Wiblyi v. McDonald's Corp. , 168 Conn. App. 92 ( 2016 )

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JOHN M. WIBLYI, JR. v. MCDONALD’S
CORPORATION ET AL.
(AC 37304)
DiPentima, C. J., and Lavine and Mullins, Js.
Argued April 6—officially released September 6, 2016
(Appeal from Workers’ Compensation Review Board.)
John B. Cantarella, for the appellants (defendants).
Jennifer B. Levine, with whom was Harvey L.
Levine, for the appellee (plaintiff).
Opinion
DiPENTIMA, C. J. The defendant McDonald’s Corpo-
ration1 appeals from the decision of the Workers’ Com-
pensation Review Board (board) finding error in the
decision of the Workers’ Compensation Commissioner
(commissioner). On appeal, the defendant claims that
the board improperly concluded, as a matter of law,
that the equitable doctrine of laches was not available
as a defense to the motion to preclude filed by the
plaintiff, John M. Wiblyi, Jr.2 We disagree and, accord-
ingly, affirm the decision of the board.
The following facts and procedural history are rele-
vant to this appeal. The plaintiff filed a form 30C on
June 28, 2000,3 alleging that he had sustained an injury
on September 8, 1999, while in the course of his employ-
ment.4 Specifically, he claimed to have injured his knee
after tripping over boxes on the floor. The defendant
filed a form 435 on August 3, 2000, contesting liability
for the injury. Specifically, the defendant stated ‘‘that
[the] injury did not arise out of or in the course and
scope of employment with [the defendant]. No medical
documentation exists which supports causal relation-
ship, disability and treatment recommendations. Delay
in reporting incident. No medical treatment sought.
Therefore, [defendant intends] to contest liability to
pay compensation.’’6
After an extended time period, on February 25, 2010,
the plaintiff filed a motion to preclude the defendant
from contesting liability. Specifically, the plaintiff
argued that the defendant had ‘‘failed to file notice
contesting liability on or before the twenty-eighth day
after it received written notice of claim.’’ He further
maintained that, as a result, the defendant conclusively
was presumed to have accepted the compensability of
his alleged injuries.
On October 11, 2012, the defendant filed an amended
objection to the motion to preclude. It set forth the
following reasons for its objection: (1) the notice of the
claim was insufficient to trigger an investigation; (2)
the notice of the claim was served improperly for the
purposes of the motion to preclude; (3) there was no
prima facie medical report that an injury had occurred;
(4) waiver; (5) laches; (6) fraud; and (7) the defendant
had filed a proper denial of benefits pursuant to General
Statutes § 31-294c. In the attached memorandum of law,
the defendant argued that the plaintiff did not seek
treatment to be paid by the defendant until approxi-
mately February, 2008. It further claimed that the treat-
ment sought by the plaintiff included bilateral knee
replacement. With respect to its laches defense, the
defendant contended that the plaintiff’s delay of nearly
ten years before filing the motion to preclude consti-
tuted an inexcusable delay. It also claimed that there
had been significant proceedings in the two years prior
to the filing of the motion to preclude. Further, the
defendant argued that it suffered prejudice from the
delay because (1) witnesses were unavailable, (2) evi-
dence was lost or destroyed and (3) it had expended
significant resources throughout the course of the pro-
ceedings.
On August 21, 2013, the defendant filed a memoran-
dum of law in opposition to the motion to preclude. It
objected on the following bases: ‘‘(1) Improper Service
of the Motion to Preclude; (2) a timely denial was filed
under [§] 31-294c (b); and (3) Laches.’’ The defendant
iterated that there had been an inexcusable delay and
that it had suffered prejudice as a result of said delay.
On September 19, 2013, the commissioner denied
the plaintiff’s motion to preclude. In his decision, the
commissioner found that the plaintiff had filed a timely
notice of claim on June 28, 2000, and that the defendant
had not filed its form 43 within twenty-eight days of
receipt of the notice of claim.7 The commissioner also
found that the claim had been dormant for many years
and that many of the ‘‘original handlers of the claim
. . . are no longer available and some documents no
longer exist.’’
The commissioner denied the motion to preclude and
ordered the case to proceed on the merits. Specifically,
the commissioner stated: ‘‘Based on the totality of the
circumstances, I hereby deny the motion to preclude.
