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WILFREDO QUINONES v. R. W. THOMPSON
COMPANY, INC.
(AC 38256)
Lavine, Keller and Bishop, Js.
Syllabus
The plaintiff, who was injured while he was employed by the defendant
company, appealed to this court from the decision of the Compensation
Review Board, which affirmed the decision of the Workers’ Compensa-
tion Commissioner denying the plaintiff’s motion to preclude the defen-
dant from contesting the extent of the plaintiff’s injuries. The defendant
did not contest the plaintiff’s claim for certain workers’ compensation
benefits by filing a form 43, as required by statute ([Rev. to 2009] § 31-
294c). Nevertheless, the defendant later filed a form 36 seeking to discon-
tinue the benefits it was paying the plaintiff, which was approved without
objection. The plaintiff thereafter filed his motion to preclude and, after
conducting a formal hearing but before ruling on that motion, the com-
missioner, T, died, and the case was assigned to a substitute commis-
sioner, D. The parties sent letters to the Workers’ Compensation
Commission after they were informed that they could have a hearing
de novo or request the commission to assign a substitute commissioner
to decide the case upon review of the original record. The plaintiff
objected to a trial de novo and claimed that a decision should be rendered
upon review of the record, and the defendant had no objection to a
decision rendered based upon a review of the record. Thereafter, the
plaintiff filed an objection to D’s order scheduling a formal hearing in
order to open the record for articulation of the parties’ positions and
arguments, which D denied. Subsequently, D held a formal hearing, at
which time he recalled the plaintiff for further questioning, and later
issued a decision denying the plaintiff’s motion to preclude. The plaintiff
appealed to the board, which affirmed the denial of his motion to pre-
clude. On appeal to this court, the plaintiff claimed, inter alia, that the
board improperly found there was no error when D rejected an alleged
stipulation that the case be decided on the original record. Held:
1. The plaintiff could not prevail on his claim that because the parties
stipulated that the case would be decided on the original record before T,
D improperly opened the record, ignored the stipulation and conducted
a hearing de novo: D’s opening of the record solely in order to question
the plaintiff regarding payments that he received from the defendant
was not a hearing de novo, and the board did not clearly err in finding
that the letters that the parties sent separately to the commission did
not constitute a contract between the parties that could be considered
a stipulation, as there was no firm understanding between the parties
nor a quid pro quo, and the letters were merely a statement by the
parties of their respective positions at that time; moreover, even if a
stipulation existed between the parties, it would not have prohibited D
from opening the record, as D recalled the plaintiff as a witness so that
he could hear evidence he believed was essential to a proper evaluation
of the case, and it was fully within D’s power and authority, as a commis-
sioner, to do so; accordingly, the board correctly determined that it was
not improper for D to have opened the record.
2. The plaintiff could not prevail on his claim that the board improperly
affirmed the denial of his motion to preclude, which was based on his
claim that the defendant, by failing to file a form 43 to contest the
compensability of the plaintiff’s claim for benefits, failed to comply with
§ 31-294c and was, therefore, precluded from contesting the compensa-
bility or extent of the plaintiff’s claimed injury; the defendant had no
duty to file a form 43, as the compensability of the plaintiff’s claim was
not and had never been contested, the plaintiff timely received benefits
until the commission approved a timely filed form 36, and there was
no reason for the defendant to contest the extent of the plaintiff’s injury
until obtaining the information alleged in the form 36, namely, that the
plaintiff was able to return to work.
Argued December 4, 2018—officially released February 26, 2019
Procedural History
Appeal from the decision of the Workers’ Compensa-
tion Commissioner for the Sixth District denying the
plaintiff’s motion to preclude the defendant from con-
testing the extent of the plaintiff’s injury and denying
the plaintiff’s motion to correct, brought to the Compen-
sation Review Board, which affirmed the commission-
er’s decision, and the plaintiff appealed to this court.
Affirmed.
Jennifer B. Levine, with whom was Harvey L.
Levine, for the appellant (plaintiff).
