Wikander, et al v. Asbury Automotive Group/David McDavid Acura

The claimant was represented by Matthias J. DeAngelo, Esq., and Thomas Galvin Cotter, Esq., The Cotter Law Firm, 2563 Main Street, Stratford, CT 06615.

The respondents were represented by Timothy G. Zych, Esq., and Alexandra Curran, Esq., Law Office of Cynthia M. Garraty, Crossroads Corporate Park, 6 Devine Street, 1st Floor, North Haven, CT 06473.

This Petition for Review from the September 8, 2010 Finding and Award of the Commissioner acting for the Fourth District was heard April 1, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Christine L. Engel and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents in this matter have appealed from a bench ruling dated September 1, 2010 and a Finding and Award dated September 8, 2010 which ruled that the Commission has jurisdiction over this claim, and that pursuant to § 31-294c C.G.S., the respondents should be precluded from challenging the compensability of this claim as they failed to file a timely disclaimer. We find the trial commissioner’s decision consistent with legal precedent and therefore, we affirm the trial commissioner on those issues. The respondents have also appealed from an award of attorneys’ fees owed to the claimant as a result of undue delay. We believe a sufficient factual predicate existed in this case to justify the imposition of § 31-300 C.G.S. sanctions. We affirm the trial commissioner on this issue as well.

The trial commissioner reached the following findings of fact at the conclusion of a formal hearing held on four separate sessions. The trial commissioner found that the decedent, Thomas Wikander, was employed by Asbury Automotive Group/David McDavid Acura (the “employer”) on September 25, 2007. On that date the decedent was on a business trip to Plano, Texas auditing his employer’s car dealership when he suffered a fatal heart attack using a hotel exercise treadmill. The decedent was survived by a wife and three daughters, who are the claimants. The local medical examiner in Texas opined that within reasonable medical probability work-related stress was a major contributing factor to the decedent’s fatal heart attack. The claimants consulted with a Bridgeport, Connecticut based cardiologist, Dr. Edward Kosinski, who concurred with the Texas medical examiner regarding the causal link between the decedent’s work-related stress and his heart attack.

The decedent’s widow testified by affidavit. She testified that she was told on the day of the decedent’s death he was under a great deal of stress from his work assignment. Her consultation with Dr. Kosinski was due to concern that her daughters might have the same heart condition their father had. She brought a claim under Texas workers’ compensation law seeking benefits as a result of the decedent’s death which was denied by the respondents. She was advised by legal counsel in Texas that a workers’ compensation claim for a heart attack was not recoverable under Texas law; therefore, she did not pursue the claim to judgment. She said her husband’s average weekly wage exceeded $3,000 per week.

The claimants filed four separate Form 30D’s which were received by the Commission on September 15, 2009. The respondents received a copy of the forms on September 21, 2009. The claimants filed a Motion to Preclude on November 13, 2009 based on the respondents failure to file a Form 43 within 28 days of receiving the Form 30D’s. The respondents filed a Form 43 on November 20, 2009. The respondents contend that the Form 30D’s were untimely as they were not filed within one year of the claimant’s death. The respondents opposed the Motion to Preclude, arguing that as they had denied the claim filed in Texas, that denial was adequate to comply with the requirements under § 31-294c C.G.S.

The trial commissioner found that the parties had submitted briefs and arguments on the issues related to the timeliness of the claim and the Commission’s jurisdiction. He further found the respondents had originally said they would advance a defense as to whether the decedent’s use of exercise equipment prior to his demise negated jurisdiction, but while the claimant briefed that issue the respondents did not; stating their research led them to withdraw the defense. The trial commissioner further found claimants counsel submitted an affidavit on attorneys’ fees and that the respondents agreed to forego testimony on the attorneys’ fees issue.

Based on this record the trial commissioner determined a contract of employment between the decedent and the respondents existed on the date of the decedent’s death, on a day when he was on a business trip for the respondents. The trial commissioner found that § 31-294c (a) C.G.S. allowed the claimants to file within two years of the original accident, or one year of the date of death, whichever is later. As a result, the claimants Form 30D’s were timely. He further found the respondents denial of the Texas claim failed to meet the requirements of § 31-294c C.G.S. and failed to provide notice the Connecticut claim was being defended. As the respondents failed to file a timely Form 43 within 28 days of the notices of claim the Motion to Preclude was granted. The trial commissioner also found the reports of the physicians opining to causation were credible, and awarded benefits to the claimants pursuant to § 31-306 C.G.S., at the maximum weekly compensation rate. Finally, he ordered statutory interest on the award at the rate of 12% pursuant to § 31-300 C.G.S., as well as awarding attorney’s fees in the amount of $13,872.50 for undue delay.

