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MICHAEL FERRARO v. RIDGEFIELD EUROPEAN
MOTORS, INC., ET AL.
(SC 19043)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued February 24—officially released September 23, 2014
Elycia Solimene, with whom, on the brief, was
Sharon R. McLoughlin, for the appellants (named
defendant et al.).
Lucas D. Strunk, for the appellees (defendant
AmGuard Insurance Company et al.).
Jason K. Matthews, for the appellees (defendant
American Alternative Insurance Company et al.).
Opinion
ESPINOSA, J. The issue we must resolve in this work-
ers’ compensation case is whether, pursuant to General
Statutes § 31-299b,1 interest can be assessed against a
prior insurance company if such insurer agrees to its
apportionment liability after formal proceedings have
concluded, but before the Workers’ Compensation
Commissioner (commissioner) issues his findings and
order. In the underlying workers’ compensation case,
the plaintiff, Michael Ferraro (claimant), sought com-
pensation for hand, arm, and neck injuries that he sus-
tained while employed with the defendant Ridgefield
European Motors, Inc. (Ridgefield). The insurer for
Ridgefield at the time the claimant filed his claim, the
defendant AmGuard Insurance Company (AmGuard),
entered into a voluntary agreement on the claim, and
subsequently sought apportionment against Ridge-
field’s prior insurers, the defendant Republic-Franklin
Insurance Company (Republic-Franklin) and the defen-
dant American Alternative Insurance Company (Ameri-
can Alternative). American Alternative settled its
apportionment claim prior to the commencement of
formal proceedings before the Workers’ Compensation
Commission (commission), but Republic-Franklin did
not agree to its apportionment liability until just before
the close of evidence, after the third formal hearing.
Thereafter, the commissioner issued his findings and
orders, over the objection of Republic-Franklin, and
ordered Republic-Franklin to pay interest pursuant to
§ 31-299b. Republic-Franklin appealed to the Workers’
Compensation Review Board (board), which affirmed
the finding of the commissioner. Republic-Franklin
appealed,2 arguing that interest should not have been
assessed against it because: (1) the statutory require-
ments for ordering interest were not met; and (2) even
if the statutory requirements were met, the interest
order was not valid because it was not issued within
a reasonable period of time after the issuance of the
compensation award. We conclude that the plain and
unambiguous language of § 31-299b permits an award
of interest against a prior insurer if the apportionment
claim has been submitted to a commissioner after the
conclusion of formal hearings. We also conclude that
Republic-Franklin failed to preserve its claim that the
commissioner improperly awarded interest because the
findings and orders were not issued within a reasonable
period of time after the issuance of the compensation
award. Accordingly, we affirm the decision of the board.
The record reveals the following undisputed facts
and relevant procedural history. The claimant was
employed by Ridgefield as a ‘‘heavy hit’’ motor vehicle
mechanic from 1998 until 2003.3 In November, 2001, he
began experiencing tingling and numbness in his hands
and arms. His primary care physician suspected carpal
tunnel syndrome, and after a subsequent evaluation and
further diagnostic studies, another physician recom-
mended that he undergo carpal tunnel decompression.
The claimant consequently filed a workers’ compensa-
tion claim alleging carpal tunnel syndrome caused by
repetitive and cumulative trauma, with a date of injury
of November 1, 2001 (carpal tunnel claim).
In early 2002, the claimant was referred to Alan S.
Waitze, a neurosurgeon. After an initial consultation
during which the claimant primarily complained of neck
pain, arm pain and bilateral hand pain, and during which
an MRI scan of the claimant was performed, Waitze
informed the claimant that the MRI had revealed spinal
stenosis4 with resultant spinal compressions, and
opined that his spinal problems were likely responsible
for his arm and hand problems as well as his carpal
tunnel syndrome. Accordingly, Waitze recommended
that the claimant undergo a cervical discectomy,
decompression and fusion, and that if the claimant con-
tinued to experience symptoms in his hands after the
surgery, he should address the carpal tunnel syndrome.
Following his evaluation by Waitze, the claimant filed
a second workers’ compensation claim, with an injury
date of June 26, 2002, alleging injury to multiple body
parts due to repetitive strain (cervical spine claim).
The claimant and AmGuard entered into a voluntary
agreement on the cervical spine and carpal tunnel
claims, which was approved in June, 2004 (voluntary
agreement).
AmGuard requested a formal hearing on its appor-
tionment claim against Republic-Franklin and American
Alternative for the cervical spine claim in August, 2009.
Instead, a preformal hearing was held in September,
2009, during which AmGuard, Republic-Franklin and
American Alternative agreed to proceed on the appor-
tionment of the cervical spine claim. Following the pre-
formal hearing, in a letter to AmGuard, dated September
25, 2009, American Alternative agreed to accept its
apportionment share of 26.67 percent, based on its cov-
erage dates.
The first formal hearing took place on November 16,
2009. At the start of the hearing, American Alternative
stated on the record that it already had accepted its
apportionment share of 26.67 percent, pending the out-
come of the formal hearings, and that the agreement
was without prejudice and could change. AmGuard
relayed to the commissioner a stipulation regarding the
coverage dates for the three insurers and then offered
a number of exhibits with respect to the cervical spine
claim. At the conclusion of the hearing, Republic-Frank-
lin asked that both the carpal tunnel and cervical spine
claims be heard, in the interest of judicial economy.
