TEAGUE v. REPKO ROOFING, NO. 4920 CRB-7-05-02 (3-1-2006)


MARCH 1, 2006

The Petition for Review from the January 31, 2005[1]
Finding and Dismissal of the Commissioner acting for the Seventh District was heard September 23, 2005 before a Compensation Review Board panel consisting of Commissioners Stephen B. Delaney, Nancy E. Salerno, and Michelle D. Truglia.

[1] We note an extension of time was filed during the pendency of this appeal.

The claimant was represented by Michael Regan, Esq., Pinney Payne, P.C., 83 Wooster Heights, Danbury, CT 06810. However, counsel chose to waive oral argument and requested matter be considered on papers.

The respondent-employer, Repko Roofing, was represented by Laura A. Goldstein, Esq., Collins, Hannafin, Garamella, Jaber
Tuozzolo, 148 Deer Hill Avenue, Danbury, CT. 06810.

The respondent, Second Injury Fund, was represented by Lisa G. Weiss, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.


The claimant has filed a petition for review from the January 31, 2005 Finding and Dismissal of the Commissioner acting for the Seventh District. The claimant filed his petition for review on February 22, 2005, which was more than twenty days after the trial commissioner’s decision was issued and was thus untimely under § 31-301(a) C.G.S. and vulnerable to dismissal. The claimant also filed an Extension of Time to file a Motion to Correct on February 22, 2005 which is beyond the two-week period allowed under Admin. Reg. § 31-301-4, but the trial commissioner approved the extension. The Motion to Correct was not filed until March 16, 2005, and was denied by the trial commissioner. The respondent accordingly moved to dismiss the claimant’s appeal on March 16, 2005. The claimant failed to submit an appellant’s brief in a timely fashion, or submit reasons for appeal in accordance with Admin. Reg. § 31-301-2, thus the respondent filed another motion to dismiss on August 2, 2005. The board did not receive the appellant’s brief until September 22, 2005, the day before the hearing on September 23, 2005.

It is expected that parties appearing before this board will make diligent efforts to assure compliance with the rules and regulations governing appeals before this board. The initial Petition for Review was untimely. Accordingly, we dismiss the claimant’s appeal as late. Were we lenient, and had the authority to permit a late appeal the fact remains the claimant did not submit his brief until literally hours prior to the scheduled hearing. This failure to submit a timely brief or reasons for appeal could have prejudiced the opposing party. See Mullane v.Central Hanover Tr. Co., 339 U.S. 306 (1950) (due process requires opposing party to be given an opportunity to present their objections). Accordingly, we also dismiss the appeal for failure to prosecute with due diligence under Practice Book §85-1. See Rurak v. Sweet Life Inc., 4630 CRB-1-03-02 (February 6, 2004).

Even if we were to consider the merits of the claimant’s appeal, we would affirm the trial commissioner’s decision. We continue a review of the facts and law in this appeal as the circumstances warrant a discussion of the reasoning behind the trial commissioner’s decision and the public policy governing this matter.

The instant case involves an appeal of a trial commissioner’s decision regarding issues which were predominately focused on resolving questions of fact and credibility. A recitation of the facts indicates that this was a very challenging case to resolve, and one in which the application of appropriate legal precedent leads to a result which may not appear to comport with the remedial and humanitarian spirit of the Workers’ Compensation Act.

The record finds the following facts. The claimant was working on a construction site in Danbury on July 5, 1996, when another worker’s nail gun malfunctioned and launched a projectile which impacted the claimant’s eye.[2] The employer drove him immediately after the accident to the Primary Care Center in Danbury, and waited in his car for the claimant to be treated. Findings, ¶ 3. He then drove the claimant back to his motor vehicle, who left for the day. Findings, ¶ 4. The claimant returned to work the next day and continued to work for the respondent until September 20, 1996.

The claimant’s eye continued to bother him and he sought further treatment towards the end of 1997. He did not submit bills at that time to his former employer. Findings, ¶¶ 7 and 8. In February 1999, the claimant sought, and the respondent provided, $6,976 to cover medical expenses associated with the eye injury and subsequent medical attention. Findings, ¶¶ 9 and 10. On October 2, 2002, the claimant finally filed a Form 30C regarding the 1996 nail gun accident seeking compensation under Chapter 568. The respondent filed a timely Form 43 contesting liability.

Respondent’s defense centered on the commission lacking jurisdiction due to the claim being untimely under § 31-294c
C.G.S. Generally, a claim for workers’ compensation benefits for an accidental injury must be filed within one year of the injury. See § 31-294c(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.” The claimant asserted this situation fell within an exception for the statutory notice provision, i.e. the exception that when an employer furnishes medical care to an employee within a year of the accident, the written notice requirement under the statute is waived. See § 31-294c(c) “Failure to provide a notice of claim under subsection (a) of this section shall not bar maintenance of the proceedings . . . if within the applicable period an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as provided in section 31-294d.”

The factual question for the trial commissioner was to determine whether the claimant proved that his employer had furnished medical care within a year of the accident. After a formal hearing, the trial commissioner determined that the claimant had failed to prove he had been furnished medical care within the meaning of the statute within one year of the accident.

The respondent’s legal argument relies on Kulis v. Moll,172 Conn. 104 (1976) where the Supreme Court found that the employer’s act of driving an employee to the hospital did not constitute the furnishing of medical care as described in §31-294c(c). The facts herein are distinguishable from the Kulis
case, leaving the case as valid legal precedent, but not incontrovertible stare decisis in this instance.[3] The respondent had actual knowledge of the potential impact of the injury, evidenced by remaining at the Primary Care Center until the claimant was treated and released.