The respondents filed a Motion to Correct which was denied in its entirety. They have advanced this appeal. The primary focus of their appeal is that the claim herein is untimely as it was not filed within one year of the decedent’s death; therefore, in the respondents’ opinion, this deprives this Commission of jurisdiction. The other primary argument is that the respondents earlier denial of the claim in Texas acted as a de facto disclaimer of the claim filed in Connecticut. We find neither argument persuasive.

On the issue of the timeliness of claim, we were presented with identical arguments from the respondents in Dauti v. Lighting Services, Inc., 5553 CRB-5-10-5 (April 25, 2011). In Dauti we determined that the trial commissioner’s reliance on the one year statute of limitations to bring a claim for benefits was improper when the survivor’s claim was brought within two years of the worker’s death. We determined that the plain meaning of § 31-294c (a) C.G.S. made such a claim jurisdictionally valid.1

In Dauti, supra, we specifically analyzed § 31-294c C.G.S. in the context of the paramount statute governing statutory interpretation in Connecticut, § 1-2z C.G.S. We concluded that the application of this statute to the notice of claim statute compelled us to find jurisdiction.

The facts of this case are essentially indistinguishable from Dauti, supra, and Merenski, supra; therefore, stare decisis compels us to reach the same result. The respondents in this matter argue that “dicta” in Fredette v. Connecticut Air National Guard, 283 Conn. 813 (2007) supports their position that the statute only permits a one year period for the filing of § 31-306 C.G.S. claims. In light of the fact that in Fredette the Supreme Court affirmed our findings that the claimant in that case had the two year period from the decedent’s demise to file her claim we find the respondents reasoning herein unpersuasive. The claim herein was commenced in a timely manner so as to give this Commission jurisdiction over the injury.

We turn to the other major argument raised by the respondents. They argue that as they interposed a denial of the claimants bid for workers’ compensation benefits in a Texas forum; this denial should be deemed sufficient to constitute a disclaimer under Connecticut law and the trial commissioner should not have granted the claimant’s Motion to Preclude. We disagree as we have consistently held that notices filed by parties in other jurisdictions do not act to engage the authority of this Commission. Therefore, the respondents’ reliance on Elmassri v. Vinco, Inc., 5 Conn. Workers’ Comp. Rev. Op. 96, 584 CRD-7-87 (June 2, 1988) lacks merit.

In Elmassri, the respondents filed a disclaimer with this Commission prior to the claimant perfecting their claim with a Form 30C. We upheld this practice as clearly the claimant was placed on notice that a claim before our Commission was being contested, and was provided the rationale as to why the claim was denied. The practice of filing a Form 43 in advance of an anticipated Form 30C or Form 30D from the claimant has been consistently upheld by this Commission; see Christy v. Ken’s Beverage, Incorporated, 5157 CRB-8-06-11 (December 7, 2007).

In the present matter, however, the respondents filed nothing with this Commission until after the claimants had filed their Form 30D’s, more than 28 days had elapsed, and a Motion to Preclude had been filed. We find no factual parallel herein with Elmassri. The claimants herein were not apprised of what the respondents defense would be to the claim in this forum until after statutory preclusion would have entered under the precedents in Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102 (2008) and Donahue v. Veridiem, Inc., 291 Conn. 537 (2009).

Basically the respondents’ argument is since they filed a defense in another forum this defense was an effective disclaimer for a claim filed under Chapter 568. We rejected this line of reasoning in Zolla v. John Cheeseman Trucking, Inc., 5261 CRB-5-07-8 (August 4, 2008), appeal dismissed, A. C. 30251 (March 5, 2009). In Zolla the claimant filed claims in Ohio (the respondent’s headquarters) and in Connecticut for his injury sustained in New Jersey. The respondent filed a defense to the Ohio claim but failed to respond to the Connecticut claim until preclusion had attached by operation of law. In Zolla, we pointed out that there was no res judicata from a prior inconsistent foreign judgment, and based on the facts, the trial commissioner properly found the Connecticut commission had subject matter jurisdiction over the claim and could order preclusion. See footnote, ¶ 8 in Zolla, supra.2

We find the circumstances herein analogous to the fact pattern we dealt with in Chambers v. General Dynamics Corp./Electric Boat Division, 4952 CRB-8-05-6 ( June 7, 2006), aff’d, 283 Conn. 840 (2007). In Chambers, the injured worker filed a claim for benefits under the federal Longshore and Harbor Workers Act (LHWCA) but did not file a claim for benefits under Connecticut law. After her spouse’s death, Mrs. Chambers filed a § 31-306 C.G.S. claim under Connecticut law. We found that as the decedent never filed a claim under Chapter 568 within the statutory time limitations of § 31-294c C.G.S., the subsequent death claim was jurisdictionally barred. We declined to accept the claimant’s position “that the respondents were placed on notice by the filing of a LHWCA claim that a claim under Chapter 568 would be forthcoming.” Id., as precedent in Buck v. General Dynamics Corporation/Electric Boat Division, 3324 CRB-2-96-4 (January 21, 1998) required a separate, timely claim be filed to preserve jurisdiction under Chapter 568.

