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*********************************************** 
GARY SALERNO v. LOWE’S HOME

IMPROVEMENT CENTER ET AL.

(AC 42344)

Alvord, Elgo and Eveleigh, Js.

Syllabus

The defendant employer and its workers’ compensation insurer appealed

to this court from the decision of the Compensation Review Board,

which affirmed the decision of the Workers’ Compensation Commissioner granting the plaintiff employee’s motion to preclude the defendants from contesting the compensability of his injuries pursuant to

statute (§ 31-294c (b)). The defendants received the plaintiff’s notice of

claim for compensation but did not file any response until eighteen

months later, when they filed a form 43 in which they contested liability

for his injuries. The commissioner found that the plaintiff properly filed

his notice of claim and that the defendants had not paid him for any of

his lost time from work or for any of his medical treatment related to

his claim for compensation. The defendants appealed to the board,

claiming that the exception to the preclusion provision in § 31-294c (b)

recognized in Dubrosky v. Boehringer Ingelheim Corp. (145 Conn. App.

261) was applicable because the plaintiff’s failure to present a claim for

medical or indemnity benefits within the twenty-eight day time period

mandated by § 31-294c (b) made it impossible for the defendants to

avail themselves of the one year safe harbor provision of § 31-294c (b),

which permits an employer to contest the employee’s right to receive

compensation on any grounds or the extent of the employee’s disability

when the employer has failed to contest liability for the plaintiff’s injuries

within the twenty-eight day time period but commences payment within

the twenty-eight day time period. The board rejected the defendants’

claim that the exception recognized in Dubrosky was applicable and

affirmed the commissioner’s decision. Held that the board properly

determined that the defendants were precluded from contesting their

liability for the plaintiff’s injuries; the defendants did not accept liability

for the plaintiff’s injuries, they belatedly filed a form 43 in which they

denied liability, they did not pay the plaintiff for any of his lost time

from work or for his medical treatment, and this court declined to

extend the exception to the preclusion provision of § 31-294c (b) for

the reasons stated in Dominguez v. New York Sports Club (198 Conn.

App. 854), which this court released today, as the complex nature of

the workers’ compensation scheme required that policy determinations

and the creation of exceptions to § 31-294c (b) be left to the legislature.

Argued January 13—officially released July 14, 2020

Procedural History

Appeal from the decision of the Workers’ Compensation Commissioner for the Sixth District granting

the plaintiff’s motion to preclude the defendants from

contesting liability as to his claim for certain workers’

compensation benefits, brought to the Compensation Review Board, which affirmed the commissioner’s

decision, and the defendants appealed to this court.

Affirmed.

Paul M. Shearer, for the appellants (defendants).

Robert C. Lubus, Jr., with whom, on the brief, were

Richard O. LaBrecque and Donald J. Trella, for the

appellee (plaintiff).
Opinion

ELGO, J. The defendant employer, Lowe’s Home

Improvement Center,1 appeals from the decision of the

Compensation Review Board (board) affirming the

decision of the Workers’ Compensation Commissioner

(commissioner), who concluded that the defendant was

precluded under General Statutes § 31-294c (b) from

contesting both liability for, and the extent of, repetitive

trauma injuries allegedly sustained by the plaintiff, Gary

Salerno. On appeal, the defendant claims that the board

improperly concluded that the present case did not fall

within the narrow exception to the preclusion provision

of § 31-294c (b) recognized by this court in Dubrosky

v. Boehringer Ingelheim Corp., 145 Conn. App. 261, 76

A.3d 657, cert. denied, 310 Conn. 935, 78 A.3d 859 (2013).

We disagree and, accordingly, affirm the decision of

the board.