Nonetheless, our prior precedent requires the claimant to satisfy the trial commissioner that the employer took some affirmative act beyond simply transporting him to a medical professional, as the statutory exemption does not provide for even the most unequivocal constructive notice to supplant written notice.[4]

The difficulty the claimant has here is that, having not filed a timely Form 30C, he now has the burden of proving the medical care exception to the statute. Despite extensive discussion at the Formal hearing, the claimant did not proffer evidence persuasive to the trial commissioner that the bill for the visit to the Primary Care Center on July 5, 1996 was ever paid by the respondent, see May 4, 2004 Transcript, pp. 17, 23, 39, 47-48, 52, and 60.[5]

The absence of such timely payment to a medical provider causes such precedents as Pernacchio v. New Haven, 3911 CRB-3-98-10
(September 27, 1999), aff’d, 63 Conn. 570 (2001) and Distassiov. HP Hood, Inc., 4592 CRB-4-02-11 (May 5, 2004) (ER bills paid by employer) to be inapplicable to this matter. The trial commissioner simply determined after reviewing the evidence that the claimant could not prove the respondent paid for the medical care rendered after the accident. See Findings, ¶¶ 5 and 8. This issue essentially boiled down to a credibility debate between two witnesses, Mr. Teague and Mr. Repko, and the trial commissioner is exclusively empowered to determine which witness he deems credible. See Tartaglino v. Dept. of Correction,55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999).

For those reasons, the decision in DelConte v.State/Department of Correction, 4766 CRB-8-03-12 (December 8, 2004) governs the outcome of this case. “The trial commissioner has a certain amount of discretion to make the determination of whether activities the employer engaged in constituted medical care as to meet the medical care exception within the meaning of the statute.” In DelConte, we upheld the trial commissioner’s finding that a prison nurse who was advised of an injury, suggested the claimant take Motrin, and did not report the injury to superiors did not “furnish” medical care within the meaning of the statute.

The claimant suffered a profound permanent injury in this instance by losing his eye and while the respondent’s payment years later for medical treatment was well intentioned, the claimant does not believe he was made whole. To deny further recovery to the claimant in this matter is a result driven by deference to the legislative purpose of statutes of repose. Clearly, the General Assembly has decided that not only must a Workers’ Compensation claim be meritorious; it must be timely as well.[6]

Our Supreme Court explained the rationale behind placing a time bar on seeking redress from an injury “it reflects a policy of law, as declared by the legislature, that after a given length of time a manufacturer should be sheltered from liability and furthers `the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability.'” Daily v. New Britain MachineCo., 200 Conn. 562, 582 (1986).

The inevitability of individual hardship from statutes of repose was apparent to the Supreme Court `”At times, it may bar the assertion of a just claim. Then its application causes hardship. The legislature has found [, however,] that such occasional hardship is outweighed by the advantage of outlawing stale claims.'” Id., p. 583.

Since the trial commissioner found no evidence the employer paid for any medical care within a year of the accident, the scenario herein fails to meet the exemption from formal notice in § 31-294c(c) C.G.S. It can only be presumed that in drafting the Workers’ Compensation Act the General Assembly intended that if an employer did not receive either a formal claim or a medical bill for an accident within one year, the employer could presume no claim would be forthcoming.

Our board is obligated to defer to the findings of facts of the trial commissioner and to implement the legislative policies enacted by the General Assembly. While the claimant will find the outcome unsatisfactory, it is the sole result we are empowered to reach.

As noted before, we have dismissed this appeal pursuant to Sec. 31-301(a) and Practice Book § 85-1. Had we chosen not to do so, the trial commissioner’s Finding and Dismissal would have been upheld.

Commissioners Nancy E. Salerno and Michelle D. Truglia concur.

[2] The Finding and Dismissal found that claimant eventually lost his eye.
[3] In Kulis, it appears the defendant simply brought the plaintiff to an emergency room. Id, p. 106. The opinion also suggests the defendant had no actual knowledge as to the cause of the injury “there was no evidence to indicate whether the plaintiff when found on the ground, had suffered a sudden illness, an accidental fall or even an external assault.” Id., pp. 111-112. The scenario in Gesmundo v. Bush, 133 Conn. 607, 612 (1947), did not apparently apply in Kulis, as the defendant may well have assumed in the absence of any notice the incident was not work-related. Here, the employer had actual knowledge the incident was work-related.
[4] Claimant’s reliance on Infante v. Mansfield Const. Co.,47 Conn. App. 530 (1998) is somewhat misplaced. The defendants inInfante acknowledged that they did furnish medical treatment. Id., p. 536. In addition, credibility issues were decided by the trial commissioner in the claimant’s favor. Id., pp. 532-533. In another case cited by the claimant, Roman v. Eyelets forIndustry, Inc., 48 Conn. App. 347 (1998), a voluntary agreement was reached less than four months after the accident and again, the trial commissioner’s factual findings favored the claimant.
[5] Even if we were to construe the February 1999 payment (which occurred more than two years after the accident) by the respondent as “furnishing medical care,” the record would need to clearly document this medical care was rendered within a year of the accident in order to satisfy § 31-294c(c) C.G.S. The record is murky at best as to when the reimbursed medical services were performed. The claimant has the burden of proof and failed to convince the trial commissioner.
[6] We reserve decision on one question we need not resolve at this time. Had the claimant’s submission of medical bills to the employer more than a year after the accident persuaded the trial commissioner to find jurisdiction, as a matter of law, would that have satisfied the medical care exemption to § 3-294c(c) C.G.S? Were that to occur, construing the statute to find an exemption would permit medical bills submitted over a year after the accident to confer jurisdiction on the commissioner when a Form 30C filed on that date would be jurisdictionally deficient under § 31-294c(a) C.G.S.