AmGuard observed that although at the preformal hear-
ing the parties had agreed to proceed solely on the
cervical spine claim, it did not object to including the
carpal tunnel claim since the commissioner had opened
both claims at the start of the hearing and AmGuard
anticipated that the report for the physician who had
performed the carpal tunnel surgeries would be com-
pleted by the next hearing date. American Alternative
clarified that its acceptance of apportionment liability
related to the cervical spine claim only and that it would
evaluate whether to accept its apportionment share
with respect to the carpal tunnel claim when it received
the physician’s report.
At the second formal hearing, which occurred on
January 19, 2010, a witness for AmGuard testified and
additional exhibits were submitted into evidence. After
the testimony, American Alternative represented that
it was in negotiations with AmGuard to resolve the
carpal tunnel claim and that they hoped to resolve it
prior to the closure of the record. AmGuard represented
that it was not seeking apportionment against Republic-
Franklin for the carpal tunnel claim and that it would
not need to do so if AmGuard reached an agreement
with American Alternative as to that claim.5
At the third formal hearing, held on September 27,
2010, the parties agreed that although the notice for
the hearing did not so indicate, the issue to be addressed
was apportionment liability. The parties then submitted
the depositions of various physicians who had exam-
ined the claimant, as well as the claimant’s deposition
that had been taken by Republic-Franklin in the time
between the second and third formal hearing, and the
matter was set for a pro forma hearing date of October
29, 2010, for the filing of briefs and proposed findings.
After the third hearing, in a letter to the commissioner
dated October 21, 2010, Republic-Franklin represented
that it had agreed to accept the apportionment share
requested by AmGuard, but that AmGuard still wished
to seek interest pursuant to § 31-299b. Republic-Frank-
lin maintained that an order from the commission would
be moot and unnecessary, as it had agreed to the full
requested percentage, but requested that if the commis-
sion determined that an order was necessary, the record
should be reopened to allow for the presentment of
additional evidence on the issue of interest. AmGuard
responded to the commission by letter dated October
22, 2010, disputing Republic-Franklin’s representation
about the agreement and objecting to a reopening of
the record. Specifically, AmGuard represented that
Republic-Franklin had informed it on October 14, 2010,
that Republic-Franklin would be willing to accept the
requested apportionment share only if AmGuard waived
any interest claims. AmGuard indicated that it was not
willing to waive interest claims, in part, because of
the extent of the proceedings. AmGuard stated that
Republic-Franklin’s October 21 letter to the commis-
sioner was the first acknowledgment of its acceptance
of apportionment liability, and was not communicated
to AmGuard directly. Moreover, AmGuard contended,
Republic-Franklin’s October 21 letter was a ‘‘blatant
attempt to avoid the mandatory interest under § 31-
299b’’ and the record did not need to be reopened
because the mandatory interest claim was not a pen-
alty provision.
Republic-Franklin subsequently informed the com-
missioner by letter dated October 22, 2010, that it
had agreed to accept its 66.67 percent apportion-
ment liability on the cervical spine claim and that it
would issue payment once it had received an updated
accounting. Moreover, Republic-Franklin maintained
that AmGuard’s claim that it was entitled to interest
notwithstanding Republic-Franklin’s agreement to its
apportionment share raised a new issue, not addressed
by the evidence presented at the formal hearings.
Accordingly, Republic-Franklin again requested that the
record be reopened.
By letter to the commissioner dated October 22, 2010,
AmGuard responded to Republic-Franklin, stating that
it would provide an updated accounting, and ques-
tioning the need for evidence in a case with mandatory
interest. AmGuard contended that an order would need
to be issued to memorialize the percentages of liability
and establish the extent of interest owed. It further
declared that although legal argument would be appro-
priate, absent an offer of relevant evidence that could
not have been offered during the prior hearing,
AmGuard would object to reopening the record. On
October 28, 2010, the commission issued a notice of a
formal hearing to address the apportionment of liability
and interest issues that had been raised by Republic-
Franklin and AmGuard. The hearing was held on
December 1, 2010.
Following the hearing, the commissioner issued his
findings. He found that because prior to the commence-
ment of formal proceedings American Alternative had
accepted its apportionment share of 26.67 percent, the
sole purpose of the formal hearings was to establish
Republic-Franklin’s apportionment share of the cervical
spine claim. The commissioner further found that after
the conclusion of three hearings, but prior to the dead-
line for briefs and proposed findings, Republic-Franklin
acknowledged responsibility for its apportionment
share of 66.67 percent and reimbursed AmGuard. He
also found that although AmGuard acknowledged that
all parties had agreed on their respective apportionment
percentages and AmGuard had been reimbursed, it
sought interest from Republic-Franklin. The commis-
sioner concluded that Republic-Franklin was responsi-
ble for 66.67 percent of the cervical spine claim,
American Alternative was responsible for 26.67 percent
of the cervical spine claim and AmGuard was responsi-
ble for 6.66 percent of the cervical spine claim. He
further ordered that Republic-Franklin pay AmGuard
interest.
Thereafter, Republic-Franklin filed a motion to cor-
rect the findings and order, which was granted in part,
and a motion for articulation, which was denied. Repub-
lic-Franklin appealed the commissioner’s findings and
order, as well as the denials of its motions to correct
and for articulation, to the board, which affirmed the
decision of the commissioner. This appeal followed.
