Britto v. Bimbo Foods, Inc.

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JOHN J. BRITTO v. BIMBO
FOODS, INC., ET AL.
(AC 44844)
Moll, Seeley and Lavine, Js.

Syllabus

Pursuant to statute (§ 31-294c (b)), whenever liability to pay workers’ com-
pensation is contested by an employer, the employer shall file with the
Workers’ Compensation Commissioner, on or before the twenty-eighth
day after receipt of a written notice of claim, a proper notice denying lia-
bility.
The plaintiff employee appealed to this court from the decision of the
Compensation Review Board affirming the decision of the Workers’
Compensation Commissioner denying his motion to preclude the defen-
dant employer from contesting liability as to his injuries pursuant to
§ 31-294c (b). The plaintiff filed a form 30C notice of claim with the
Workers’ Compensation Commission and, on the same day, the plaintiff’s
counsel sent by certified mail a copy of the form 30C to the defendant.
The envelope was returned to the plaintiff with a marking indicating
that it was undeliverable as addressed. Shortly thereafter, the plaintiff’s
counsel personally provided a copy of the form 30C to the defendant’s
counsel, who filed a form 43 denying the claim that same day. The
plaintiff’s motion claimed that the defendant was precluded from con-
testing liability on the ground that the defendant never accepted the
certified mail containing the form 30C and that the form 43 filed by the
defendant was untimely. In denying the plaintiff’s motion, the commis-
sioner concluded that the form 30C sent by certified mail was not
delivered to the defendant and, therefore, that the defendant did not
receive proper notice of the plaintiff’s claim at that time. On appeal,
the board affirmed the commissioner’s decision, concluding that the
commissioner’s determination that the defendant did not receive proper
notice of the form 30C until it was provided personally to the defendant’s
counsel was supported by the finding that the mail carrier never deliv-
ered the form 30C to the defendant, a finding that the board determined
was supported by the record. Held that the board properly affirmed the
commissioner’s denial of the plaintiff’s motion to preclude: the commis-
sioner found that the defendant did not receive the form 30C that was
sent by certified mail, rather, the defendant received the form 30C for
the first time by way of subsequent personal service on its counsel,
such that its form 43 was timely filed, and this court agreed with the
board’s conclusion that the commissioner’s findings were supported by
evidence in the record, including that the envelope containing the form
30C was returned to the plaintiff with a marking reflecting that the
envelope was undeliverable as addressed; moreover, this court declined
to disturb the commissioner’s determination that the testimony of the
plaintiff’s expert witness, a retired postal worker, which, according
to the plaintiff, demonstrated that the form 30C was delivered to the
defendant but the defendant rejected it, was not credible; furthermore,
this court rejected the plaintiff’s reliance on the mailbox rule and his
assertion that the board and the commissioner improperly imposed on
him the burden to establish that the form 30C was returned to him
because the defendant had rejected it, even assuming that the mailbox
rule applied, the presumption of delivery could not withstand the com-
missioner’s determination, as supported by the record, that delivery of
the form 30C never occurred because, as the board stated in its decision,
the ‘‘undeliverable as addressed’’ marking on the envelope containing
the form 30C that was returned to the plaintiff suggested that the form
was never presented to a responsible party who refused to accept it.
Argued October 11—officially released December 27, 2022

Procedural History

Appeal from the decision of the Workers’ Compensa-
tion Commissioner for the Fourth District denying the
plaintiff’s motion to preclude the defendants from con-
testing liability as to his claim for certain workers’ com-
pensation benefits, brought to the Compensation
Review Board, which affirmed the commissioner’s deci-
sion, and the named defendant appealed to this court.
Affirmed.
David V. DeRosa, with whom, on the brief, was Victor
Ferrante, for the appellant (plaintiff).
Clayton J. Quinn, with whom, on the brief, was Anna
C. Borea, for the appellee (named defendant).
Opinion

