137 Conn. App. 324
Conn. App. Ct.2012Background
- Reflexite Corp. employed Callender for nearly twenty years and she filed multiple workers’ compensation claims for repetitive trauma injuries (1987–2004; 2004 claim; 2006 claim).
- In October 2004, Callender filed a notice of claim for repetitive trauma with injury date October 18, 2004; Reflexite filed a timely form 43 and paid benefits.
- On May 7, 2007, Callender filed a new notice of claim alleging repetitive trauma from 1987 to her last day of work; Reflexite never filed a notice to contest or commenced payments on the May 2006 claim.
- Reflexite continued paying on the October 2004 claim but did not respond to the May 2006 claim within the statutory 28 days or file a notice to contest.
- The commissioner dismissed Callender’s motion to preclude; the board affirmed, treating the May 2006 claim as an exacerbation of the October 2004 claim, thus avoiding a separate notice to contest.
- Callender appealed, arguing Reflexite violated § 31-294c by not contesting or paying on the May 2006 claim, and that the May 2006 claim constituted a new claim rather than an exacerbation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether May 2006 claim is a new claim requiring a separate notice to contest | Callender contends May 2006 claim is a new injury arising from the same repetitive trauma. | Reflexite argues May 2006 claim is not new, but an exacerbation of the October 2004 claim. | The claim is a new claim requiring notice to contest or payment within 28 days. |
| Whether the board erred in treating May 2006 claim as non-new and thus not requiring a notice to contest | Board incorrectly assumed causation and treated May 2006 as same-injury exacerbation. | Employer argued continued payments on October 2004 suffice to preserve rights for May 2006. | Board erred; preclusion applies if the May 2006 claim is new and uncontested. |
| Whether preclusion is proper given the employer's failure to contest or pay timely | Preclusion should be granted for failure to contest or pay timely. | Preclusion should not apply due to the May 2006 claim being a non-new claim. | Preclusion was improperly denied; VR should grant preclusion on May 2006 claim. |
| Whether double recovery concerns affect Reflexite’s obligations | Double recovery defense must be raised in a notice to contest; cannot justify late response. |
Key Cases Cited
- Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102 (Conn. 2008) (conclusive presumption under § 31-294c does not bar jurisdictional inquiry by employer)
- Donahue v. Veridiem, Inc., 291 Conn. 537 (Conn. 2009) (conclusive presumption limits employer inquiry to merits only; not complete bar)
- Castro v. Viera, 207 Conn. 420 (Conn. 1988) (subject matter jurisdiction and jurisdictional facts can be contested by employer)
- Menzies v. Fisher, 165 Conn. 338 (Conn. 1973) (preclusion and grounds for contest under § 31-294c)
- Adzima v. UAC/Norden Division, 177 Conn. 107 (Conn. 1979) (distinguishes aggravation versus new injury; extent of disability vs. existence of injury)
- DeAlmeida v. M.C.M. Stamping Corp., 29 Conn. App. 441 (Conn. App. 1992) (jurisdictional facts vs. causation; preclusion framework)