I am persuaded by the [defendant’s] position on this
issue, particularly as to the laches and prejudice claim,
as this motion to preclude was filed eleven years after
the filing of the [September 8, 1999] injury claim.’’8
The plaintiff appealed to the board from the denial
of his motion to preclude. On October 3, 2014, the board
issued a decision concluding that the commissioner
had erred as a matter of law by applying the equitable
doctrine of laches in the context of a motion to pre-
clude, a creature of statute. The board reasoned that
the Workers’ Compensation Commission is limited by
its enabling legislation and must act within its statutory
authority. It then examined § 31-294c (b), which sets
forth the framework for the filing of a motion to pre-
clude. The board noted that the statute does not provide
for a defense of laches. ‘‘Given that the remedy of claim
preclusion, as set forth in the provisions of § 31-294c
(b) . . . is clearly statutory in nature, we find that the
[commissioner] was prohibited as a matter of law from
denying the motion to preclude on the basis of the
equitable doctrine of laches.’’ After noting that statutory
language must be given the intent as expressed in the
words used by the legislature, the board remanded the
matter for additional proceedings to determine whether
the statutory requirements for granting a motion to
preclude have been satisfied. This appeal followed.
On appeal, the defendant argues that the board
improperly concluded the equitable doctrine of laches
was not applicable as a defense to a motion to preclude
filed pursuant to § 31-294c (b).9 It further contends that
both elements of laches were satisfied in this case, and
therefore the decision of the commissioner should have
been affirmed. We conclude that the board properly
determined, as a matter of law, that the defense of
laches is inapplicable in this case. Therefore the defen-
dant’s appeal must fail.
As an initial matter, we set forth the general principles
underlying the Workers’ Compensation Act (act), Gen-
eral Statutes § 31-275 et seq. ‘‘The purpose of the [act]
is to compensate the worker for injuries arising out of
and in the course of employment, without regard to
fault, by imposing a form of strict liability on the
employer . . . . [The act] compromise[s] an employ-
ee’s right to a common law tort action for work related
injuries in return for relatively quick and certain com-
pensation. . . . The act indisputably is a remedial stat-
ute that should be construed generously to accomplish
its purpose. . . . The humanitarian and remedial pur-
poses of the act counsel against an overly narrow con-
struction that unduly limits eligibility for workers’
compensation. . . . Further, our Supreme Court has
recognized that the state of Connecticut has an interest
in compensating injured employees to the fullest extent
possible . . . . The purposes of the act itself are best
served by allowing the remedial legislation a reasonable
sphere of operation considering those purposes.’’ (Cita-
tion omitted; internal quotation marks omitted.) Gill v.
Brescome Barton, Inc., 142 Conn. App. 279, 298–99, 68
A.3d 88 (2013), aff’d, 317 Conn. 33, 114 A.3d 1210 (2015);
Lamar v. Boehringer Ingelheim Corp., 138 Conn. App.
826, 831–32, 54 A.3d 1040, cert. denied, 307 Conn. 943,
56 A.3d 951 (2012).
We next set forth our well established standard of
review. ‘‘The conclusions drawn by [the commissioner]
from the facts found must stand unless they result from
an incorrect application of the law to the subordinate
facts or from an inference illegally or unreasonably
drawn from them. . . . It is well established that
[a]lthough not dispositive, we accord great weight to
construction given to the workers’ compensation stat-
utes by the commissioner and [the] board.’’ (Internal
quotation marks omitted.) Leonetti v. MacDermid, Inc.,
310 Conn. 195, 205–206, 76 A.3d 168 (2013).
The issue of whether laches is available as a defense
to a motion to preclude has not been decided by either
our Supreme Court or this court. Additionally, the board
did not indicate that it had relied on a time tested
interpretation of § 31-294c (b). We need not defer, there-
fore, to the board’s interpretation of the statute at issue
in the present case. ‘‘A state agency is not entitled . . .