On appeal, Republic-Franklin challenges the order
of interest on two bases. First, it argues that the
commissioner’s order of interest was improper because
pursuant to § 31-299b, it is the determination of appor-
tionment liability, rather than the commencement of
formal proceedings, that authorizes the commissioner
to award interest. Republic-Franklin argues that
because all of the determinations that the commissioner
was required to make were resolved through agreement
by the parties, the statutory prerequisites had not been
met, and the award of interest was improper.6 Moreover,
Republic-Franklin asserts that an award of interest that
would be triggered only after the commencement of
formal proceedings would create bad public policy
because it would encourage current insurers to delay
prosecution of apportionment claims to take advantage
of a 12 percent interest rate. Second, even if this court
concludes that the statutory prerequisites were satis-
fied, Republic-Franklin argues that the award of interest
should be reversed because the lapse in time between
the approval of the voluntary agreement between the
claimant and AmGuard in 2004, and the commissioner’s
decision on the apportionment claim, which occurred
in 2011, was not reasonable. Although acknowledging
that § 31-299b does not envision a statute of limitations
on apportionment claims, Republic-Franklin, neverthe-
less, maintains that the three year delay between the
approval of the voluntary agreement in 2004, and
AmGuard’s initial claim for apportionment in 2007, and
the two year delay between the first informal hearing
in 2007, and the commencement of formal proceedings
in 2009, is unreasonable and inconsistent with the
board’s implied understanding of the time that is neces-
sary to present a claim for apportionment in a formal
proceeding. We reject both claims advanced by Repub-
lic-Franklin and address each in turn.
‘‘As a threshold matter, we set forth the standard of
review applicable to workers’ compensation appeals.
The principles that govern our standard of review in
workers’ compensation appeals are well established.
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.’’ (Internal quotation marks omitted.) Stec
v. Raymark Industries, Inc., 299 Conn. 346, 355, 10
A.3d 1 (2010). ‘‘[Moreover, it] is well established that
[a]lthough not dispositive, we accord great weight to
the construction given to the workers’ compensation
statutes by the commissioner and review board. . . .
Cases that present pure questions of law, however,
invoke a broader standard of review than is ordinarily
involved in deciding whether, in light of the evidence,
the agency has acted unreasonably, arbitrarily, illegally
or in abuse of its discretion. . . . We have determined,
therefore, that the traditional deference accorded to an
agency’s interpretation of a statutory term is unwar-
ranted when the construction of a statute . . . has not
previously been subjected to judicial scrutiny [or to]
. . . a governmental agency’s time-tested interpreta-
tion . . . .’’ (Internal quotation marks omitted.) Cham-
bers v. Electric Boat Corp., 283 Conn. 840, 844, 930 A.2d
653 (2007). There has been no prior judicial or time-
tested interpretation of the language at issue in the
present case. Accordingly, our review is plenary. See
Secretary of the Office of Policy & Management v.
Employees’ Review Board, 267 Conn. 255, 262, 837 A.2d
770 (2004).
I
We first address Republic-Franklin’s claim that the
commissioner failed to satisfy the statutory prerequi-
sites of § 31-299b, thereby prohibiting an order of inter-
est, because the agreement between Republic-Franklin
and AmGuard rendered moot any need for a determina-
tion by the commissioner. On the basis of our interpreta-
tion of § 31-299b, we conclude that the award of interest
against Republic-Franklin was proper. As we will
explain, the apportionment statute clearly and unambig-
uously requires that the commissioner make findings
after the evidence has been submitted to him after the
conclusion of formal proceedings. Because Republic-
Franklin does not dispute the commissioner’s factual
findings that the purpose of the formal hearings was
to decide only the apportionment liability of Republic-
Franklin, and the parties had submitted all of the evi-
dence to the commissioner for his consideration, the
commissioner properly made findings and ordered
interest against Republic-Franklin.
This claim presents an issue of statutory interpreta-
tion, over which we exercise plenary review. See Secre-
tary of the Office of Policy & Management v.
Employees’ Review Board, supra, 267 Conn. 262. ‘‘When
interpreting a statute, [o]ur fundamental objective is to
ascertain and give effect to the apparent intent of the
legislature. . . . The meaning of a statute shall, in the
first instance, be ascertained from the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not
be considered. General Statutes § 1-2z. . . . However,
[w]hen a statute is not plain and unambiguous, we also
look for interpretive guidance to the legislative history
and circumstances surrounding its enactment, to the
legislative policy it was designed to implement, and to
its relationship to existing legislation and common law
principles governing the same general subject matter
. . . . A statute is ambiguous if, when read in context,
it is susceptible to more than one reasonable interpreta-
tion.’’ (Citation omitted; internal quotation marks omit-
ted.) Tuxis Ohr’s Fuel, Inc. v. Administrator,
Unemployment Compensation Act, 309 Conn. 412, 421–
22, 72 A.3d 13 (2013).
As required by § 1-2z, we begin with the statutory
language. Section 31-299b provides in relevant part: ‘‘If
an employee suffers an injury or disease for which
compensation is found by the commissioner to be pay-
able according to the provisions of this chapter, the
employer who last employed the claimant prior to the
filing of the claim, or the employer’s insurer, shall be
initially liable for the payment of such compensation.
The commissioner shall, within a reasonable period of
time after issuing an award, on the basis of the record
of the hearing, determine whether prior employers, or
their insurers, are liable for a portion of such compensa-
tion and the extent of their liability. If prior employers
are found to be so liable, the commissioner shall order
such employers or their insurers to reimburse the ini-
tially liable employer or insurer according to the propor-
tion of their liability. Reimbursement shall be made
within ten days of the commissioner’s order with inter-
est, from the date of the initial payment, at twelve per
cent per annum. . . .’’
