A Defective, Preemptive Form 36 Bars Motion to Preclude



Robert Tanguay v. Rent-A-Center, Inc. & Sedgwick Claims Management Services


 5714 CRB-8-11-12, 800172710




The Compensation Review Board recently overturned a trial commissioner’s ruling in which the commissioner granted the claimant’s motion to preclude based on his claim that the workers’ compensation carrier failed to file a timely contest of claim, also known as a Form 43. Prior to the claimant having filed a Form 30C, the respondent filed a Form 43, disclaiming an injury that occurred to the claimant’s “left” knee, indicating that the claimant had suffered from a preexisting condition. Several months later, the claimant filed a Form 30C, alleging an injury to his right knee, reciting the same date of injury as had been stated on the Form 43. The respondent did not file a separate Form 43 to respond to the claimant’s 30C until after the claimant filed a motion to preclude approximately three months after having filed the Form 30C. The trial commissioner determined that the Form 43 was defective in terms of naming the wrong knee, and as such, its first Form 43 “did not substantially comply with the strictures of §31-294c(b),” and thereby granted the motion.




The Compensation Review Board reversed the trial commissioner, claiming that the determination of whether a Form 43 is sufficient to communicate a respondent’s intent to contest a liability for a specific element of the claimant’s, is a question of law rather than fact. As such, the CRB is not second-guessing the trial commissioner’s factual determination in finding that the trial commissioner had come to the wrong conclusion of law. Specifically, the respondent could file a preemptive disclaimer of liability if it appears that a workers’ compensation claim is imminent. It further held that “this commission is loathe to order it (preclusion) under circumstances where the underlying basis for preclusion appears to be allegations of technical deficiencies and not substantive deficiencies.” The CRB held that it would not exalt form over substance to inflict the harsh penalty of granting a motion to preclude.


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.