The case of Kuehl v. Z-Loda Systems Engineering, 265 Conn. 525 (2003) is also analogous. In that case the respondents had constructive notice that a claimant was intervening in a civil lawsuit, but that was held to be insufficient to constitute a claim for § 31-306 C.G.S. benefits. The reasoning in Kuehl is relevant as the Supreme Court further concluded that while the respondent had actual notice of the decedent’s death, the form of the notice “contained no indication that the plaintiff was seeking or intended to seek survivor’s benefits. . . .” Id., 535. The Supreme Court refused to permit the service of process in civil litigation to serve as the functional equivalent of official notice under Chapter 568. In construing the savings provision of § 31-294c C.G.S., the Supreme Court held “it does not excuse, however, the failure to file a notice of claim.” Id., 537 (Emphasis in original.. As official notice under § 31-294c (a) C.G.S. was “an integral provision of our workers’ compensation scheme . . . .” Id., 539, the Supreme Court upheld the decision of the trial commissioner and this board that Mrs. Kuehl failed to engage the jurisdiction of our Commission.

We cannot examine the rationale expressed in the Chambers and Kuehl opinions where claimants were barred from asserting that claims brought in other forums preserved jurisdiction under Chapter 568, and then find a respondent’s denial of a claim filed in another state should defeat statutory preclusion under Connecticut law. While preclusion is a “harsh remedy” West v. Heitkamp, Inc., 4587 CRB-5-02-11 (October 27, 2003), appeal dismissed for lack of final judgment, A.C. 24805 (February 11, 2004), the precedent in Harpaz, supra, and Donahue, supra, gave the trial commissioner no choice but to grant the claimants motion when no disclaimer was filed. The plain language of § 31-294c (b) C.G.S. makes clear only a disclaimer served on the Commission is an effective disclaimer and we are bound to apply the terms of this statute.3

The respondents further appeal from the award of attorneys’ fees to the claimants. Their position is that pursuant to § 31-300 C.G.S., attorneys’ fees may only be levied when payments due to the claimant are unduly delayed due to “fault or neglect.” The respondents argue that they presented a good faith defense to the claim, and therefore the condition precedent to issue the award to the claimants was not present. In light of the precedent in Harpaz and Donahue, we believe we are compelled to uphold the award.

Harpaz and Donahue stand for the proposition that once a claimant files a claim before this Commission, the respondent is obligated by the terms of § 31-294c C.G.S. to take some responsive action within 28 days. The respondent may accept the claim, commence payment without prejudice while an investigation is conducted, or disclaim legal obligation for the claim. Failure to respond to a claim constitutes a violation of statute and precludes the respondent from contesting the claim. In the present case, it is acknowledged the respondents took none of the responsive actions delineated under Harpaz and Donahue. When preclusion affixed to this claim, the respondents became obligated to the claimants unless the trial commissioner determined the claim failed to present a prima facia case.

The trial commissioner concluded that the payments in this matter were “unduly delayed pursuant to C.G.S. 31-300” when he awarded attorneys’ fees. Conclusion, ¶ j. We find this decision was consistent with recent precedent on this statute, specifically Abrahamson v. State/Department of Public Works, 5280 CRB-2-07-10 (February 26, 2009) and Merenski v. Greenwich Hospital Association, Inc., 5076 CRB-7-06-4 (June 18, 2007) (a/k/a “Merenski III”). Merenski III cited In re Shaquanna M., 61 Conn. App. 592, 603 (2001) for the proposition that a trial commissioner’s decision as to whether a respondent acted to unduly delay payments was subject to an “abuse of discretion” standard. Merenski III also distinguished Malafronte v. Med-Center Home Health Care, 3888 CRB-7-98-9 (August 31, 1999), where we vacated sanctions, pointing out that in Malafronte a factual dispute was present. In the present matter it is undisputed that the respondents failed to file a timely disclaimer with this Commission. The trial commissioner’s findings in this case also document delays as a result of the respondents at first seeking to interpose jurisdictional defenses, and then abandoning those defenses later stating they proved to be invalid. See Findings, ¶¶ 13 & 14. These findings are consistent with the findings in Merenski III where the respondent in that case interposed time consuming and ineffectual defenses.