Nicholas C. Varunes, with whom was Christopher
Young, for the appellee (defendant).
Opinion
LAVINE, J. The plaintiff, Wilfredo Quinones, appeals
from the decision of the Compensation Review Board
(board) affirming the decision of the Workers’ Compen-
sation Commissioner for the Sixth District, Stephen B.
Delaney, denying the plaintiff’s motion to preclude the
defendant, R. W. Thompson Co., Inc., from contesting
the extent of the plaintiff’s injury. On appeal, the plain-
tiff claims that the board improperly (1) found there was
no error when the commissioner rejected an alleged
stipulation that the case be decided on the original
record and (2) affirmed the denial of the plaintiff’s
motion to preclude despite the defendant’s failure to
file a form 43. We affirm the decision of the board.
The following facts and procedural history are rele-
vant to our resolution of this appeal. On March 16,
2010, during the course of his employment with the
defendant, the plaintiff sustained compensable injuries
when the deck of a road paving machine fell on him.
He began to receive workers’ compensation benefits
on March 23, 2010. Although the plaintiff timely filed a
form 30C1 claiming benefits on October 25, 2010, he
refiled a form 30C on February 10, 2011, because he
lost the return receipts from the postal service related
to his first filing. The defendant did not contest the
plaintiff’s claim by filing a form 432 and began paying
the plaintiff weekly indemnity payments in the amount
of $328.58 from March 23, 2010, until November 8, 2011.
On October 17, 2011, the defendant, however, sought
to discontinue the benefits it was paying the plaintiff
by filing a form 36,3 alleging that the plaintiff was able
to return to work.4 The form 36 was approved without
objection on November 2, 2011. Consequently, the plain-
tiff received no more compensation benefit payments
after November 8, 2011. On February 29, 2012, the plain-
tiff filed a motion to preclude the defendant from deny-
ing him further compensation benefits. Commissioner
Clifton Thompson conducted a formal hearing on April
18, 2012. After the hearing, but before the parties sub-
mitted posttrial briefs, Commissioner Thompson died,
and the case was assigned to Commissioner Delaney.5
When the Workers’ Compensation Commission (com-
mission) contacted the parties regarding the former
commissioner’s death, the parties were told that they
could have a hearing de novo or request the commission
to assign a substitute commissioner to decide the case
on the basis of a review of the transcript, exhibits, and
as of yet unfiled briefs. The plaintiff objected to a trial
de novo in a letter dated May 24, 2012, and stated that a
decision should be rendered upon review of the record.6
The defendant, in a letter dated May 24, 2012, stated
that it ‘‘[had] no objection to [the] matter [being] reas-
signed to a new commissioner for a finding on the
papers based on the April 18, 2012 formal hearing tran-
script and the briefs submitted by the parties.’’
On August 31, 2012, the commissioner scheduled a
formal hearing to open the record for articulation of
the parties’ positions and arguments. On September 7,
2012, the plaintiff filed an objection to the commission-
er’s order to open the formal hearing. At a formal hear-
ing on October 1, 2012, the commissioner heard the
plaintiff’s objection, and ruled that he had the authority
to open the record and was recalling the plaintiff for
further questioning. The plaintiff thereafter filed an
appeal to the board on October 19, 2012, challenging
the right of the commissioner to open the record and
take further evidence. The board issued a decision on
January 16, 2014, concluding that the matter was not
ripe for review. On May 15, 2014, the commissioner
held a formal hearing. On July 11, 2014, he issued his
decision denying the plaintiff’s motion to preclude. The
plaintiff appealed to the board, arguing that the commis-
sioner improperly opened the record in contravention
of the parties’ stipulation and denied his motion to
preclude. On July 29, 2015, the board found that there
was no stipulation between the parties, and even if there
was a stipulation, the commissioner had the authority
to open the record. The board affirmed his denial of
the motion to preclude. This appeal followed.