Relevant to this appeal are the following facts found

by the commissioner. From March 3, 2006 to December

19, 2012, the plaintiff was employed by the defendant

as a sales specialist in its plumbing department, which

required him to lift heavy objects.2 On November 27,

2013, the plaintiff completed a form 30C,3

in which he

sought compensation for a repetitive trauma injury

to his lumbar spine that he allegedly sustained as a

result of ‘‘lifting’’ items in the course of his employment with the defendant. The Workers’ Compensation

Commission received the plaintiff’s notice of his claim

for compensation on November 29, 2013; the defendant

received it prior to December 3, 2013. Over the next

eighteen months, the defendant did not file any

response to the plaintiff’s notice. In addition, the commissioner expressly found that the defendant ‘‘did not

pay the [plaintiff] for any of his lost time from work or

for any of the medical treatment related to the repetitive

trauma claim [for compensation].’’

On June 18, 2015, the defendant filed a belated form

43,4

in which it contested liability for the plaintiff’s injuries.5

In response, the plaintiff filed a motion to preclude

pursuant to § 31-294c (b) on July 13, 2015. A formal

hearing was held before the commissioner on February

11, 2016. In his subsequent decision, the commissioner

found that the plaintiff properly had filed a notice of

his claim for compensation. The commissioner further

found that the defendant ‘‘neither timely disclaimed nor

paid the [plaintiff’s] indemnity or medical costs in order

to avail itself of the safe harbor provision [of] § 31-294c.’’6

On that basis, the commissioner granted the plaintiff’s

motion to preclude.

The defendant then filed a petition for review with

the board, claiming that the present case fell within the

narrow exception to the preclusion provision of § 31-

294c (b) articulated by this court in Dubrosky v. Boehringer Ingelheim Corp., supra, 145 Conn. App. 261.7
The board disagreed and affirmed the decision of the

commissioner, and this appeal followed.

On appeal, the defendant challenges the board’s conclusion that the Dubrosky exception does not apply in

the present case. Specifically, it claims that ‘‘[t]he plaintiff’s failure to present a claim for medical or indemnity

benefits within the twenty-eight day statutory period

following the filing of the form 30C made it impossible

for the [defendant] to avail [itself] of the one year safe

harbor’’ of § 31-294c (b). For that reason, the defendant

submits that ‘‘[t]he facts in this case are indistinguishable from the facts in Dubrosky.’’ We disagree.

In Dubrosky, the defendant employer accepted that

an incident had occurred but sought to maintain its

ability to contest the extent of the plaintiff’s disability.

Dubrosky v. Boehringer Ingelheim Corp., supra, 145

Conn. App. 266. That employer also paid all medical bills

submitted to it by the plaintiff’s physician. Id., 265. Given

those unique circumstances, this court concluded ‘‘that,

under the facts of this case, it was not reasonably practical for the board to require the defendant to have complied with § 31-294c (b) . . . .’’ (Emphasis added.) Id.,

267. As we recently explained, ‘‘[t]his court held [in

Dubrosky] that, under such circumstances, when a

defendant employer does not challenge the claim of a

work-related injury, but challenges only the extent of

the plaintiff’s disability, strict compliance with the

twenty-eight day statutory time frame to begin payment

of benefits will be excused when it is impossible for the

[employer] to comply.’’ Woodbury-Correa v. Reflexite

Corp., 190 Conn. App. 623, 638, 212 A.3d 252 (2019),

citing Dubrosky v. Boehringer Ingelheim Corp.,

supra, 273–75.

Unlike the defendant employer in Dubrosky, the

defendant here has not accepted liability for the plaintiff’s injuries. Rather, it filed a belated form 43 in which

it denied liability. Moreover, as the commissioner found

in his decision, the defendant ‘‘did not pay the [plaintiff]

for any of his lost time from work or for any of the medical treatment related to the repetitive trauma claim

[for compensation].’’ Contrary to the contention of the

defendant, this case is patently distinguishable from

Dubrosky. Accordingly, the board properly determined

that the defendant was precluded from contesting its

liability for the plaintiff’s injuries. See Woodbury-Correa v. Reflexite Corp., supra, 190 Conn. App. 639.