to special deference when its determination of a ques-
tion of law has not previously been subject to judicial
scrutiny. . . . [W]hen . . . [a workers’ compensation]
appeal involves an issue of statutory construction that
has not yet been subjected to judicial scrutiny, this
court has plenary power to review the administrative
decision.’’ (Internal quotation marks omitted.) Kinsey
v. World Pac, 152 Conn. App. 116, 123, 98 A.3d 66 (2014);
see also Thomas v. Dept. of Developmental Services,
297 Conn. 391, 398–99, 999 A.2d 682 (2010); Perun v.
Danbury, 143 Conn. App. 313, 315–16, 67 A.3d 1018
(2013). Further, we are mindful that ‘‘[i]n construing
workers’ compensation law, we must resolve statutory
ambiguities or lacunae in a manner that will further the
remedial purpose of the act. . . . [T]he purposes of
the act itself are best served by allowing the remedial
legislation a reasonable sphere of operation considering
those purposes.’’ (Internal quotation marks omitted.)
McCullough v. Swan Engraving, Inc., 320 Conn. 299,
306, 130 A.3d 231 (2016); Kinsey v. World Pac, supra,
124.
Certain features of workers’ compensation law
regarding the timeliness of an employer’s response to
an employee’s claim of compensation pursuant to the
act underlie our resolution of the defendant’s appeal.
We first must examine the language of § 31-294c (b),
which sets forth the obligations of an employer to pre-
serve its right to contest the claim for workers’ compen-
sation benefits. We next consider the purpose behind
and effect of an employee’s motion to preclude filed in
response to the employer’s failure to comply with § 31-
294c (b).
Section 31-294c (b) provides in relevant part: ‘‘When-
ever 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’ Compensa-
tion Commission stating that the right to compensation
is contested. . . . Notwithstanding the provisions of
this subsection, an employer who fails to contest liabil-
ity for an alleged injury or death on or before the
twenty-eighth day after receiving a written notice of
claim and who fails to commence payment for the
alleged injury or death on or before such twenty-eighth
day, shall be conclusively presumed to have accepted
the compensability of the alleged injury or death.’’
(Emphasis added.) Plainly stated, an employer is
required either to file a form 43 or to commence pay-
ment of the alleged injury to an employee within twenty-
eight days of receiving written notice of the claim from
the employee.10 See, e.g., Mehan v. Stamford, 127 Conn.
App. 619, 626–27, 15 A.3d 1122 (§ 31-294c [b] dictates
‘‘strict standards’’ to employer that seeks to contest
liability), cert. denied, 301 Conn. 911, 19 A.3d 180 (2011).
Next, we examine the purpose and effect of a motion
to preclude. This motion is filed by an employee follow-
ing an employer’s failure to comply with § 31-294c (b),
such as an untimely filed form 43. See id., 623 n.6. ‘‘The
purpose of the preclusion statute is to ensure (1) that
employers would bear the burden of investigating a
claim promptly and (2) that employees would be timely
apprised of the specific reasons for the denial of their
claim. These effects would, in turn, diminish delays in
the proceedings, discourage arbitrary refusal of bona
fide claims and narrow the legal issues which were
to be contested.’’ (Internal quotation marks omitted.)
Chase v. State, 45 Conn. App. 499, 503, 696 A.2d 1299
(1997). One treatise has observed that ‘‘[a] Motion to
Preclude acts as a statutorily created waiver mecha-
nism that requires the [commissioner] to forbid an
employer/insurer from raising defenses to its liability
for an ostensibly compensable injury if a Form 43 dis-
claimer is not submitted within 28 days of the filing of
a suitable Form 30C.’’ (Emphasis added.) 2 A. Sevarino,
Connecticut Workers’ Compensation After Reform (J.
Passaretti ed., 6th Ed. 2014) § 5.14, p. 688.
This court has noted that ‘‘[i]n deciding a motion to
preclude, the commissioner must engage a two part
inquiry. First, he must determine whether the employ-
ee’s notice of claim is adequate on its face. See General
Statutes § 31-294c (a). Second, he must decide whether
the employer failed to comply with § 31-294c either by
filing a notice to contest the claim or by commencing
payment on that claim within twenty-eight days of the
notice of claim. See General Statutes § 31-294c (b). If
the notice of claim is adequate but the employer fails
to comply with the statute, then the motion to preclude
must be granted.’’ Callender v. Reflexite Corp., 137
Conn. App. 324, 338, 49 A.3d 211, cert. granted, 307
Conn. 915, 54 A.3d 179 (2012) (appeal withdrawn Sep-
tember 25, 2013). If the commissioner grants the motion
to preclude, then ‘‘the employer is precluded from con-
testing either the compensability of its employee’s
claimed injury or the extent of the employee’s resulting
disability.’’ Id., 334; see also Mehan v. Stamford, supra,
127 Conn. App. 630 (employer divested of right to con-
test liability for claim following granting of motion to
preclude).11
We now return to the specifics of the present case.