As a threshold matter, we set forth the standard of
review. ‘‘It is well established that [a]lthough not dispos-
itive, we accord great weight to the construction given
to the workers’ compensation statutes by the commis-
sioner and [the board]. . . . A state agency is not enti-
tled, however, to special deference when its
determination of a question of law has not previously
been subject to judicial scrutiny. . . . Where . . . [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.’’ (Citations omitted;
internal quotation marks omitted.) Day v. Middletown,
59 Conn. App. 816, 819, 757 A.2d 1267, cert. denied, 254
Conn. 945, 762 A.2d 900 (2000). ‘‘We [accord] deference
to . . . a time-tested agency interpretation of a statute,
but only when the agency has consistently followed its
construction over a long period of time, the statutory
language is ambiguous, and the agency’s interpretation
is reasonable.’’ State Medical Society v. Board of Exam-
iners in Podiatry, 208 Conn. 709, 719, 546 A.2d 830
(1988).
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case
. . . . In seeking to determine that meaning . . . [we]
first . . . consider 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, extratextual evidence of
the meaning of the statute shall not be considered. . . .
When 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
. . . .
‘‘Moreover, [i]n applying these general principles, we
are mindful that the [Workers’ Compensation Act (act),
General Statutes § 31-275 et seq.] indisputably is a reme-
dial statute that should be construed generously to
accomplish its purpose. . . . The humanitarian and
remedial purposes of the act counsel against an overly
narrow construction that unduly limits eligibility for
workers’ compensation. . . . Accordingly, [i]n con-
struing workers’ compensation law, we must resolve
statutory ambiguities or lacunae in a manner that will
further the remedial purpose of the act. . . . [T]he pur-
poses of the act itself are best served by allowing the
remedial legislation a reasonable sphere of operation
considering those purposes.’’ (Internal quotation marks
omitted.) Kinsey v. World PAC, 152 Conn. App. 116,
124, 98 A.3d 66 (2014).
‘‘The powers and duties of workers’ compensation
commissioners are conferred upon them for the pur-
poses of carrying out the stated provisions of the [act].
. . . It is well settled that the commissioner’s jurisdic-
tion is confined by the . . . act and limited by its provi-
sions.’’ (Citations omitted; internal quotation marks
omitted.) Tufaro v. Pepperidge Farm, Inc., 24 Conn.
App. 234, 236, 587 A.2d 1044 (1991).
I
The plaintiff first claims that the commissioner
improperly opened the record. Specifically, he argues
that he and the defendant stipulated that the case would
be decided on the record before the former commis-
sioner, and that the commissioner improperly ignored
that stipulation and conducted a hearing de novo. We
disagree.
As an initial matter, we reject the plaintiff’s character-
ization that the commissioner’s opening of the record
was a hearing de novo. After the matter was assigned
to him, the commissioner reviewed the record and con-
cluded that there was not enough evidence for him to
make a decision. He stated that the record consisted
of ‘‘a very short transcript [of the April 18, 2012 formal
hearing], very short direct and [cross-examination] of
the [plaintiff], and [that he had] a lot of questions [for]
the [plaintiff].’’7 As a result, he opened the record in
order to question the plaintiff. At the hearing on May 15,
2014, the commissioner questioned the plaintiff solely
about the payments he received. The plaintiff was
unable to answer the commissioner’s questions, even
when shown his testimony from the October 1, 2012
hearing. The commissioner then asked counsel whether
they could provide the information he requested con-
cerning what payments the plaintiff received. Surpris-
ingly, the plaintiff’s counsel did not respond. The
defendant’s counsel offered a history of the benefits
the defendant had paid the plaintiff. The commissioner
accepted the history into evidence, which indicated that
the plaintiff received weekly payments in the amount
of $328.58, for a total of $28,257.88, as well as payment
of medical bills totaling $66,996.09, for an overall total
of $95,253.97.8
We also reject the plaintiff’s characterization of the
May 24, 2012 letters the parties sent separately to the
commission as a stipulation. ‘‘[A stipulation] may be
defined as a contract of the parties acknowledged in
open court and ordered to be recorded by a court of
competent jurisdiction. . . . [It is] the result of a con-
tract and its embodiment in a form which places it and
the matters covered by it beyond further controversy.