While we affirmed an award of sanctions in Merenski III we affirmed the trial commissioner’s denial of sanctions in Abrahamson, supra. We reviewed the “abuse of discretion” standard in that case, and concluded the complexity of the issues in that case, as well as the claimant’s status as an out of state resident, acted to impede the prompt resolution of that case. We find the facts herein more congruent with Merenski III than Abrahamson. Failure to adhere to an unambiguous statutory obligation is not a complex issue which excuses a respondent’s delay. While the imposition of an award for attorneys’ fees following preclusion is indeed a “harsh remedy”, West, supra.; we find the Supreme Court has specifically encouraged this Commission to impose harsh remedies when respondents fail to file disclaimers or commence payment as mandated by statute. Harpaz, supra, 120-121, footnote, ¶ 13, pp. 130-131.

In McFarland v. Department of Developmental Services, 115 Conn. App. 306 (2009) the Appellate Court affirmed the principle that sanctions pursuant to § 31-300 C.G.S. are subject to a discretion standard on the part of the trial commissioner and dependent on the facts in the case. Id., 322-323, citing Coollick v. Windham, 7 Conn. App. 142 (1986). In McFarland the Appellate Court vacated the order of sanctions, finding the absence of the necessary factual predicate to impose such sanctions. Id., 323. In the present case, we find the trial commissioner established the necessary factual predicate to impose sanctions as he found the respondents failed to adhere to their statutory obligation to file a disclaimer and subsequently sought an extension of time to pursue a defense they themselves rejected as futile. We do not find the decision to award attorneys’ fees herein was arbitrary or unsupported by facts on the record.

The claimants brought a timely claim before this Commission and the respondents failed to raise a timely defense.4 The Finding and Award is herein affirmed and the appeal is dismissed.

Commissioners Christine L. Engel and Ernie R. Walker concur in this opinion.

a) No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within the two-year period or within one year from the date of death, whichever is later. Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, or the date of the first manifestation of a symptom of the occupational disease and the nature of the disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. An employee of the state shall send a copy of the notice to the Commissioner of Administrative Services. As used in this section, “manifestation of a symptom” means manifestation to an employee claiming compensation, or to some other person standing in such relation to him that the knowledge of the person would be imputed to him, in a manner that is or should be recognized by him as symptomatic of the occupational disease for which compensation is claimed. BACK TO TEXT

2 We respectfully disagree with the respondents as it is not a matter of elevating “form” over “substance” when a party files nothing at all before our Commission. The Commission itself, having never seen the respondents’ filings in Texas, was left totally uninformed that the respondents had any intent to defend this claim. While this tribunal has upheld disclaimers which allegedly had technical deficiencies, see Duglenski v. Waterbury, 4913 CRB-5-05-2 (January 18, 2006) and DiStasi v. Watertown Board of Education, 5010 CRB-5-05-10 (September 25, 2006), one must file a timely disclaimer of some sort with this Commission to avoid statutory preclusion. The plain meaning of § 31-294c (b) C.G.S. requires all disclaimers to be filed “with the commissioner.” BACK TO TEXT

(b) Whenever liability to pay compensation is contested by the employer, he shall file with the commissioner, on or before the twenty-eighth day after he has received a written notice of claim, a notice in accord with a form prescribed by the chairman of the Workers’ Compensation Commission stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested. The employer shall send a copy of the notice to the employee in accordance with section 31-321. If the employer or his legal representative fails to file the notice contesting liability on or before the twenty-eighth day after he has received the written notice of claim, the employer shall commence payment of compensation for such injury or death on or before the twenty-eighth day after he has received the written notice of claim, but the employer may contest the employee’s right to receive compensation on any grounds or the extent of his disability within one year from the receipt of the written notice of claim, provided the employer shall not be required to commence payment of compensation when the written notice of claim has not been properly served in accordance with section 31-321 or when the written notice of claim fails to include a warning that (1) the employer, if he has commenced payment for the alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim, shall be precluded from contesting liability unless a notice contesting liability is filed within one year from the receipt of the written notice of claim, and (2) the employer shall be conclusively presumed to have accepted the compensability of the alleged injury or death unless the employer either files a notice contesting liability on or before the twenty-eighth day after receiving a written notice of claim or commences payment for the alleged injury or death on or before such twenty-eighth day. (Emphasis added.) BACK TO TEXT

4 We uphold the trial commissioner’s denial of the respondents’ Motion to Correct. This motion sought to interpose the respondents’ conclusions as to the law and the facts presented. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. State/Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). BACK TO TEXT