The statutory language reveals that in order for inter-
est to be assessed, three prerequisites must be met: (1)
an award of compensation is made to the claimant; (2)
the current employer or employer’s insurer ‘‘shall be
initially liable for the payment of such compensation’’;
and (3) the commissioner, ‘‘within a reasonable period
of time after issuing an award, on the basis of the
record,’’ must make two determinations: (a) the identifi-
cation of prior employers or insurers that are liable for
a portion of the claimant’s compensation; and (b) the
extent of their liability. General Statutes § 31-299b.
Once those requirements have been met, the commis-
sioner ‘‘shall order such [prior] employers or their insur-
ers to reimburse the initially liable employer or insurer’’
and ‘‘[r]eimbursement shall be made within ten days of
the commissioner’s order with interest, from the date
of the initial payment, at twelve per cent per annum.’’
General Statutes § 31-299b.
The plain and unambiguous language of § 31-299b
indicates that the only requirement that addresses a
commissioner’s actions during the adjudication of an
apportionment claim is the third one. Both the first
and second requirements relate to prior proceedings
or agreements that occurred before an apportionment
claim was brought by the initial insurer.7 The plain
meaning of the third requirement unambiguously indi-
cates that the legislature intended that a commissioner
is authorized to make a finding only after meeting two
conditions: a commissioner’s apportionment determi-
nation needs to be made (1) within a reasonable period
of time after the issuance of an award; and (2) on the
record of the hearing.8 Had the legislature intended to
limit a commissioner’s authority to make apportion-
ment liability findings when the parties had reached
an agreement, it could have expressly done so. See
Marchesi v. Board of Selectmen, 309 Conn. 608, 618, 72
A.3d 394 (2013) (‘‘it is a well settled principle of statu-
tory construction that the legislature knows how to
convey its intent expressly . . . or to use broader or
limiting terms when it chooses to do so’’ [citation omit-
ted; internal quotation marks omitted]).
Allowing an agreement between insurers to constrain
a commissioner’s authority to make findings following
a hearing on an apportionment claim would be inconsis-
tent with our jurisprudence addressing a commission-
er’s authority to render a decision in the area of
compensation claims. In Schiano v. Bliss Exterminat-
ing Co., 260 Conn. 21, 25–27, 792 A.2d 835 (2002), the
defendant insurer had failed to make timely disability
payments following a compensation award to the plain-
tiff despite several orders from the commissioner. The
plaintiff sought a 20 percent penalty on the award pursu-
ant to General Statutes § 31-303 for the late payments.9
Id., 27–28. At a hearing on the issue, the defendant
argued that it was not subject to § 31-303. Id., 28. Before
the commissioner’s findings were issued, this court had
issued a decision holding that the defendant was subject
to § 31-303. Id., 28–29. Shortly thereafter, the defendant
issued a check to the plaintiff in an amount equivalent
to a 20 percent penalty on the disability payments, attor-
ney’s fees and interest. Id., 30. The plaintiff subsequently
sent a letter to the commissioner’s office, indicating
that the claim had been settled. Id., 29. The letter was
received at the commissioner’s office on the same day
that the commissioner issued his decision ordering that
the defendant pay the penalty on the disability payment
only. Id. On appeal to the board, the plaintiff claimed
that the commissioner lacked jurisdiction to render a
decision because the claim had been rendered moot
due to the settlement. Id., 31. The board determined
that the claim had not been rendered moot and that
the commissioner had jurisdiction to decide whether
the defendant was required to pay a penalty on attor-
ney’s fees. Id. We agreed with the well reasoned analysis
of the board, which held: ‘‘Under the [Workers’ Compen-
sation Act, General Statutes § 31-275 et seq.], an
agreement between parties concerning the payment of
disability benefits, medical expenses, or attorney’s fees
is subject to the approval of the trial commissioner.
. . . Once the parties have invoked the jurisdiction of
this agency, any resolution of pending issues involving
the payment of compensation must be ratified by the
commissioner in order for it to constitute a binding
judgment. A settlement is not self-actuating, and does
not by its mere existence implicate the trier’s subject
matter jurisdiction. . . . Instead, the parties must pre-
sent their contractual compromise to judicial authority,
so that he or she may review the agreement and con-
sider entering judgment accordingly. . . . This
requires that the parties successfully communicate their
intent to settle the case before the commissioner
releases his decision.’’ (Internal quotation marks omit-
ted.) Id., 32.
Given the fact that a commissioner retains his author-
ity to adjudicate a claim when the parties have come
to an agreement in the context of a penalty for late
compensation payments, it would, indeed, be incongru-
ous to conclude that a commissioner rendering a deci-
sion regarding an apportionment claim, when the
parties have come to a settlement agreement, has
less authority.10
Additionally, our conclusion is consistent with the
board’s interpretation of the purpose of the apportion-
ment statute as expressed in Konovaluk v. Graphite
Die Mold, Inc., No. 4437, CRB 3-01-9 (August 8, 2002).