. . . The essence of the [stipulation] is that the parties
to the litigation have voluntarily entered into an
agreement setting their dispute or disputes at rest and
that, upon this agreement, the court has [rendered]
judgment conforming to the terms of the agreement.’’
(Internal quotation marks omitted.) Portfolio Recovery
Associates, LLC v. Healy, 158 Conn. App. 113, 118, 118
A.3d 637 (2015).
‘‘Absent a clearly expressed intention of the parties,
the construction of a stipulation is a question of fact
committed to the sound discretion of the trial court.
. . . Unless the language is so clear as to render its
interpretation a matter of law, the question of the par-
ties’ intent in entering into a stipulation is a question
of fact that is subject to the ‘clearly erroneous’ scope
of review.’’ (Citations omitted.) Rosenfield v. Metals
Selling Corp., 229 Conn. 771, 780, 643 A.2d 1253 (1994).
In its opinion affirming the denial of the motion to
preclude, the board stated that its ‘‘examination of the
documentary evidence . . . which purportedly serves
as a ‘stipulation’ reveals that the May 24, 2012 corre-
spondence from [the plaintiff’s] counsel to the commis-
sion was primarily a position statement reflecting [the
plaintiff’s] objection to a trial de novo, while correspon-
dence to the commission from [the defendant’s] counsel
of the same date indicates that the [defendant] ‘[had]
no objection to [the] matter [being] reassigned to a new
commissioner for a finding on the papers based on the
April 18, 2012 formal hearing transcript and the briefs
submitted by the parties.’ . . . [N]either of these docu-
ments rises to a level of a ‘stipulation,’ and the eviden-
tiary record contains no other document which even
remotely resembles a stipulation.’’ The board also con-
cluded that even if there had been a stipulation, the
commissioner would not have been bound by its terms
in light of the powers entrusted to him by statute.
Upon review of the evidence, we conclude that the
board did not clearly err in finding that the May 24,
2012 letters did not constitute a contract between the
parties that could be considered a stipulation. There
was no firm understanding between the parties nor a
quid pro quo, just a statement by the parties of their
respective positions at that time. We also agree with
the board that, even if a stipulation existed between
the parties, such a stipulation would not prohibit the
commissioner from opening the record.
‘‘[U]pon the death, disability or resignation of a judge9
. . . during the pendency of a trial or hearing to the
court, a successor judge should take the following steps
pursuant to the authority granted by [General Statutes]
§ 51-183f: (1) become familiar with the entire existing
record, including, but not necessarily limited to, tran-
scripts of all testimony and all documentary evidence
previously admitted; (2) determine, on the basis of such
record and any further proceedings as the court deems
necessary, whether the matter may be completed with-
out prejudice to the parties; (3) if the court finds that
the matter may not be completed without prejudice to
the parties it should declare a mistrial, but if the court
finds that the matter may be completed without preju-
dice to the parties then; (4) upon request of any party,
or upon the court’s own request, recall any witness
whose testimony is material and disputed and who is
available to testify without due burden; (5) take any
other steps reasonably necessary to complete the pro-
ceedings; and (6) render a decision based on the succes-
sor judge’s own findings of fact and conclusions of law.’’
(Emphasis added; footnote added.) Stevens v. Hartford
Accident & Indemnity Co., 29 Conn. App. 378, 386, 615
A.2d 507 (1992).
‘‘Although . . . a successor judge [has the power]
to make his or her findings of fact based solely on
transcribed testimony and exhibits, no Connecticut
court has . . . defined the power of litigants to stipu-
late to such a procedure, thereby circumventing the
procedures required under § 51-183f. Although ordi-
narily stipulations of the parties are adopted, the court
may disapprove the parties’ agreement when it finds
reason. . . . A stipulation, however, is not necessarily
binding on the court and, under the circumstances of
a particular case, the court may be justified in disre-
garding it.’’ (Citations omitted.) Gorelick v. Montanaro,
94 Conn. App. 14, 22 n.14, 891 A.2d 41 (2006). ‘‘We are
mindful that a judge is not a mere umpire . . . but a
minister of justice, and it follows that an agreement is
not necessarily binding on the court and may justifiably
be disregarded in a particular case.’’ Central Connecti-
cut Teachers Federal Credit Union v. Grant, 27 Conn.