The commissioner found that the plaintiff timely filed
notice of his claim of a compensable injury via the form
30C on June 28, 2000. See General Statutes § 31-294c
(a). The defendant did not file its form 43, contesting
its liability to pay compensation for the plaintiff’s injury,
until August 3, 2000. The defendant, therefore, failed
to comply with the mandate of § 31-294c (b) because
its form 43 was not filed within twenty-eight days of
receiving written notice of the claim.12 See Wiblyi v.
McDonald’s Corp., 168 Conn. App. 77, 91, A.3d
(2016).
The plaintiff did not file his motion to preclude until
February 25, 2010, approximately nine and one-half
years after the filing of the defendant’s form 43. In
its objection to the motion to preclude, the defendant
argued, inter alia, that the plaintiff was barred by laches
from proceeding with the motion to preclude. Specifi-
cally, it claimed that there had been an inexcusable
delay of nearly ten years and that it was prejudiced as
a result of that delay. The commissioner denied the
motion to preclude on the basis of laches; the board
disagreed and found that this equitable doctrine did not
apply within the statutory framework of a motion to
preclude. We agree with the board.
A brief explanation of laches will facilitate our analy-
sis. In John H. Kolb & Sons, Inc. v. G & L Excavating,
Inc., 76 Conn. App. 599, 612–13, 821 A.2d 774, cert.
denied, 264 Conn. 919, 828 A.2d 617 (2003), we
explained that ‘‘[t]he defense of laches, if proven, bars
a plaintiff from seeking equitable relief in a case in
which there has been an inexcusable delay that has
prejudiced the defendant. First, there must have been
a delay that was inexcusable, and, second, that delay
must have prejudiced the defendant.’’ (Internal quota-
tion marks omitted.) We further noted that there must
be unreasonable, inexcusable and prejudicial delay for
the defense to apply. Id., 613. We also stated that ‘‘[a]
laches defense is not . . . a substantive right that can
be asserted in both legal and equitable proceedings.
Laches is purely an equitable doctrine, is largely gov-
erned by the circumstances, and is not to be imputed
to one who has brought an action at law within the
statutory period. . . . It is an equitable defense
allowed at the discretion of the trial court in cases
brought in equity.’’ (Emphasis in original; internal quo-
tation marks omitted.) Id.; see also Fromm v. Fromm,
108 Conn. App. 376, 385, 948 A.2d 328 (2008) (doctrine
of laches functions in part as kind of flexible statute
of limitations).
Our Supreme Court recently has observed that the
defense of laches has only a limited applicability. Doe
v. Hartford Roman Catholic Diocesan Corp., 317 Conn.
357, 399, 119 A.3d 462 (2015). In that case, the court
concluded that laches did not apply to actions at law
brought within the statutory time period. Id., 400; see
also Florian v. Lenge, 91 Conn. App. 268, 283, 880 A.2d
985 (2005) (laches not available in action at law and in
absence of cause of action for equitable relief, trial
court properly determined that laches not available as
defense). Our Supreme Court reasoned that ‘‘[t]o import
laches as a defense to actions at law would pit the
legislative value judgment embodied in a statute of limi-
tations . . . against the equitable determinations of
individual judges. Judges could disallow claims that the
legislature had already determined were timely brought.
. . . Thus to import laches as a defense to actions of
law would alter the balance of power between legisla-
tures and courts regarding the timeliness of claims.’’
(Internal quotation marks omitted.) Doe v. Hartford
Roman Catholic Diocesan Corp., supra, 401–402. On
the basis of separation of powers and administrative
concerns, our Supreme Court agreed that the distinc-
tion between legal and equitable claims was ‘‘ ‘sound’ ’’
and that laches did not apply to claims at law. Id., 402.
