Salerno v. Lowe’s Home Improvement Center

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             GARY SALERNO v. LOWE’S HOME
              IMPROVEMENT CENTER ET AL.
                      (AC 42344)
                        Alvord, Elgo and Eveleigh, Js.

                                    Syllabus

The defendant employer and its workers’ compensation insurer appealed
   to this court from the decision of the Compensation Review Board,
   which affirmed the decision of the Workers’ Compensation Commis-
   sioner granting the plaintiff employee’s motion to preclude the defen-
   dants from contesting the compensability of his injuries pursuant to
   statute (§ 31-294c (b)). The defendants received the plaintiff’s notice of
   claim for compensation but did not file any response until eighteen
   months later, when they filed a form 43 in which they contested liability
   for his injuries. The commissioner found that the plaintiff properly filed
   his notice of claim and that the defendants had not paid him for any of
   his lost time from work or for any of his medical treatment related to
   his claim for compensation. The defendants appealed to the board,
   claiming that the exception to the preclusion provision in § 31-294c (b)
   recognized in Dubrosky v. Boehringer Ingelheim Corp. (

145 Conn. App. 261

) was applicable because the plaintiff’s failure to present a claim for
   medical or indemnity benefits within the twenty-eight day time period
   mandated by § 31-294c (b) made it impossible for the defendants to
   avail themselves of the one year safe harbor provision of § 31-294c (b),
   which permits an employer to contest the employee’s right to receive
   compensation on any grounds or the extent of the employee’s disability
   when the employer has failed to contest liability for the plaintiff’s injuries
   within the twenty-eight day time period but commences payment within
   the twenty-eight day time period. The board rejected the defendants’
   claim that the exception recognized in Dubrosky was applicable and
   affirmed the commissioner’s decision. Held that the board properly
   determined that the defendants were precluded from contesting their
   liability for the plaintiff’s injuries; the defendants did not accept liability
   for the plaintiff’s injuries, they belatedly filed a form 43 in which they
   denied liability, they did not pay the plaintiff for any of his lost time
   from work or for his medical treatment, and this court declined to
   extend the exception to the preclusion provision of § 31-294c (b) for
   the reasons stated in Dominguez v. New York Sports Club (198 Conn.
   App.       ), which this court released today, as the complex nature of
   the workers’ compensation scheme required that policy determinations
   and the creation of exceptions to § 31-294c (b) be left to the legislature.
            Argued January 13—officially released July 14, 2020

                              Procedural History

   Appeal from the decision of the Workers’ Compensa-
tion Commissioner for the Sixth District granting the
plaintiff’s motion to preclude the defendants from con-
testing liability as to his claim for certain workers’ com-
pensation benefits, brought to the Compensation
Review Board, which affirmed the commissioner’s deci-
sion, and the defendants appealed to this court.
Affirmed.
   Paul M. Shearer, for the appellants (defendants).
  Robert C. Lubus, Jr., with whom, on the brief, were
Richard O. LaBrecque and Donald J. Trella, for the
appellee (plaintiff).
                           Opinion

   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 Commis-
sion received the plaintiff’s notice of his claim for com-
pensation 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 com-
missioner 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 injur-
ies.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. Boeh-
ringer Ingelheim 

Corp., supra

, 

145 Conn. App. 261

.7
The board disagreed and affirmed the decision of the
commissioner, and this appeal followed.
  On appeal, the defendant challenges the board’s con-
clusion 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. 266

. That employer also paid all medical
bills submitted to it by the plaintiff’s physician.

Id., 265. 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. 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.
   Unlike the defendant employer in Dubrosky, the
defendant here has not accepted liability for the plain-
tiff’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-Cor-
rea v. Reflexite 

Corp., supra

, 

190 Conn. App. 639

.
   To the extent that the defendant invites us to extend
the narrow exception to the preclusion provision articu-
lated in Dubrosky, we decline to do so for the reasons
set forth in Dominguez v. New York Sports Club, 198
Conn. App.       ,     A.3d     (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 omit-
ted; 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 convenience, we refer to Lowe’s Home Improvement Center as the
defendant.
   2
     As the board recounted in its decision, the plaintiff’s ‘‘job required the
repetitive lifting of heavy plumbing fixtures, some of which weighed over
100 pounds. The [plaintiff] experienced increasing difficulty lifting heavy
objects until he was ultimately unable to do his job in December, 2012. He
reported worsening sciatic pain down his right leg and eventually reached
a point where he could no longer walk for more than ten or fifteen minutes
without having to stop and rest. In December, 2012, he stopped working
and consulted his family physician . . . who, in January, 2013, prescribed
physical therapy. When this treatment did not result in long-term relief,
[the physician] referred the [plaintiff] to [a neurosurgeon who] ordered [a
magnetic resonance imaging scan] and suggested pain management and an
injection, neither of which provided any relief. [The neurosurgeon] then
recommended an L4–5 lumbar fusion, which he performed on June 17, 2013.’’
   3
     ‘‘A form 30C is the form prescribed by the [W]orkers’ [C]ompensation
[C]ommission . . . for use in filing a notice of claim under the [Workers’
Compensation Act, General Statutes § 31-275 et seq.].’’ (Internal quotation
marks omitted.) Carter v. Clinton, 

304 Conn. 571

, 576 n.4, 

41 A.3d 296

(2012).
   4
     ‘‘A form 43 is a disclaimer that notifies a claimant who seeks workers’
compensation benefits that the employer intends to contest liability to pay
compensation. If an employer fails timely to file a form 43, a claimant may
file a motion to preclude the employer from contesting the compensability
of his claim. . . . The form 43 generally must be filed within twenty-eight
days of receiving written notice of the claim.’’ (Citation omitted; emphasis
added; internal quotation marks omitted.) Wiblyi v. McDonald’s Corp., 

168 Conn. App. 77

, 79 n.2, 

144 A.3d 1075

(2016).
   5
     In the portion of the form titled ‘‘Reason(s) for Contest,’’ the defendant
stated: ‘‘Alleged injury/disability for both body parts, does not arise out of
or in the course of employment. Claim is also time barred.’’
   6
     Under the one year safe harbor provision embodied in § 31-294c (b), an
employer that fails to timely contest liability for the plaintiff’s injuries within
the twenty-eight day time period in § 31-294c (b) but that commences pay-
ment within that twenty-eight day time period is granted a one year period
in which to contest the employee’s right to receive compensation on any
grounds or to contest the extent of the employee’s disability. See Dominguez
v. New York Sports Club, 198 Conn. App.          ,    ,     A.3d        (2020); see
also General Statutes § 31-294c (b).
   7
     The defendant also argued that the plaintiff’s claim for compensation,
as memorialized in his form 30C, was ‘‘too vague to support preclusion.’’
The board rejected that contention, and the defendant does not contest the
propriety of the board’s determination in this appeal.

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