The CRB thwarts an attempted end run around a Motion To Preclude

Volta v. United Parcel Service, 5612 CRB-7-10-12 (January 31, 2012)

 The claimant filed a Form 30C alleging that he had sustained repetitive trauma injuries to both feet. The Respondents failed to timely file a Form 43 or to commence payment of benefits within 28 days. The claimant filed a Motion to Preclude which was granted. During the trial the claimant offered evidence in the form of the treating physician’s testimony, that the claimant had injured his feet while he was employed by the Respondent. The Respondent offered testimony in the form of a records review, that the injuries were sustained prior to his employment with the respondent. The Commissioner found the respondent’s expert credible, and as such denied the claimant’s Motion to Preclude and dismissed the repetitive trauma claim.

 The CRBthwarted this attempted end run around the conclusive presumption accorded to a Motion to Preclude that has been granted by a careful analysis of Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102 (2008) and Donahue v. Veridiem, Inc. 291 Conn. 537 (2009). By stating in its 30C the claimant’s last date of injurious exposure, the claimant fairly apprised the respondent of his alleged claim to allow the employer to make a timely investigation of the claim.

 The CRBreiterated the law of Harpaz and Donahue which relegates the respondent to the status of a potted wall plant, yet emphasized that the claimant still must enter a prima facie case, which in footnote 8, it strongly suggests was accomplished in this case. In addition, Harpaz and Donahue allow the Commissioner to cross-examine the claimant and claimant’s witnesses when the claimant is trying to establish its prima facie case.

 Had the respondents timely filed a disclaimer, then the arguments advanced by the respondents in this case, and the evidence adduced might well have led to a different conclusion. TheCRBreversed and remanded the trial Commissioner’s dismissal permitting the claimant to attempt to establish his prima facie case, without any evidence introduced by the respondent, subject to the cross-examination by the Commissioner.

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

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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.