App. 435, 438, 606 A.2d 729 (1992).
In the present case, the commissioner recalled the
plaintiff as a witness so that he could hear evidence he
believed essential to a proper evaluation of the case,
that is, evidence of what payments had been made to
the plaintiff. The plaintiff’s testimony was material as to
whether the defendant met the requirements of General
Statutes (Rev. to 2009) § 31-294c.10 It was fully within
the commissioner’s power and authority to do so. See
General Statutes § 31-278 (‘‘[e]ach commissioner shall
. . . have power to summon and examine under oath
such witnesses, and may direct the production of . . .
such . . . records . . . in relation to any matter at
issue as he may find proper’’); General Statutes § 31-
282 (‘‘[i]f any compensation commissioner dies before
the final settlement of any matter in which he had been
acting in his official capacity, his successor in office
may continue such matter to its completion’’); and Gen-
eral Statutes § 31-298 (‘‘[T]he commissioner shall pro-
ceed, so far as possible, in accordance with the rules
of equity. He shall not be bound by the ordinary com-
mon 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.’’); see also Delgaizo v. Veeder-Root,
Inc., 133 Conn. 664, 667–68, 54 A.2d 262 (1947) (‘‘The
commissioner is not bound by common law or statutory
rules of evidence or procedure. He may make inquiry
in the manner best calculated to do so to ascertain the
rights of the parties and to carry out the spirit of the
act through oral testimony or written or printed records.
. . . He may require the production of records . . . .’’
[Citation omitted.]). The plaintiff did not provide, nor
have we found, any support for the notion that a stipula-
tion—assuming one in fact existed—between parties
that was not approved by the commissioner could limit
the commissioner’s power. See Gorelick v. Montanaro,
supra, 94 Conn. App. 22 n.14. We, therefore, conclude
that the board correctly determined that it was not
improper for the commissioner to have opened the
record.
II
The plaintiff’s second claim is that the board improp-
erly affirmed the denial of his motion to preclude, as
the defendant failed to file a form 43. Specifically, the
plaintiff argues that by failing to file a form 43 to contest
the compensability of his original claim, the defendant
failed to comply with § 31-294c11 and is, therefore, pre-
cluded from contesting the compensability or extent of
the plaintiff’s claimed injury. We disagree and conclude
that, given the circumstances, the board properly con-
cluded that the defendant had no duty to file a form 43.
‘‘In deciding a motion to preclude, the commissioner
must engage [in] a two part inquiry. First, he must
determine whether the employee’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 September 25, 2013).
‘‘ ‘The first two sentences of § 31-294c (b) address
the procedure that an employer must follow if it wants
to contest liability to pay compensation . . . . The
statute prescribes therein that, within twenty-eight days
of receiving a notice of claim, the employer must file
a notice stating that it contests the claimant’s right to
compensation and setting forth the specific ground on
which compensation is contested. The third sentence:
(1) provides that an employer who fails to file a timely
notice contesting liability must commence payment of
compensation for the alleged injury within that same
twenty-eight day period; and (2) grants the employer
who timely commences payment a one year period in
which to ‘‘contest the employee’s right to receive com-
pensation on any grounds or the extent of his disability’’;
but (3) relieves the employer of the obligation to com-
mence payment within the twenty-eight day period if
the notice of claim does not, inter alia, include a warning
that ‘‘the employer shall be conclusively presumed to
have accepted the compensability of the alleged injury
or death unless the employer either files a notice con-
testing liability on or before the twenty-eighth day after
receiving a written notice of claim or commences pay-
ment for the alleged injury or death on or before such
twenty-eighth day.’’ . . . The fourth sentence provides
for reimbursement to an employer who timely pays
and thereafter prevails in contesting compensability.