It is well recognized in our law that the workers’
compensation system is derived exclusively from stat-
ute. Discuillo v. Stone & Webster, 242 Conn. 570, 576,
698 A.2d 873 (1997); see also Kuehl v. Z-Loda Systems
Engineering, Inc., 265 Conn. 525, 538, 829 A.2d 818
(2003); Cantoni v. Xerox Corp., 251 Conn. 153, 159,
740 A.2d 796 (1999); Fantasia v. Milford Fastening
Systems, 86 Conn. App. 270, 279, 860 A.2d 779 (2004),
cert. denied, 272 Conn. 919, 866 A.2d 1286 (2005). We
iterate that a motion to preclude, in the context of
workers’ compensation cases, is a statutorily created
waiver mechanism that, following an employer’s failure
to comply the requirement of § 31-294c (b), bars that
employer from contesting the compensability of its
employee’s claimed injury or the extent of the employ-
ee’s resulting disability. See 2 A. Sevarino, supra, § 5.14,
p. 688; see also Callender v. Reflexite Corp., supra, 137
Conn. App. 338; Walter v. State, 63 Conn. App. 1, 10–11,
774 A.2d 1052, cert. denied, 256 Conn. 930, 776 A.2d
1148 (2001). Mindful of our Supreme Court’s analysis
in Doe v. Hartford Roman Catholic Diocesan Corp.,
supra, 317 Conn. 400–402, we agree with the board’s
conclusion that laches does not apply to a motion to
preclude filed pursuant § 31-294c (b). The limited appli-
cability of this equitable defense does not extend to a
statutorily created mechanism found in a system
derived exclusively from our statutes.
Although not directed specifically to the area of work-
ers’ compensation law, our Supreme Court also cau-
tioned against pitting the equitable determinations of
judges against the value judgment of the legislature.
Id., 401. We recognize that our legislature has not estab-
lished a time period within which a motion to preclude
must be filed. Nevertheless, our courts consistently
have recognized the prerogative of the legislature to
set the parameters in this area of the law. As a result
of the statutory nature of the workers’ compensation
laws, ‘‘policy determinations as to what injuries are
compensable and what jurisdictional limitations apply
thereto are for the legislature, not the judiciary or the
board, to make.’’ (Internal quotation marks omitted.)
Stickney v. Sunlight Construction, Inc., 248 Conn. 754,
761, 730 A.2d 630 (1999); see also Leonetti v. MacDer-
mid, Inc., supra, 310 Conn. 217; Matey v. Estate of
Dember, 256 Conn. 456, 481–82, 774 A.2d 113 (2001).
For example, we recently declined ‘‘to carve out
another exception to the notice of claim requirements
of § 31-294c (a) because we believe that the legislature,
rather than this court, is the proper forum through
which to create any additional exceptions . . . .’’ Izik-
son v. Protein Science Corp., 156 Conn. App. 700, 713,
115 A.3d 55 (2015); see also Dowling v. Slotnik, 244
Conn. 781, 811, 712 A.2d 396 (Supreme Court consis-
tently has eschewed recognizing exception to act
because it represents complex and comprehensive stat-
utory scheme balancing rights and claims of employer
and employee arising out of work-related personal injur-
ies; therefore, responsibility for exceptions to act
belongs to legislature and not courts), cert. denied sub
nom. Slotnik v. Considine, 525 U.S. 1017, 119 S. Ct.
542, 142 L. Ed. 2d 451 (1998); see generally Discuillo
v. Stone & Webster, supra, 242 Conn. 577 (although
Supreme Court did not disagree with employee’s analy-
sis of equities, it was not free to transcend jurisdictional
limits of act). Consistent with these principles, we will
not inject the equitable doctrine of laches into the
framework that has been established by our legislature
and does not contain a time period in which a motion
to preclude must be filed.
We also are guided by our Supreme Court’s recent
decision in McCullough v. Swan Engraving, Inc., supra,
320 Conn. 299. In that case, the issue was whether the
widow of an employee (dependent) was required to file
a separate timely notice of claim for survivor’s benefits
under the act when the employee previously had filed
a timely claim for disability benefits. Id., 301. The claim
for survivor’s benefits was filed fifty-five weeks after
the death of the employee. Id., 302. The board concluded
that the act required the dependent to file a separate
claim for survivor’s benefit and that her claim was not
filed timely. Id., 303–304.