In that case, the board was required to decide whether
§ 31-299b authorized the reapportionment of an insol-
vent insurer’s share of liability among solvent insurers
that were found to be liable for an apportionment share
of a claim. Id. In doing so, the board observed that § 31-
299b was ‘‘primarily designed to protect the interest of
claimants, but it was consciously constructed to also
allow for an ultimate distribution of liability that would
not place an undue burden on the last insurer on the
risk. Our legislature would not have directed that 12
[percent] interest be paid on reimbursement amounts
if it were indifferent to the ultimate assignment of fiscal
responsibility. Despite the absence of specific statutory
provisions providing for a recalculation of apportion-
ment percentages in the event of insurer insolvency,
the law employs language that allows a commissioner
some leeway to account for anomalies that might arise
in a case.’’ Id. It continued, ‘‘the legislature consciously
chose to adopt language that would allow a commis-
sioner to look at the entire hearing record before decid-
ing what portion of compensation is attributable to a
given employer or insurer. The statute does not limit
each employer/insurer’s liability [to] the portion attrib-
utable only to its corresponding period of coverage,
even if one would expect that this would routinely be
the case. Keeping in mind that our legislature wished
to afford meaningful protection to the reimbursement
rights of the initially liable employer/insurer under § 31-
299b, we are of the opinion that this language should
be construed to allow the trial commissioner to account
for an event such as insurer insolvency in his decision
on reimbursement.’’ Id. In making its determination, the
board in Konovaluk recognized that one of the purposes
of the apportionment statute was to provide meaningful
protection to current insurers that were required to
administer claims once compensability had been estab-
lished and that the legislature intended for the commis-
sioner, after considering the entire hearing record, to
ensure that the current insurer received such pro-
tection.
In the present case, Republic-Franklin does not chal-
lenge the commissioner’s finding that the sole purpose
of the formal hearings was to decide its apportionment
liability. Nor does Republic-Franklin contend that addi-
tional evidence was required to decide the issue or that
the agreement was not a part of the record. Because
formal proceedings were completed, the commissioner
properly made findings, on the basis of the record of
the hearings, of the apportionment liability of Republic-
Franklin. That the commissioner chose to accept the
percentages agreed upon by AmGuard and Republic-
Franklin does not invalidate his authority to make find-
ings.11 Accordingly, we conclude that the existence of
the agreement did not deprive the commissioner of the
authority to make a determination as to apportionment
liability and to award interest.
II
We now turn to Republic-Franklin’s claim that the
commissioner’s order of interest was not made within
a ‘‘reasonable period of time’’ as required by § 31-299b.
Our review of the record reveals that Republic-Franklin
failed to preserve this claim, and, therefore, we decline
to review it.
The following additional procedural history is neces-
sary to resolve this claim. After the agreement on appor-
tionment liability between Republic-Franklin and
AmGuard had been reached, the commissioner held a
fourth formal hearing, on December 1, 2010. At the
hearing, Republic-Franklin did not argue that the award
of interest was not made within a reasonable period of
time. Although it primarily argued that the statutory
requirements had not been met, Republic-Franklin also
contended that insurers were allowed a reasonable
amount of time to investigate claims, that it could pro-
vide evidence of why Republic-Franklin was not given
a reasonable amount of time to investigate due to
AmGuard’s delays, that AmGuard was barred by laches
from seeking interest, and that the imposition of interest
only against Republic-Franklin acted as a penalty. The
commissioner, however, refused to consider such argu-
ments or evidence, declaring that the reasons why
Republic-Franklin confirmed its apportionment share
in October, 2012, would not be considered and that
none of the proposed documentation would be a part
of his findings. He further stated: ‘‘We have a pure legal
argument here and that is can I award interest based
on what has procedurally transpired in this case.’’ The
commissioner limited the question before him to what
he deemed a ‘‘legal issue’’: whether Republic-Franklin
was correct that interest attaches only if the commis-
sioner must make a determination of apportionment
liability or whether AmGuard was correct that interest
attaches when formal proceedings have concluded. At
the conclusion of the hearing, the parties stipulated to
their apportionment share agreements.
The commissioner issued his decision, adopting the
agreement that had been reached between Republic-
Franklin and AmGuard. The commissioner ordered
Republic-Franklin to pay interest. The decision did not
reference whether the award was made within a reason-
able period of time from the issuance of the award of
the claimant’s underlying compensation claim.
Following the commissioner’s order, Republic-Frank-
lin filed motions to correct and for articulation. In its
motion to correct, Republic-Franklin sought to amend
the third paragraph of the commissioner’s findings,
which took administrative notice of the 2004 voluntary
agreement between the claimant and Ridgefield, by add-
ing: ‘‘Administrative Notice is taken of the date of the
first informal hearing held to address AmGuard’s appor-
tionment claim pursuant to . . . [§] 31-299b as against
[Republic-Franklin] on November 16, 2007, regarding
the claimant’s bilateral carpal tunnel syndrome [claim]
only.’’ Republic-Franklin supported its request for the
amendment by stating that the ‘‘amendment is material
and relevant in order to identify the date when AmGuard
first pursued the apportionment claim as against
[Republic-Franklin] pursuant to [§] 31-299b.’’ The com-
missioner denied that correction.
In its motion for articulation, Republic-Franklin
asserted that there were inconsistencies within the
commissioner’s findings, claiming that the commis-
sioner was not required to make findings because of the
agreement between Republic-Franklin and AmGuard.12
Republic-Franklin, thus, requested that ‘‘the trial com-
missioner provide clarification of his decision herein
as the factual findings . . . are in clear contradiction to
[the] statutory criteria triggering an order of mandatory
interest pursuant to . . . [§] 31-299b, which was the
basis for said order as against [Republic-Franklin].’’ The
commissioner denied Republic-Franklin’s motion for
articulation.
Republic-Franklin appealed the commissioner’s find-
ing, as well as his denial of its motions to correct and
for articulation, to the board. In its brief submitted
prior to argument before the board, Republic-Franklin
reiterated the position that it had taken at the final
formal hearing regarding the statutory criteria. In addi-
tion, Republic-Franklin argued that the commissioner
refused to allow Republic-Franklin to submit evidence
regarding why the matter proceeded to formal hearings,
and documenting AmGuard’s delays in prosecuting the
claim. With respect to the denial of its motion to correct,
Republic-Franklin argued that the commissioner erred
because the motion sought to correct his finding to
include the fact that the statutory requirements had not
been satisfied. With respect to the denial of its motion
for articulation, Republic-Franklin maintained it was
unclear whether the commissioner issued interest
against it pursuant to § 31-299b or General Statutes § 31-
300, and, therefore, Republic-Franklin requested that
the matter be remanded to the commissioner for clarifi-
cation.
