Woodbury-Correa v. Reflexite Corp.

• Decision Date: 18 June 2019
• Docket Number: AC 39397
• Citation: 190 Conn.App. 623,212 A.3d 252
• Court: Connecticut Court of Appeals
• Parties: Marcella WOODBURY-CORREA v. REFLEXITE CORPORATION

190 Conn.App. 623

212 A.3d 252

Marcella WOODBURY-CORREA

v.REFLEXITE CORPORATION

AC 39397

Appellate Court of Connecticut.

Argued January 28, 2019

Officially released June 18, 2019

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

Colin J. Hoddinott, Windsor, CT, with whom, on the brief, was Deborah J. DelBarba, for the appellee (defendant).

DiPentima, C.J., and Elgo and Bright, Js.

BRIGHT, J.

Pursuant to statute (§ 31-294c [b] ), "an employer who fails to contest liability for an alleged injury ... on or before the twenty-eighth day after receiving a written notice of claim and who fails to commence payment for the alleged injury ... on or before such twenty-eighth day, shall be conclusively presumed to have accepted the compensability of the alleged injury ...." The plaintiff, Marcella Woodbury-Correa, appeals from the decision of the Compensation Review Board (board) affirming the decision of the Workers' Compensation Commissioner (commissioner), denying the plaintiff's motion to preclude¹ the defendant, her employer, Reflexite Corporation, from contesting liability for the repetitive trauma injuries claimed and noticed on her form 30C.² On appeal, the plaintiff claims that the board (1) exceeded its authority by making new factual findings that contradict the findings made by the commissioner, and (2) erred in affirming the commissioner's denial of the motion to preclude the defendant from contesting liability for the plaintiff's repetitive trauma injuries. We agree with both claims and reverse the decision of the board.

We begin with the underlying facts as found by the commissioner, as well as the procedural history and uncontested facts as revealed by the record. On April 17, 2009, the plaintiff had an existing employment relationship with the defendant. On that date, she filled out a form 30C claiming repetitive trauma injuries, the symptoms of which, she alleged, began in 2003. She sent the form 30C via certified mail on April 18, 2009, both to the defendant and to the Workers' Compensation Commission (commission). Both the commission and the defendant received the form 30C on April 20, 2009. The defendant did not file a proper and timely form 43 to dispute liability.³ On February 24, 2014, pursuant to General Statutes § 31-294c (b), the plaintiff filed a motion to preclude the defendant from contesting liability for her repetitive trauma injuries. Nearly one year later, on January 5, 2015, the defendant filed a written objection to the plaintiff's motion on the ground that it had filed a form 43 in a timely manner.⁴

The commissioner found that the commission file reflected that "there were never any claims for indemnity or medical benefits for the [plaintiff]," and that the "first claim for benefits was ... some five years after the claimed date of injury." The commissioner, thereafter, concluded that it was "impossible for the [defendant] to comply with the statutory requirements to issue any benefit payments during the [twenty-eight] day period following the filing of the [plaintiff's] form 30C as no benefits were claimed," and, on that basis, he denied the plaintiff's motion to preclude the defendant from contesting liability. The plaintiff filed a petition for review of the commissioner's decision with the board.⁵

A hearing was held before the board on March 18, 2016. In a June 22, 2016 written decision, the board affirmed the commissioner's decision denying the plaintiff's motion to preclude the defendant from contesting liability, specifically agreeing, in part, that the defendant was not able to file a timely form 43 due to "impossibility." This appeal followed. Additional facts will be set forth as necessary.

