Sabrina M. Monaco – Selmer vs. Total Customer Services and Travelers Indemnity Company (What Constitutes Commencement of Payment to Toll Preclusion under 31-294c(b)


In this case the claimant filed a 30C on April 13, 2010 and the respondent’s failed to file a Form 43 until June 3, 2010, more than 28 days after the Form 30C had been filed. The respondents claim that because they had made two payments of $150.00 for two weeks within the period prior to filing the Form 43, that they had met the statutory threshold stated in §31-294c(b). The trial commissioner held that the because the respondents had failed to calculate an average weekly wage pursuant to the Administrative Regulation §31-296-2 or to provide the claimant with any written explanation as to how they arrived at the $150.00 payments that they made during that period of time, they had not “commenced” payment within the 28 day period so as to toll their obligation to file a disclaimer. The CRB found that the respondents apparently interpreted the word “commence” to mean that any payment to the claimant following the service of a Form 30C serves to toll the remedy of preclusion. Citing Harpaz, the CRB held that a “respondent enjoys safe harbor from preclusion not by virtue of making a single payment in lieu of filing a disclaimer, but may only preserve its rights if ‘it timely paid compensation.’”

The take away in this case is that if the respondent is going to commence payments within the 28 day period, it must articulate a basis for its payments, and make them consistently.