Republic-Franklin’s argument before the board
regarding the satisfaction of the statutory requirements
was consistent with the position that it had taken in
its brief to the board. In addition, Republic-Franklin
argued that the statute contemplates a reasonable time
period to issue an award and that the commissioner
denied its request to submit evidence about why the
matter proceeded to formal hearings. Moreover, Repub-
lic-Franklin reasoned, after the agreement and reim-
bursement to AmGuard had occurred, the purpose of
the final hearing should have been whether AmGuard
pursued its apportionment claim in a reasonable man-
ner after the issuance of the voluntary agreement. But,
when counsel for Republic-Franklin was asked during
oral argument to the board whether it wanted the matter
remanded to determine if its actions were reasonable,
counsel responded, ‘‘[N]o. We want the trial commis-
sioner’s finding and award reversed and the interest
denied because I don’t believe all the criteria has been
satisfied in [§] 31-299b.’’ When asked whether evidence
of undue delay was germane under a claim pursuant
to § 31-299b, rather than other statutes that specifically
referenced unreasonable delay, Republic-Franklin
responded that such evidence was pertinent, but that
by the time the parties were making arguments at the
last formal hearing on December 1, 2010, the reason-
ableness determination was moot because Republic-
Franklin and AmGuard had reached an agreement.
Counsel stated that the board did not need to address
the reasonableness requirement ‘‘because the issue had
been resolved.’’
The board affirmed the decision of the commissioner.
It concluded that the commissioner did not commit
error in awarding interest against Republic-Franklin
because the commissioner was free to either accept or
reject the agreement and that the agreement did not
prevent the commissioner from awarding interest pur-
suant to § 31-299b. The board additionally concluded
that the commissioner did not err in failing to grant all
of the corrections sought by Republic-Franklin because
the changes either did not compel a different outcome
or were findings that Republic-Franklin would have
preferred. Finally, it concluded, after observing that a
motion for articulation is appropriate when a commis-
sioner’s decision contains some ambiguity or deficiency
reasonably susceptible of clarification, that the commis-
sioner did not abuse his discretion in denying the
motion for articulation. The board’s decision did not
address whether the interest award was made within
a reasonable period of time of the claimant’s award on
his compensation claim.
‘‘Practice Book § 60-5 provides in relevant part that
[t]he court shall not be bound to consider a claim unless
it was distinctly raised at the trial or arose subsequent
to the trial. The court may in the interests of justice
notice plain error not brought to the attention of the trial
court. . . . Indeed, it is the appellant’s responsibility to
present such a claim clearly to the trial court so that
the trial court may consider it and, if it is meritorious,
take appropriate action. That is the basis for the require-
ment that ordinarily [the appellant] must raise in the
trial court the issues that he intends to raise on appeal.
. . . For us [t]o review [a] claim, which has been articu-
lated for the first time on appeal and not before the
trial court, would result in a trial by ambuscade of the
trial judge. . . . We have repeatedly indicated our dis-
favor with the failure, whether because of a mistake of
law, inattention or design, to object to errors occurring
in the course of a trial until it is too late for them to
be corrected, and thereafter, if the outcome of the trial
proves unsatisfactory, with the assignment of such
errors as grounds of appeal.’’ (Internal quotation marks
omitted.) Ravetto v. Triton Thalassic Technologies,
Inc., 285 Conn. 716, 730, 941 A.2d 309 (2008). This rule
applies to appeals from administrative proceedings as
well. See Dragan v. Connecticut Medical Examining
Board, 223 Conn. 618, 632, 613 A.2d 739 (1992) (‘‘[a]
party to an administrative proceeding cannot be
allowed to participate fully at hearings and then, on
appeal, raise claims that were not asserted before
the board’’).
At every stage of the proceedings until appeal to this
court, Republic-Franklin failed to raise distinctly the
claim that the commissioner’s interest order was not
made within a reasonable period of time of the compen-
sation award. At the final formal hearing, the gravamen
of Republic-Franklin’s argument was that interest
should not have been awarded because there was no
need for a determination of apportionment liability by
the commissioner. Although Republic-Franklin did seek
to introduce evidence to establish a lack of timeliness
on AmGuard’s part for bringing and prosecuting an
apportionment claim, such evidence was never argued
to be applicable to an analysis of whether the interest
order was issued in a reasonable period of time after
the issuance of the compensation award. Indeed, the
commissioner’s finding does not mention reasonable-
ness at all.
Republic-Franklin’s motions to correct and for articu-
lation similarly failed to adequately raise this claim. The
only correction that even remotely implicated whether
the interest order was made within a reasonable period
of time referred to when Republic-Franklin received
notice of the carpal tunnel claim, a claim not at issue
in the present case. Republic-Franklin did not seek to
add a finding that the apportionment claim for the cervi-
cal spine claim was not brought within a reasonable
period of time or that AmGuard was the reason for any
delays in the prosecution of its apportionment claim.
