190 Conn. App. 623
Conn. App. Ct.2019Background
- On April 17–20, 2009 plaintiff Marcella Woodbury‑Correa filed and served a form 30C claiming repetitive‑trauma work injuries; commission and employer received it April 20, 2009.
- Employer Reflexite did not timely file a form 43 with the Workers’ Compensation Commission within 28 days; it served the claimant by certified mail but faxed a copy to the commission on July 24, 2009.
- Commissioner found no medical or indemnity bills had been submitted within the 28‑day period and concluded it was impossible for the employer to commence payment, so denied plaintiff’s motion to preclude employer from contesting liability.
- Compensation Review Board affirmed, and additionally concluded (contrary to the commissioner’s finding) that Reflexite had filed a proper, though untimely, form 43 with the commission.
- On appeal the Appellate Court reversed: (1) the board exceeded its authority by making a new factual finding that contradicted the unchallenged commissioner finding that no proper form 43 was filed with the commission; and (2) the impossibility defense (excusing strict compliance) does not apply where the employer contests liability rather than only the extent of disability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the board exceeded its authority by making a new factual finding about form 43 service | Board improperly contradicted commissioner’s unchallenged finding that no proper form 43 was filed with the commission | Board argued a form 43 was received by the commission by fax July 24, 2009 and thus had been filed (albeit untimely) | Reversed: board exceeded authority; record shows no properly served form 43 under §31‑321 and commissioner’s finding stood |
| Whether impossibility excuses failure to file a timely form 43 when no medical bills were submitted within 28 days | Woodbury‑Correa: impossibility defense inapplicable when employer contests liability; employer must file timely form 43 regardless of bills | Reflexite: could not commence payment within 28 days because no bills were submitted, so impossibility should excuse strict compliance | Reversed: impossibility defense does not apply to contests of liability; employer had the ability to file form 43 and failed to do so, so preclusion should have been granted |
| Proper filing method and service requirements for form 43 | Plaintiff: form 43 must be properly served on the commission by personal, registered or certified mail; fax does not comply | Defendant: relied on fax transmission to commission and certified service to claimant | Held: statute and form require personal or registered/certified mail or personal service; fax transmission to commission is insufficient |
| Effect of employer’s later contest within one year | Plaintiff: one‑year safe harbor for contesting extent of disability does not cure failure to timely contest liability | Defendant: timely contest within one year preserves rights; safe harbor applies | Held: one‑year safe harbor may apply to extent‑of‑disability contests (per Dubrosky), but not to initial contest of liability; late filing cannot avoid preclusion for failure to comply within 28 days to contest liability |
Key Cases Cited
- Dubrosky v. Boehringer Ingelheim Corp., 145 Conn. App. 261 (Conn. App.) (excusing strict compliance when employer contests only extent of disability and it was impossible to commence payments within 28 days)
- Wiblyi v. McDonald’s Corp., 168 Conn. App. 77 (Conn. App.) (two‑part inquiry for motions to preclude under §31‑294c)
- Adzima v. UAC/Norden Division, 177 Conn. 107 (Conn.) (distinction between contesting liability and contesting extent of disability)
- Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102 (Conn.) (§31‑294c interpretation and effect of employer’s failure to timely contest)
- Donahue v. Veridiem, Inc., 291 Conn. 537 (Conn.) (§31‑294c is ambiguous on certain preclusion issues)