Before reviewing the plaintiff's claims, we set forth the applicable standard of review. "The commissioner has the power and duty, as the trier of fact, to determine the facts ... and [n]either the ... board nor this court has the power to retry facts .... The conclusions drawn by [the commissioner] from the facts found [also] 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 .... [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 review 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 when the construction of a statute ... has not previously been subjected to judicial scrutiny [or to] ... a governmental agency's time-tested interpretation .... Furthermore, [i]t is well established that, in resolving issues of statutory construction under the [Workers' Compensation Act (act), General Statutes § 31-275 et seq. ], we are mindful that the act indisputably is a remedial statute that should be construed generously to accomplish its purpose .... The humanitarian and remedial purposes of the act counsel against an overly narrow construction that unduly limits eligibility for workers' compensation .... Accordingly, [i]n construing workers' compensation law, we must resolve statutory ambiguities or lacunae in a manner that will further the remedial purpose of the act .... [T]he purposes of the act itself are best served by allowing the remedial legislation a reasonable sphere of operation considering those purposes ....

"Our scope of review of the actions of the board is similarly limited .... The role of this court is to determine whether the review [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." (Citations omitted; internal quotation marks omitted.) Wiblyi v. McDonald's Corp. , 168 Conn. App. 77, 84–86, 144 A.3d 1075 (2016).

"In deciding a motion to preclude, the commissioner must engage [in] a two part inquiry. First, he must determine whether the employee's notice of claim is adequate on its face. See General Statutes § 31-294c (a). Second, he must decide whether the employer failed to comply with § 31-294c either by filing a notice to contest the claim or by commencing payment on that claim within twenty-eight days of the notice of claim. See General Statutes § 31-294c (b).⁶ If the notice of claim is adequate but the employer fails to comply with the statute, then the motion to preclude must be granted." (Footnote altered; internal quotation marks omitted.) Id., at 86–88, 144 A.3d 1075.

I

The plaintiff claims that the board exceeded its authority by making a new factual finding concerning the form 43 that contradicts the finding made by the commissioner, despite the fact that the commissioner's finding had not been challenged on appeal to the board. She argues that the board acted improperly "when it liberally construed the unambiguous factual finding of the commissioner that ‘a proper and timely form 43 was not filed by the [defendant]’ to mean that ‘the form 43 that was filed was not "proper" [because] it was not "timely." ’ The board not only inserted a new factual finding into the commissioner's decision, but [it] deleted the commissioner's original finding that the defendant failed to properly serve the commission with a form 43 in accordance with its statutory mandate." We agree.

In his findings, the commissioner specifically found that "[e]vidence produced at the formal hearing as well as the contents of the commission's file indicate that a proper and timely form 43 was not filed by the [defendant]." The commissioner cited, as support for this finding, several exhibits. The commissioner was not requested to correct this finding, and neither party challenged this finding on appeal to the board. Moreover, although the finding was not preserved for review, an examination of the exhibits cited by the commissioner readily confirms that this finding was not clearly erroneous. The plaintiff properly filed a form 30C claiming repetitive trauma injuries, as found by the commissioner, which was received both by the board and by the defendant on April 20, 2009. On May 5, 2009, the defendant sent its form 43, via certified mail, to the plaintiff's attorney, as evidenced by the return receipt. The defendant did not serve the commission with its form 43 at that time. Instead, on July 24, 2009, despite the requirements of General Statutes § 31-321⁷ and form 43,⁸ the defendant sent, via facsimile transmission , its form 43 to the commission.

The board, in its written decision, attacked the argument of the plaintiff's attorney that the "commissioner found that the [defendant] never filed a form 43 with the ... commission as required by the act. Therefore, statutory preclusion must lie." (Internal quotation marks omitted.) The board opined that the statement of the plaintiff's attorney was "unequivocally factually incorrect [in that the defendant] did file a form 43 contesting the claim which was received by the commission on July 24, 2009, a date more than [twenty-eight] days after the claimant filed her form 30C seeking benefits but well within the one year safe harbor period to contest the extent of disability .... The trial commissioner in [his] findings ... found that the [defendant] had not filed ‘a proper and timely form 43.’ ... We suggest that the trial commissioner inartfully expressed ... in [his] findings ... that the form 43 that was filed was not ‘proper’ as it was not ‘timely.’ To suggest in pleadings before this commission, and indeed again at oral argument before this tribunal, that a form 43 had never been filed by the [defendant], or that the...