To the extent that the defendant invites us to extend

the narrow exception to the preclusion provision articulated in Dubrosky, we decline to do so for the reasons

set forth in Dominguez v. New York Sports Club, 198

Conn. App. 854, A.3d (2020), which also was

released today. In so doing, we reiterate that ‘‘[i]t is not

the court’s role to acknowledge an exclusion when the

legislature painstakingly has created such a complete

statute. We consistently have acknowledged that the
act is an intricate and comprehensive statutory scheme.

. . . The complex nature of the workers’ compensation

system requires that policy determinations should be

left to the legislature, not the judiciary.’’ (Citations omitted; internal quotation marks omitted.) McCullough v.

Swan Engraving, Inc., 320 Conn. 299, 310, 130 A.3d

231 (2016); see also Wiblyi v. McDonald’s Corp., 168

Conn. App. 92, 107, 144 A.3d 530 (2016) (‘‘we will not

recognize, in the absence of legislative action’’ new

exception to § 31-294c (b)); Izikson v. Protein Science

Corp., 156 Conn. App. 700, 713, 115 A.3d 55 (2015)

(expressly declining ‘‘to carve out another exception’’

to statutory scheme embodied in § 31-294c ‘‘because

we believe that the legislature, rather than this court,

is the proper forum through which to create’’ additional

exceptions to that statute).

The decision of the Compensation Review Board is

affirmed.

In this opinion the other judges concurred.

1 Both the defendant employer, Lowe’s Home Improvement Center, and

its insurer, Sedgwick CMS, Inc., were named as defendants in this matter.

For convenience, we refer to Lowe’s Home Improvement Center as the

defendant.

2 As the board recounted in its decision, the plaintiff’s ‘‘job required the

repetitive lifting of heavy plumbing fixtures, some of which weighed over

100 pounds. The [plaintiff] experienced increasing difficulty lifting heavy

objects until he was ultimately unable to do his job in December, 2012. He

reported worsening sciatic pain down his right leg and eventually reached

a point where he could no longer walk for more than ten or fifteen minutes

without having to stop and rest. In December, 2012, he stopped working

and consulted his family physician . . . who, in January, 2013, prescribed

physical therapy. When this treatment did not result in long-term relief,

[the physician] referred the [plaintiff] to [a neurosurgeon who] ordered [a

magnetic resonance imaging scan] and suggested pain management and an

injection, neither of which provided any relief. [The neurosurgeon] then

recommended an L4–5 lumbar fusion, which he performed on June 17, 2013.’’

3

‘‘A form 30C is the form prescribed by the [W]orkers’ [C]ompensation

[C]ommission . . . for use in filing a notice of claim under the [Workers’

Compensation Act, General Statutes § 31-275 et seq.].’’ (Internal quotation

marks omitted.) Carter v. Clinton, 304 Conn. 571, 576 n.4, 41 A.3d 296 (2012).

4

‘‘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. . . . The form 43 generally must be filed within twenty-eight

days of receiving written notice of the claim.’’ (Citation omitted; emphasis

added; internal quotation marks omitted.) Wiblyi v. McDonald’s Corp., 168

Conn. App. 77, 79 n.2, 144 A.3d 1075 (2016).

5

In the portion of the form titled ‘‘Reason(s) for Contest,’’ the defendant

stated: ‘‘Alleged injury/disability for both body parts, does not arise out of

or in the course of employment. Claim is also time barred.’’

6 Under the one year safe harbor provision embodied in § 31-294c (b), an

employer that fails to timely contest liability for the plaintiff’s injuries within

the twenty-eight day time period in § 31-294c (b) but that commences payment within that twenty-eight day time period is granted a one year period

in which to contest the employee’s right to receive compensation on any

grounds or to contest the extent of the employee’s disability. See Dominguez

v. New York Sports Club, 198 Conn. App. 854, 874, A.3d (2020); see

also General Statutes § 31-294c (b).

7 The defendant also argued that the plaintiff’s claim for compensation,

as memorialized in his form 30C, was ‘‘too vague to support preclusion.’’

The board rejected that contention, and the defendant does not contest the

propriety of the board’s determination in this appeal.