Salerno v. Lowe's Home Improvement Ctr.

• Decision Date: 14 July 2020
• Docket Number: AC 42344
• Citation: 235 A.3d 537
• Court: Connecticut Court of Appeals
• Parties: Gary SALERNO v. LOWE'S HOME IMPROVEMENT CENTER et al.

235 A.3d 537

Gary SALERNO

v.LOWE'S HOME IMPROVEMENT CENTER et al.

AC 42344

Appellate Court of Connecticut.

Argued January 13, 2020

Officially released July 14, 2020

Paul M. Shearer, for the appellants (defendants).

Robert C. Lubus, Jr., with whom, on the brief, were Richard O. LaBrecque, Waterbury, and Donald J. Trella, for the appellee (plaintiff).

Alvord, Elgo and Eveleigh, Js.

ELGO, J.

The defendant employer, Lowe's Home Improvement Center,¹ appeals from the decision of the Compensation Review Board (board) affirming the decision of the Workers’ Compensation Commissioner (commissioner), who concluded that the defendant was precluded under General Statutes § 31-294c (b) from contesting both liability for, and the extent of, repetitive trauma injuries allegedly sustained by the plaintiff, Gary Salerno. On appeal, the defendant claims that the board improperly concluded that the present case did not fall within the narrow exception to the preclusion provision of § 31-294c (b) recognized by this court in Dubrosky v. Boehringer Ingelheim Corp ., 145 Conn. App. 261, 76 A.3d 657, cert. denied, 310 Conn. 935, 78 A.3d 859 (2013). We disagree and, accordingly, affirm the decision of the board.

Relevant to this appeal are the following facts found by the commissioner. From March 3, 2006 to December 19, 2012, the plaintiff was employed by the defendant as a sales specialist in its plumbing department, which required him to lift heavy objects.² On November 27, 2013, the plaintiff completed a form 30C,³ in which he sought compensation for a repetitive trauma injury to his lumbar spine that he allegedly sustained as a result of "lifting" items in the course of his employment with the defendant. The Workers’ Compensation Commission received the plaintiff's notice of his claim for compensation on November 29, 2013; the defendant received it prior to December 3, 2013. Over the next eighteen months, the defendant did not file any response to the plaintiff's notice. In addition, the commissioner expressly found that the defendant "did not pay the [plaintiff] for any of his lost time from work or for any of the medical treatment related to the repetitive trauma claim [for compensation]."

On June 18, 2015, the defendant filed a belated form 43,⁴ in which it contested liability for the plaintiff's injuries.⁵ In response, the plaintiff filed a motion to preclude pursuant to § 31-294c (b) on July 13, 2015. A formal hearing was held before the commissioner on February 11, 2016. In his subsequent decision, the commissioner found that the plaintiff properly had filed a notice of his claim for compensation. The commissioner further found that the defendant "neither timely disclaimed nor paid the [plaintiff's] indemnity or medical costs in order to avail itself of the safe harbor provision [of] § 31-294c."⁶ On that basis, the commissioner granted the plaintiff's motion to preclude.

The defendant then filed a petition for review with the board, claiming that the present case fell within the narrow exception to the preclusion provision of § 31-294c (b) articulated by this court in Dubrosky v. Boehringer Ingelheim Corp ., supra, 145 Conn. App. 261, 76 A.3d 657.⁷ The board disagreed and affirmed the decision of the commissioner, and this appeal followed.

On appeal, the defendant challenges the board's conclusion that the Dubrosky exception does not apply in the present case. Specifically, it claims that "[t]he plaintiff's failure to present a claim for medical or indemnity benefits within the twenty-eight day statutory period following the filing of the form 30C made it impossible for the [defendant] to avail [itself] of the one year safe harbor" of § 31-294c (b). For that reason, the defendant submits that "[t]he facts in this case are indistinguishable from the facts in Dubrosky ." We disagree.

In Dubrosky , the defendant employer accepted that an incident had occurred but sought to maintain its ability to contest the extent of the plaintiff's disability. Dubrosky v. Boehringer Ingelheim Corp ., supra, 145 Conn. App. at 266, 76 A.3d 657. That employer also paid all medical bills submitted to it by the plaintiff's physician. Id., 265, 76 A.3d 657. Given those unique circumstances, this court concluded "that, under the facts of this case , it was not reasonably practical for the board to require the defendant to have complied with § 31-294c (b) ...." (Emphasis added.) Id., 267, 76 A.3d 657. As we recently explained, "[t]his court held [in Dubrosky ] that, under such circumstances, when a defendant employer does not challenge the claim of a work-related injury, but challenges only the extent of the plaintiff's disability, strict compliance with the twenty-eight day statutory time frame to begin payment of benefits will be excused when it is impossible for the [employer] to comply." Woodbury-Correa v. Reflexite Corp ., 190 Conn. App. 623, 638, 212 A.3d 252 (2019), citing Dubrosky v. Boehringer Ingelheim Corp ., supra, 273–75, 76 A.3d 657.

Unlike the defendant employer in Dubrosky , the defendant here has not accepted liability for the plaintiff's injuries. Rather, it filed a belated form 43 in which it denied liability. Moreover, as the commissioner found in his decision, the defendant "did not pay the [plaintiff] for any of his lost time from work or for any of the medical treatment related to the repetitive trauma claim [for compensation]." Contrary to the contention of the defendant, this case is patently distinguishable from Dubrosky . Accordingly, the board properly determined that the defendant was precluded from contesting its liability for the plaintiff's injuries. See Woodbury-Correa v. Reflexite Corp ., supra, 190 Conn. App. at 639, 212 A.3d 252.

To the extent that the defendant invites us to extend the narrow exception to the preclusion provision articulated in Dubrosky , we decline to do so for the reasons set forth in Dominguez v. New York Sports Club , 198 Conn. App. 854, 234 A.3d 1017 (2020), which also was released today. In so doing, we reiterate that "[i]t is not the court's role to acknowledge an exclusion when the legislature painstakingly has created such a complete statute. We consistently have acknowledged that the act is an intricate and comprehensive statutory scheme. ... The complex nature of the workers’ compensation system requires that policy determinations should be left to the legislature, not the judiciary." (Citations omitted; internal quotation marks omitted.) McCullough v. Swan Engraving, Inc ., 320 Conn. 299, 310, 130 A.3d 231 (2016) ; see also Wiblyi v. McDonald's Corp ., 168 Conn. App. 92, 107, 144 A.3d 530 (2016) ("we will not recognize, in the absence of legislative action" new exception to § 31-294c (b) ); Izikson v. Protein Science Corp ., 156 Conn. App. 700, 713, 115 A.3d 55 (2015) (expressly declining "to carve out another exception" to statutory scheme embodied in § 31-294c "because we believe that the legislature, rather than this court, is the proper forum through which to create" additional exceptions to that statute).

The decision of the Compensation Review Board is affirmed.

In this opinion the other judges concurred.

1 Both the defendant employer, Lowe's Home Improvement Center, and its insurer, Sedgwick CMS, Inc., were named as defendants in this matter. For...