Our Supreme Court noted that there was no statutory
language ‘‘creating a statute of limitations for a claim
for survivor’s benefits or language requiring that a
dependent file a separate claim for survivor’s benefits
if the employee filed a timely claim for benefits during
his or her lifetime. If the legislature had intended to
require such a filing and to provide a statute of limita-
tions period, it could have done so. In the face of a
legislative omission, it is not our role to engraft language
onto the statute to require a dependent to file a claim
for survivor’s benefits in such a situation.’’ Id., 310.
Finally, it reasoned that if it recognized this limitation
not set forth by the legislature, the court risked ‘‘denying
the beneficent purposes of the act.’’ Id., 311.
Likewise, we will not recognize, in the absence of
legislative action, a time limitation within which an
employee, such as the plaintiff, must file a motion to
preclude. In light of the precedent set forth previously,
and the intricate and comprehensive statutory scheme
promulgated by the legislature, this court declines to
insert a time limitation to an employee’s ability to file
a motion to preclude.
Finally, we briefly address the defendant’s argument
regarding the equitable nature of workers’ compensa-
tion. General Statutes § 31-298 provides in relevant part:
‘‘In all cases and hearings under the provisions of this
chapter, the commissioner shall proceed, so far as pos-
sible, in accordance with the rules of equity. He shall
not be bound by the ordinary common law or statutory
rules of evidence or procedure, but shall make inquiry,
through oral testimony, deposition testimony or written
and printed records, in a manner that is best calculated
to ascertain the substantial rights of the parties and
carry out the provisions and intent of this chapter. . . .’’
This statute, however, does not engraft equitable doc-
trines, such as a laches, onto all aspects of the act. Our
Supreme Court has interpreted § 31-298 ‘‘to cover only
the manner in which hearings are conducted.’’ Leonetti
v. MacDermid, Inc., supra, 310 Conn. 218; see also
O’Neil v. Honeywell, Inc., 66 Conn. App. 332, 340, 784
A.2d 428 (2001), cert. denied, 259 Conn. 914, 792 A.2d
852 (2002). Accordingly, we reject the defendant’s claim
that the equitable nature of the act requires the applica-
tion of laches. We conclude that the board properly
determined, as a matter of law, that the equitable doc-
trine of laches did not apply to the plaintiff’s motion
to preclude. Any such time limitation must originate
with our legislature, not the courts.
The decision of the Workers’ Compensation Review
Board is affirmed.
In this opinion the other judges concurred.
1
Additional defendants on appeal are Bridgestone Firestone and Gallagher
Bassett Services, the defendant’s insurer. For simplicity, we refer to McDon-
ald’s Corporation as the defendant in this appeal.
2
General Statutes § 31-301b provides that ‘‘[a]ny party aggrieved by the
decision of the Compensation Review Board upon any question or questions
of law arising in the proceedings may appeal the decision of the Compensa-
tion Review Board to the Appellate Court, whether or not the decision is
a final decision within the meaning of section 4-183 or a final judgment
within the meaning of section 52-263.’’ This court, therefore, has jurisdiction
to review this case.
We note that although § 31-301b has been amended since the events at
issue here, that amendment is not relevant to this appeal. For convenience,
we refer to the current revision of § 31-301b.
3
A form 30C is the form ‘‘prescribed by the workers’ compensation com-
mission of Connecticut for use in filing a notice of claim under the [Workers’
Compensation Act, General Statutes § 31-275 et seq.].’’ Russell v. Mystic
Seaport Museum, Inc., 252 Conn. 596, 619 n.11, 748 A.2d 278 (2000); see
also Gamez-Reyes v. Biagi, 136 Conn. App. 258, 270, 44 A.3d 197 (well
established that plaintiff has burden of proving that he is employee of
employer from whom he seeks compensation and properly must initiate
claim under General Statutes § 31-294c), cert. denied, 306 Conn. 905, 52
A.3d 731 (2012).
4
General Statutes § 31-294c (a) provides in relevant part: ‘‘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 . . . .’’
We note that although § 31-294c has been amended since the events at
issue here, that amendment is not relevant to this appeal. For convenience,
we refer to the current revision of § 31-294c.