Although its motion for articulation obliquely refer-
enced the time period between the approval of the
voluntary agreement and formal notice of the apportion-
ment for the cervical spine claim, Republic-Franklin did
not argue that the commissioner’s finding of interest
was improper because his order was not made within
a reasonable period of time. Instead, it only claimed
that the necessary clarification was whether the com-
missioner had assessed interest against it pursuant to
§ 31-299b or § 31-300. Thus, the commissioner never
addressed whether the interest award was made within
a reasonable period of time.
On appeal to the board, Republic-Franklin challenged
the commissioner’s finding as well as the denials of its
motions to correct and for articulation, but again did
not challenge the interest award on the ground that it
was not made within a reasonable period of time. None
of the arguments raised in its brief to support the claim
that the commissioner improperly ordered it to pay
mandatory interest raised the reasonableness of the
timing of the commissioner’s order as a ground for
reversal. Rather, Republic-Franklin repeatedly disputed
the commissioner’s authority to make a determination
as to the proportionate share of liability and reimburse-
ment of any prior insurer due to the agreement between
Republic-Franklin and AmGuard. In challenging the
denial of the motion to correct, although Republic-
Franklin mentioned the reasonable period of time
requirement, it is clear that it was really challenging
the order itself, not the timing of the order. The motion
for articulation focused solely on the alleged ambiguity
regarding which statutory provision the commissioner
relied on in making his finding.
Moreover, Republic-Franklin did not: file a motion
to submit additional evidence pursuant to General Stat-
utes § 31-301 (b)13 so that the board could review the
commissioner’s refusal to hear evidence regarding
AmGuard’s alleged delays; argue that the commissioner
improperly failed to consider a claim that the interest
award was not made within a reasonable period of time;
or, ask the board to determine if the interest award
was made within a reasonable period of time. In fact,
when explicitly asked during oral argument whether
the board should remand for a reasonableness determi-
nation, counsel for Republic-Franklin said, ‘‘[N]o. We
want the trial commissioner’s finding and award
reversed and the interest denied because I don’t believe
all the criteria has been satisfied in [§] 31-299b.’’ Follow-
ing the board’s decision, there is no evidence in the
record to suggest that Republic-Franklin sought a
reconsideration based on the board’s failure to consider
a claim that the commissioner’s interest award was not
made within a reasonable period of time. As a result,
the board did not determine whether the interest order
was made within a reasonable period of time.
In sum, Republic-Franklin failed to articulate its claim
that the commissioner’s interest award was not made
within a reasonable period of time of the claimant’s
award on his compensation claim until its appeal to
this court. Although it has mentioned that the finding
should be made within reasonable period of time as
a statutory requirement, Republic-Franklin has never
asked, until now, for review of such argument. As a
result, neither the commissioner nor the board has been
provided with an opportunity to evaluate this claim.
Accordingly, we decline to review it.
The decision of the Workers’ Compensation Review
Board is affirmed.
In this opinion the other justices concurred.
1
General Statutes § 31-299b provides in relevant part: ‘‘If an employee
suffers an injury or disease for which compensation is found by the commis-
sioner to be payable according to the provisions of this chapter, the employer
who last employed the claimant prior to the filing of the claim, or the
employer’s insurer, shall be initially liable for the payment of such compensa-
tion. The commissioner shall, within a reasonable period of time after issuing
an award, on the basis of the record of the hearing, determine whether prior
employers, or their insurers, are liable for a portion of such compensation
and the extent of their liability. If prior employers are found to be so liable,
the commissioner shall order such employers or their insurers to reimburse
the initially liable employer or insurer according to the proportion of their
liability. Reimbursement shall be made within ten days of the commissioner’s
order with interest, from the date of the initial payment, at twelve per cent
per annum. If no appeal from the commissioner’s order is taken by any
employer or insurer within twenty days, the order shall be final and may
be enforced in the same manner as a judgment of the Superior Court. . . .’’
2
Republic-Franklin appealed to the Appellate Court, and we transferred
the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1.
3
Heavy hit mechanics disassemble totaled motor vehicles, including
removing roofs, doors, struts, wheels and hoods, and place the parts in
dumpsters. The work also requires a mechanic to bend and twist underneath
the dashboard and in the motor vehicle, which puts a mechanic’s neck in
an awkward position.
4
‘‘Spinal stenosis is a narrowing of spaces in the spine (backbone) that
results in pressure on the spinal cord and/or nerve roots.’’ National Institute
of Arthritis and Musculoskeletal and Skin Diseases, National Institutes of
Health, ‘‘Spinal Stenosis,’’ (January, 2013), available at http://www.niams.nih-
.gov/Health Info/Spinal Stenosis/default.asp (last visited September 3,
2014). ‘‘[I]f narrowing places pressure on the spinal cord, cauda equina, or
nerve roots, there may be a slow onset and progression of symptoms. The
neck or back may or may not hurt. More often, people experience numbness,
weakness, cramping, or general pain in the arms or legs.’’ Id.
5
The record does not reveal whether AmGuard and American Alternative
resolved the carpal tunnel claim.
6
In support of this argument, Republic-Franklin also claims that the com-
missioner denied it an opportunity to present evidence as to: why the case
proceeded to formal hearings; the delays by AmGuard in prosecuting its
claim; and, why AmGuard should be prohibited due to laches in prosecuting
its apportionment claim. Because the board did not address these arguments
when they were raised before it, and Republic-Franklin does not challenge
the board’s failure to address those arguments, they are unpreserved, and
we decline to review them. See Remillard v. Remillard, 297 Conn. 345, 351,
999 A.2d 713 (2010) (‘‘It is well established that an appellate court is under
no obligation to consider a claim that is not distinctly raised at the trial
level. . . . [B]ecause our review is limited to matters in the record, we
[also] will not address issues not decided by the trial court.’’ [Internal quota-
tion marks omitted.]).