Finally, the fifth sentence sets forth the consequences
to an employer who neither timely pays nor timely
contests liability: ‘‘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 compensa-
bility of the alleged injury or death.’’ ’ ’’ (Citation omit-
ted; emphasis omitted.) Dubrosky v. Boehringer
Ingelheim Corp., 145 Conn. App. 261, 269–70, 76 A.3d
657, cert. denied, 310 Conn. 935, 78 A.3d 859 (2013).
‘‘Our Supreme Court, in discerning the legislative
intent behind the notice requirement of General Stat-
utes (Rev. to 1968) § 31-297 (b), now § 31-294c (b),
explained that the statute is meant 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. . . . The court noted that the portion of the
statute providing for a conclusive presumption of liabil-
ity in the event of the employer’s failure to provide
timely notice was intended to correct some of the glar-
ing 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., 138
Conn. App. 826, 840, 54 A.3d 1040, cert. denied, 307
Conn. 943, 56 A.3d 951 (2012).
‘‘The language of form 43 indicates that it is to be
used by employers who are contesting their liability to
pay alleged compensation benefits. The form does not
include a space for those employers who initially accept
liability but may later, after investigation, choose to
contest the extent of the disability. This distinction is
not a superficial one, as an employer who is contesting
liability is distinguishable from one who solely contests
the extent of the disability. . . .
‘‘Although we have no doubt that employers may
have previously used form 43 to disclaim only the extent
of a disability and not liability, amending the form to suit
their specific disclaimer needs, that procedure unfairly
requires such employers either to amend the form or
to state untruthfully their intention to contest liability
in order to preserve their ability to later challenge the
extent of disability. The legislature, however, designed
preservation of such challenges by allowing an
employer, instead of filing a form 43, to commence
payment of compensation for the alleged injury within
the twenty-eight day period; and granting the employer
who timely commences payment a one year period in
which to contest the employee’s right to receive com-
pensation on any grounds or the extent of his disability
. . . .’’ (Citations omitted; emphasis altered; footnote
omitted; internal quotation marks omitted.) Dubrosky
v. Boehringer Ingelheim Corp., supra, 145 Conn.
App. 271–73.
The commissioner found that while the defendant
did not file a form 43, the plaintiff timely, within twenty-
eight days, received benefits until the commission
approved a form 36. In its decision, the board stated: ‘‘In
light of the evidence presented, the . . . commissioner
reasonably concluded that because the compensability
of the claim was not and had never been contested,
the [defendant was] never obligated to file a form 43.’’
We agree.
In the present case, the defendant did not contest
the liability of the plaintiff’s injury and compensated
him until the approval of a form 36. Additionally, there
was no reason for the defendant to contest the extent
of the plaintiff’s injury until obtaining the information
alleged in the form 36, which was filed less than a year
after receiving the plaintiff’s form 30C.12 The plaintiff,
therefore, was never in a disadvantaged position. ‘‘It is
well settled that notice provisions under the [act] should
be strictly construed. . . . As this court has recog-
nized, however, [o]ur requirement of strict compliance
. . . has presumed the possibility of compliance.’’
(Citation omitted; internal quotation marks omitted.)
Dubrosky v. Boehringer Ingelheim Corp., supra, 145
Conn. App. 274. Considering the facts of the present
case, the board did not misapply the law to the subordi-
nate facts or draw an unreasonable conclusion. There-
fore, we agree with the decision of the board.
The decision of the Compensation Review Board is
affirmed.
In this opinion the other judges concurred.
1
‘‘A form 30C is the document prescribed by the [W]orkers’ [C]ompensa-
tion [C]ommission to be used when filing a notice of claim pursuant to the
[Workers’ Compensation Act].’’ (Internal quotation marks omitted.) Lamar
v. Boehringer Ingelheim Corp., 138 Conn. App. 826, 828 n.3, 54 A.3d 1040,
cert. denied, 307 Conn. 943, 56 A.3d 951 (2012).
