendant from contesting liability because its notice to contest her claim had been filed beyond the twenty-eight day period prescribed under § 31-294c(b). See footnote 1 of this opinion. Without objection from the plaintiff, the commissioner proceeded with the hearing. The plaintiff was the only witness to testify, subject to the defendant's cross-examination. The only exhibits put into evidence were those submitted by the plaintiff, principal among those being medical records and bills, including hospital bills for a December, 2002 back surgery.

On November 14, 2005, the plaintiff filed a motion to preclude the defendant from contesting liability. That day, the commissioner held a "[p]re-[f]ormal" hearing on the motion and the defendant's objection thereto and added the issue of preclusion to those previously raised for consideration at the formal hearing. The defendant thereafter filed a fifteen page brief with the commission contending that the plaintiff's claim should be denied for several reasons, including that "[f]actually, the [plaintiff] has not proven that her back problems for which she ultimately underwent surgery arose out of and in the course of her employment," and "the [plaintiff] has not established a prima facie medical case" to establish the causal link between her employment and her injury.

On December 19, 2005, the plaintiff submitted a motion to add additional evidence to the record that she had received that day, specifically, a letter from Inam U. Kureshi, the neurosurgeon who had performed the plaintiff's back surgery. Kureshi opined in the letter that, after her December 3, 2002 lumbar discectomy, the plaintiff had a 6.67 percent permanent partial disability of the spine and that, within reasonable medical probability, this injury had been caused by the January 17, 2002 fall at work.⁴ Over the defendant's objection, the commissioner thereafter permitted the plaintiff to add Kureshi's letter to the record.

In her decision filed on April 3, 2006, the commissioner framed the case as raising three issues: (1) "Whether the [plaintiff's] motion to preclude under § 31-294c(b) should be granted"; (2) "Whether the [plaintiff's] January 17, 2002 back injury arose out of and in the course of her employment under [General Statutes] § 31-275"; and (3) "If found compensable, what benefits are due to the [plaintiff]?" The commissioner concluded that the motion to preclude should be granted and, therefore, that the plaintiff's January 17, 2002 back claim was compensable. The commissioner concluded however, that the plaintiff's claim for reimbursement of medical bills and for permanent partial disability benefits should be denied. The commissioner found the plaintiff's testimony not to be credible or persuasive with respect to the extent of her disability. The commissioner similarly found Kureshi's letter "[not] to be credible or persuasive relating [the plaintiff's] January, 2002 injury to her need for medical care and surgery or the 6.67 [percent] permanent partial disability of the back."

In support of her decision, the commissioner cited the following evidence. The plaintiff did not fill out an accident report or file a notice of injury regarding the January, 2002 incident. The plaintiff was not sore on the day of the fall, but felt some soreness and noticed bruising on the back side of her hip and lower thigh the following day. She did not experience any problems as a result of the fall until the following month. The plaintiff thereafter sought treatment from her general practitioner for complaints of fatigue and muscle soreness, but never complained of back problems. Her general practitioner's reports from February, March and April of 2002, made no reference to a work incident. On July 26, 2002, the plaintiff received a magnetic resonance imaging (MRI) that showed disc protrusions at multiple levels. A November 27, 2002 report from Hartford Hospital indicated that the plaintiff had alleged ongoing lower back pain since July, 2002, and did not indicate any reference to a work injury.⁵ In reliance on the foregoing evidence, the commissioner denied the plaintiff's claim for compensation for medical care and disability.

The plaintiff appealed from the commissioner's decision to the board, relying on the Appellate Court's holding in DeAlmeida v. M.C.M. Stamping Corp., 29 Conn.App. 441, 615 A.2d 1066 (1992), in support of her claim that the commissioner's decision had failed to give the finding of preclusion its full force and effect as to liability and causation. The board rejected the plaintiff's claim on two grounds. First, it concluded that the revision of § 31-294c (b) at issue in DeAlmeida had been amended in 1993 "to specifically permit a respondent to challenge the extent of disability."

Second, the board noted that, even predating DeAlmeida, "the burden has always been on the claimant to establish [that] her disability is linked to the compensable injury.... If the trier is not persuaded by the claimant's [medical] evidence, there is nothing that this board can do to override that decision on appeal." (Citations omitted; internal quotation marks omitted.) The board concluded that the present case was legally indistinguishable from two of its prior cases rejecting a similar claim, the most recent being Harpaz v. Laidlaw Education Services, No. 5040, CRB 7-05-12 (December 11, 2006). Accordingly, the board affirmed the commissioner's decision.

Pursuant to General Statutes § 31-301b, the plaintiff appealed from the board's decision to the Appellate Court. While that appeal was pending, this court issued its decision in Harpaz v. Laidlaw Transit, Inc., supra, 286 Conn. at 102, 942 A.2d 396. In that case, we concluded that the 1993 amendment to § 31-294c(b) was intended only to remedy a problem affecting employers that had complied with the statutory limitations by timely commencing payment of a claim, and, as a result, provided an extended time period to allow such employers to contest either compensability or the extent of disability. Id., at 127-29, 942 A.2d 396. We further concluded that § 31-294c(b) as amended, when read contextually and in its entirety, as well as in connection with the legislative history and genealogy of the statute, did not intend to change the status quo for employers that had not complied with the statutory time limits for either commencing payment or contesting liability of the claim. Id., at 129-30, 942 A.2d 396. Thus, consistent with the past practice for the preceding twenty-seven years, we concluded that employers that had not complied with either predicate were precluded from challenging both the compensability of the injury and the extent of disability. Id., at 128-29, 942 A.2d 396. We underscored, however, that preclusion did not relieve claimants of their obligation to prove their claim by competent evidence. Id., at 131, 942 A.2d 396. We summarized the defect in the proceeding...