7
For this reason, Republic-Franklin’s contention that the second prerequi-
site, acknowledgment of liability by the current insurer, had not been met
because the commissioner did not make a finding of who was the current
insurer after a formal proceeding on the compensation claim or the appor-
tionment claim, is without merit. This argument not only misconstrues the
statutory language of § 31-299b, but also would lead to an absurd and unwork-
able result. Section 31-299b mandates the current insurer to administer a
claim if a compensation award is made. See General Statutes § 31-299b (‘‘[i]f
an employee suffers an injury or disease for which compensation is found
by the commissioner to be payable according to the provisions of this
chapter, the employer who last employed the claimant prior to the filing of
the claim, or the employer’s insurer, shall be initially liable for the payment
of such compensation’’ [emphasis added]). Although it is true that the com-
missioner must make the initial determination of compensability, including
deciding the last date of injury and determining the insurer responsible for
administering a claim in instances where the parties do not come to an
agreement; see, e.g., Dinneen v. Acands, Inc., No. 5664, CRB-3-11-7 (July
3, 2012) (commissioner determined date of last injurious exposure to asbes-
tos and ordered current insurer to administer claim pursuant to § 31-299b);
there is no support for the assertion that an order following a formal hearing
is the only way that a current insurer could accept liability. In fact, the
mandatory language of the statute contemplates that a commissioner need
not be involved in the acceptance of liability after compensation has been
awarded. There is nothing in the statute that prohibits the liability of a current
insurer from attaching following the approval of a voluntary agreement.
In the present case, AmGuard accepted liability when the commission
accepted the voluntary agreement. Thus, this requirement was met. More-
over, Republic-Franklin’s position that a formal proceeding is the only proce-
dural vehicle that satisfies the second requirement of § 31-299b would have
the absurd and unworkable result of requiring current insurers to either
litigate all compensation claims or litigate all apportionment claims if a
voluntary agreement had been reached. Reading the statutory language in
this way would create an untenable burden on the commission and render
voluntary agreements meaningless because current insurers would be
required to, in essence, contest liability despite having reached a volun-
tary agreement.
8
As we explain in part II of this opinion, we decline to review Republic-
Franklin’s claim that the award was not made within a reasonable period
of time after the claimant’s award was issued because the claim was not pre-
served.
9
General Statutes § 31-303 provides in relevant part: ‘‘Any employer who
fails to pay within the prescribed time limitations of this section shall pay
a penalty for each late payment, in the amount of twenty per cent of such
payment . . . .’’
10
We recognize that in Schiano the commissioner did not have an opportu-
nity to review the agreement reached by the parties, a different circumstance
from the present case. See Schiano v. Bliss Exterminating Co., supra, 260
Conn. 32. That distinction, however, does not lessen the import of the holding
in Schiano, that the commissioner retains the authority to decide whether
to accept or reject the agreement brought before him when the parties have
chosen to litigate an issue.
11
For the reasons previously stated in this opinion, the additional argu-
ments made by Republic-Franklin as to why the interest award was improper
are unavailing. First, it claims that the interest award was improper because
Republic-Franklin did not choose to pursue litigation, but rather asserted
its due process rights to investigate AmGuard’s apportionment claims. This
argument has no bearing on a commissioner’s authority to make an appor-
tionment determination when the parties have come to an agreement, but
rather, is relevant to whether the interest award was warranted given the
procedural posture of the claim.
Republic-Franklin’s second claim, that it has standing to challenge the
interest award on the basis of the commissioner’s failure to assess interest
against American Alternative, is similarly specious. Whether the commis-
sioner failed to carry out the spirit of the statute by not assessing interest
against American Alternative, as Republic-Franklin contends, simply has no
relevance to an analysis of standing. Its second argument, the failure to
award interest as against both Republic-Franklin and American Alternative
is an unconstitutional application of § 31-299b, is inadequately briefed.
Republic-Franklin has not identified which constitution, state or federal,
was violated or which constitutional provisions apply. ‘‘We repeatedly have
stated that [w]e are not required to review issues that have been improperly
presented to this court through an inadequate brief. . . . Analysis, rather
than mere abstract assertion, is required in order to avoid abandoning an
issue by failure to brief the issue properly.’’ (Internal quotation marks omit-
ted.) Citibank, N.A. v. Lindland, 310 Conn. 147, 165, 75 A.3d 651 (2013).
Because Republic-Franklin has provided no analysis to support its claim
that § 31-299b was unconstitutionally applied to it, we deem the claim aban-
doned and decline to review it.
12
Republic-Franklin additionally observed that the approval of the volun-
tary agreement occurred three years prior to AmGuard’s apportionment
claim regarding the carpal tunnel claim, that Republic-Franklin was placed
on notice of an apportionment claim for the cervical spine claim at the
claimant’s 2009 deposition, that the agreement on apportionment liability
and reimbursement occurred prior to the conclusion of formal hearings,
and that because the reimbursement occurred prior to the conclusion of
formal hearings, an order by the commissioner on that issue was not nec-
essary.
13
General Statutes § 31-301 (b) provides in relevant part: ‘‘The Compensa-
tion Review Board shall hear the appeal on the record of the hearing before
the commissioner, provided, if it is shown to the satisfaction of the board
that additional evidence or testimony is material and that there were good
reasons for failure to present it in the proceedings before the commissioner,
the Compensation Review Board may hear additional evidence or tes-
timony.’’