5
‘‘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.’’ (Internal quotation marks omitted.) Lamar v. Boehringer
Ingelheim Corp., 138 Conn. App. 826, 828 n.2, 54 A.3d 1040, cert. denied,
307 Conn. 943, 56 A.3d 951 (2012).
6
‘‘A workers’ compensation claimant must prove five elements to establish
a prima facie case under the Workers’ Compensation Act (act), General
Statutes § 31-275 et seq.: (1) the workers’ compensation commission has
jurisdiction over the claim; (2) the claim has been timely brought by filing
a claim of notice within the requisite time period or by coming within one
of the exceptions thereto; (3) the claimant is a qualified claimant under the
act; (4) the respondent is a covered employer under the act; and (5) the
claimant has suffered a personal injury as defined by the act arising out
of and in the course of employment. . . . A valid disclaimer contests one
or more of the elements of the plaintiff’s prima facie case.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.) Riveiro v. Fresh
Start Bakeries, 159 Conn. App. 180, 189, 123 A.3d 35, cert. denied, 319 Conn.
930, 125 A.3d 205 (2015).
7
See Wiblyi v. McDonald’s Corp., 168 Conn. App. 77, 80, A.3d
(2016).
8
We note that the finder of fact determines whether a party is guilty of
laches. See, e.g., TD Bank, N.A. v. Doran, 162 Conn. App. 460, 466, 131 A.3d
288 (2016); Florian v. Lenge, 91 Conn. App. 268, 281, 880 A.2d 985 (2005).
9
The plaintiff also appealed from the decision of the board. See Wiblyi
v. McDonald’s Corp., 168 Conn. App. 77, A.3d (2016). He claimed
that the board improperly reconsidered the commissioner’s findings that a
‘‘form 30C was filed upon the [defendant] . . . according to Connecticut
law such that the 28 [day] rule to file a denial was triggered . . . .’’ (Internal
quotation marks omitted.) Id., 81–82. In a separate decision released today,
we concluded that the commissioner’s findings were not inconsistent and
were supported by the record, and that the board improperly reassessed
the credibility of the witnesses and weighed the evidence. Id., 84. Accord-
ingly, we reversed the decision of the board. Id., 92.
10
We previously recited our Supreme Court explanation’s that ‘‘the portion
of [§ 31-294c (b)] providing for a conclusive presumption of liability in the
event of the employer’s failure to provide timely notice was intended to
correct some of the glaring inequities of the workers’ compensation system,
specifically, to remedy the disadvantaged position of the injured employee
. . . .’’ (Internal quotation marks omitted.) Lamar v. Boehringer Ingelheim
Corp., supra, 138 Conn. App. 840; see also Leonetti v. MacDermid, Inc.,
supra, 310 Conn. 209 (‘‘[o]ne reason for the existence of the act is the long
recognized disparity in bargaining power that exists between an employee
and his employer’’).
11
Our Supreme Court has described this rule as a ‘‘harsh’’ penalty but
one that results in a fair and just result. Harpaz v. Laidlaw Transit, Inc.,
286 Conn. 102, 130, 942 A.2d 396 (2008). It further recognized, however,
that ‘‘[a]n employer readily can avoid the conclusive presumption by either
filing a timely notice of contest or commencing timely payment of compensa-
tion with the right to repayment if the employer prevails. Should the employ-
er’s timely and reasonable investigation reveal that an issue regarding the
extent of disability has not yet manifested, the employer still can preserve
its right to contest that issue at some later point in time simply by paying
the compensation due under the claim, even if all that is due is payment of
medical bills.’’ (Internal quotation marks omitted.) Id., 130–31.
Additionally, we have noted that an equally severe result will befall an
employee who fails to file his or her claim for workers’ compensation
benefits within the statutorily mandated time period. ‘‘While preclusion has
been described as a ‘harsh remedy,’ it is no less harsh than the strict statutory
time period within which the employee must file his claim and notify his
employer of the claim or otherwise relinquish it.’’ Callender v. Reflexite
Corp., supra, 137 Conn. App. 334 n.14.
12
There is nothing in the record to suggest that the defendant commenced
payment within the twenty-eight day time period set forth in § 31-294c (b).