2
‘‘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. If an employer fails timely to file a form 43, a claimant may
file a motion to preclude the employer from contesting the compensability
of his claim.’’ (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).
3
‘‘A form 36 is the official document an employer must file when seeking
to discontinue an employee’s benefits.’’ Laliberte v. United Security, Inc.,
261 Conn. 181, 184 n.6, 801 A.2d 783 (2002).
4
The defendant sought to discontinue the compensation benefits it was
paying the plaintiff on the basis of surveillance video obtained by its compen-
sation insurance carrier, which showed that the plaintiff had the capacity
to work.
5
Hereinafter, we refer to Commissioner Thompson as the former commis-
sioner and Commissioner Delaney as the commissioner.
6
The plaintiff’s letter stated in relevant part: ‘‘This letter serves to memori-
alize our conversation that we had on May 24, 2012 . . . . It is [the plaintiff’s]
position that this matter is purely procedural, and does not involve credibility
issues per se. The trial transcript is fifteen pages long and there are a total
of four exhibits in the record. The record thus speaks for itself. The [plaintiff]
objects to any trial de novo as it is unnecessary. The parties were given
their fair and full opportunity to present evidence and argue their respective
positions at the [f]ormal [h]earing. The [plaintiff’s] brief is virtually complete
. . . . More importantly, a trial de novo will cause an unreasonable delay
in these proceedings. The [plaintiff] is currently without any benefits and
is in acute financial distress. Thus, time is of the essence. Another commis-
sioner should be selected to review the entire record and render a decision.’’
7
The record discloses that direct examination of the plaintiff was very
short in the April 18, 2012 formal hearing and did not include questions
regarding benefit payments. Furthermore, the plaintiff objected to cross-
examination questions about compensation as being outside of the scope
of direct. As a result, the record of the payments received by the plaintiff
was limited. The plaintiff, in his posttrial brief, even notes that he ‘‘did not
confirm whether the [defendant] timely commenced [with] payments within
the meaning of [General Statutes § 31-294c (b)].’’
8
The plaintiff additionally argues that the commissioner’s opening the
record is fundamentally unfair, as the evidence of payments that was intro-
duced ‘‘cure[d] the deficiencies in the defendant’s case alerted to him by
[the] plaintiff’s counsel.’’ We disagree. We do not view the commissioner’s
taking steps necessary to determine whether payments commenced in accor-
dance with General Statutes § 31-294c (b) to be fundamentally unfair to the
plaintiff, who received significant timely benefits until the approval of a
form 36 and has disingenuously attempted to keep evidence of such pay-
ments from being considered.
9
These principles have been applied to workers’ compensation commis-
sioners, as well as to judges. See Schick v. Windsor Airmotive Division/
Barnes Group, Inc., 34 Conn. App. 673, 675–77, 643 A.2d 286 (1994).
10
Hereinafter, all references to § 31-294c in this opinion are to the 2009
revision of the statute.
11
General Statutes § 31-294c (b) provides in relevant part: ‘‘Whenever
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’ Compensation Commission stating that the right
to compensation is contested . . . . If the employer or his legal representa-
tive fails to file the notice contesting liability on or before the twenty-eighth
day after he has received the written notice of claim, the employer shall
commence payment of compensation for such injury or death on or before
the twenty-eighth day after he has received the written notice of claim, but
the employer may contest the employee’s right to receive compensation on
any grounds or the extent of his disability within one year from the receipt
of the written notice of claim . . . . Notwithstanding the provisions of this
subsection, an employer who fails to contest liability 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.’’
12
Although, as the commissioner noted in his decision, the notice of
approval of the form 36 was sent on November 2, 2011, which is outside
of the one year ‘‘safe harbor provision,’’ we note that the form was received
by the commission on October 17, 2011. While the first form 30C the plaintiff
filed was dated September 7, 2010, the form was received on October 25,
2010.