LINDA FIELDHOUSE CLAIMANT-APPELLANT
v.
REGENCY COACHWORKS, INC. EMPLOYER
And
BERKLEY NET UNDERWRITERS INSURER RESPONDENTS-APPELLEES
No. 6344 CRB-2-19-8
Connecticut Workers Compensation
Compensation Review Board Workers Compensation Commission
August 12, 2020
This
Petition for Review from the August 5, 2019 Finding and
Dismissal of Peter C. Mlynarczyk, Commissioner acting for the
Second District, was heard on February 28, 2020 before a
Compensation Review Board panel consisting of Commission
Chairman Stephen M. Morelli and Commissioners William J.
Watson III and Toni M. Fatone.
The
claimant was represented by Sheila Hall, Esq., Gesmonde,
Pietrosimone & Sgrignari, L.L.C.
The
respondents were represented by David C. Davis, Esq., McGann,
Bartlett & Brown, L.L.C.
OPINION
STEPHEN M. MORELLI, CHAIRMAN.
The
claimant has petitioned for review from the August 5, 2019
Finding and Dismissal (finding) of Peter C. Mlynarczyk,
Commissioner acting for the Second District (commissioner).
We find error and accordingly reverse the decision of the
commissioner and remand this matter for additional
proceedings consistent with this Opinion.
The
commissioner identified as the issue for determination
whether the claimant sustained compensable injuries to her
head and her left leg, foot, and knee on November 27, 2015.
The following factual findings are pertinent to our review.
The claimant testified that she began working for the
employer in 2011 and continued working there until May 2016.
On November 27, 2015, while preparing to go on her lunch
break, the claimant fell down several stairs, hitting her
head on the door at the bottom of the stairs. She also
remembered her knee hitting something and her foot bending.
Robert
Charland, her direct supervisor on that date, assisted her to
get up from the floor as she was unable to do so on her own.
He eventually helped her back up the stairs to her office
where she sat down at her desk. After a few hours, she
realized the pain was not going away and informed Charland,
who gave her permission to leave, at which point she went to
an ambulatory clinic in Enfield.
The
claimant testified that she drove herself to the clinic and
was not directed by her employer to go to the clinic. When
she arrived, she provided her personal health insurance
information, and the appointment was paid for by her health
insurance carrier. After her visit to the clinic, the patient
next treated with her primary care physician, Manjaree Daw,
M.D.[1]
The claimant then treated on numerous dates with Robert P.
Dudek, M.D., who also sent the claimant for an MRI. The bills
for Dudek’s treatment and the MRI were paid by the
claimant’s health insurance carrier. The claimant
testified that neither Charland nor Regency Coachworks
reimbursed her for any of her out of pocket medical
treatment.
The
claimant indicated that at some point, she told Charland she
was probably going to file a claim because she was not
getting any better. He told her to go ahead, so she called
Paradiso Insurance Agency (Paradiso), the workers’
compensation insurance agency for the employer, and told a
representative there that she needed to file a claim. The
Paradiso office is located one street over from the
claimant’s office; after leaving several messages
trying to get an appointment, she finally went to the office
and sat there until Stephanie Fanelli helped her to complete
a First Report of Injury (FRI). The claimant testified that
Fanelli kept telling her not to “worry about it”
because she had two years to file a claim. November 20, 2018
Transcript, p. 18. The claimant further testified that she
specifically told Charland and Fanelli that she wanted to
file a workers’ compensation claim. See id.
The
claimant indicated that she was not aware of any specific
time frame for filing a workers’ compensation claim in
Connecticut, and she relied on what Fanelli had told her,
which was that she had two years to file a claim and that
Fanelli would file the claim for her. The claimant thought
the FRI was her claim. After completing the FRI, BerkleyNet
sent her a letter and a pharmacy card; her understanding upon
receiving the letter was that a claim had been opened.
On
November 22, 2016, she received a phone call from a
BerkleyNet representative to whom she gave a recorded
statement over the telephone that lasted approximately
twenty-five minutes. Her understanding of the purpose of the
telephone statement was for BerkleyNet to learn exactly what
had occurred in the incident and the treatment she had
received so she could continue with the claim.
On
March 27, 2017, the claimant received correspondence from
BerkleyNet indicating that the insurer wanted her to submit
to an examination. The first sentence of the letter stated
that “[i]n accordance with your Workers’
Compensation claim from Friday, November 27, 2015, BerkleyNet
Underwriters has arranged for you to be
examined….” Claimant’s Exhibit A. The
claimant testified that the wording of the letter gave her an
additional reason to believe that she had a pending
workers’ compensation claim. The claimant indicated
that BerkleyNet also sent the claimant to Raymond J.
Sullivan, M.D., and Jon C. Driscoll, M.D., as well as to a
pain clinic. [2] The purpose of each visit was for an
evaluation; no treatment was ever offered.[3]
It was
the claimant’s understanding that on November 16, 2016,
she commenced a workers’ compensation claim. However,
she testified that as of the date of the formal hearing on
November 20, 2018, she had received no workers’
compensation benefits for her injuries. Based on her filing
of the FRI, her receipt of documentation, correspondence, and
a prescription card from the respondent insurer, the medical
examinations at the behest of the respondent insurer, and the
fact that a claim number had been assigned to her case, the
claimant believed the insurer had received and was evaluating
her claim. The claimant therefore “[asserted] that the
totality of [the] circumstances should result in a finding
that the Respondent was aware of her claim within one year of
her date of injury.” Findings, ¶ 6.
At
trial, the respondents did not dispute that an incident
occurred at the workplace on November 27, 2015. However, they
argued that the Workers’ Compensation Commission
(commission) was deprived of subject matter jurisdiction
because the claimant did not file a notice of claim
(“form 30C”) within one year of the date of
injury, in accordance with the provisions of General Statutes
§ 31-294c (a), and none of the statutory requirements
for the exceptions set forth in General Statutes §
31-294c (c) were satisfied.[4]
The
commissioner took administrative notice of a form 30C dated
June 29, 2017, which was received by the commission on July
3, 2017. A second copy of the same form 30C was received by
the commission on July 26, 2017. The commissioner also took
administrative notice of a denial of claim (“form
43”) received by the commission on July 26, 2017, in
which the respondents challenged jurisdiction and
compensability. In addition, the commissioner took
administrative notice of the fact that the first hearing
request in this matter was received from claimant’s
counsel on July 28, 2017, and the first hearing was held on
August 21, 2017.
On the
basis of the foregoing, the commissioner concluded that the
claimant did not file a form 30C within one year of November
27, 2015; no hearing was held, and none was requested, within
one year of November 27, 2015; no voluntary agreement was
ever issued; and the respondents did not provide the claimant
with any medical or surgical care. The commissioner
determined that because the claimant failed to meet the
statutory requirements for filing a claim set forth in §
31-294c, the commission lacked subject matter jurisdiction.
The commissioner denied and dismissed the claim in its
entirety.
The
claimant has raised several claims of error relative to this
decision. She contends that the commissioner, in denying and
dismissing the claim, failed to consider the totality of
circumstances in this matter and his decision was therefore
inconsistent with the law. She also argues that the
commissioner erroneously failed to “conclude that
public policy and the remedial purpose of the workers’
compensation act warrants the compensability of the …
claim under the facts and circumstances that were
presented.” Appellant’s Brief, p. 12. Finally,
the claimant maintains that the commissioner erroneously
failed to conclude that the respondents should have been
estopped from raising the issue of jurisdiction relative to...