MOLL, J. The plaintiff, John J. Britto, appeals from the
decision of the Compensation Review Board (board)
affirming the decision of the Workers’ Compensation
Commissioner for the Fourth District (commissioner)1
denying the plaintiff’s motion to preclude the named
defendant, Bimbo Foods, Inc.,2 from contesting liability
as to his claimed bilateral knee injury stemming from
repetitive trauma.3 On appeal, the plaintiff claims that
the board improperly affirmed the commissioner’s
denial of his motion to preclude, which was predicated
on the commissioner’s determination that the defendant
did not receive the notice of claim that the plaintiff sent
to it by certified mail. We disagree and, accordingly,
affirm the decision of the board.
The following facts, as found by the commissioner
and which are not in dispute, and procedural history
are relevant to this appeal. On December 12, 2017, the
plaintiff filed a form 30C4 with the Workers’ Compensa-
tion Commission for the Fourth District (commission),
alleging that he had sustained a compensable bilateral
knee injury stemming from repetitive trauma5 during
the course of his employment with the defendant.6 On
the same day, the plaintiff’s counsel sent, by certified
mail, a copy of the form 30C to the defendant. The
envelope with the form 30C enclosed was addressed
to the defendant at ‘‘328 Selleck Street #A’’ in Stamford,
on which premises is a building with ‘‘a very noticeable
sign . . . which reads ‘Office (with an arrow pointing
to the left) 328 Selleck Street A.’ ’’ On January 10, 2018,
the envelope was returned to the plaintiff with a
stamped marking that read, inter alia, ‘‘[u]ndeliverable
as addressed [and] [u]nable to forward.’’ The envelope
had additional markings indicating that the mail carrier
had attempted delivery on three separate occasions in
December, 2017. On January 18, 2018, during an infor-
mal hearing held in a different workers’ compensation
proceeding,7 the plaintiff’s counsel personally provided
to the defendant’s counsel a copy of the form 30C.
The same day, the defendant’s counsel filed a form 438
denying the bilateral knee injury claim.
On December 10, 2018, pursuant to General Statutes
§ 31-294c (b), the plaintiff filed a motion to preclude
the defendant from contesting liability as to the bilateral
knee injury claim.9 The plaintiff contended that the
defendant ‘‘never accepted the certified mail of the form
30C,’’ and that the form 43 filed by the defendant on
January 18, 2018, was untimely. The commissioner held
formal hearings on the motion to preclude on April 29,
September 16, and October 28, 2019, during which the
commissioner heard testimony from multiple witnesses
and admitted several exhibits, in full, into the record,
including the envelope containing the form 30C that
was returned to the plaintiff.
On May 21, 2020, the commissioner denied the plain-
tiff’s motion to preclude. The commissioner stated that
she ‘‘[did] not accept the [plaintiff’s] position in this
matter. . . . [T]he form 30C alleging bilateral knee
repetitive trauma was not delivered [by certified mail]
to the [defendant]. Although the certified envelope had
the correct address for the [defendant], and despite the
clear and bold signage on the building indicating where
the office for the [defendant] was located, for reasons
unknown, the mail carrier failed to deliver the notice
to the [defendant]. The form 30C was returned to the
[plaintiff] on January 10, 2018. The outside of the enve-
lope was marked ‘[u]ndeliverable.’ Therefore, the
[defendant] did not receive proper notice when the
[plaintiff] initially filed the claim in December of 2017.’’
The commissioner further determined that the defen-
dant filed a timely form 43 denying the claim on January
18, 2018, the same day that the plaintiff’s counsel per-
sonally provided to the defendant’s counsel a copy of
the form 30C. On June 18, 2020, the plaintiff filed a
motion to correct, which the commissioner denied on
July 10, 2020. On July 29, 2020, the plaintiff filed a
petition for review with the board.
On appeal to the board, the plaintiff asserted that he
served the defendant with the form 30C in accordance
with General Statutes § 31-321 by sending, by certified
mail, the form 30C to the defendant’s place of business,
such that the commissioner should have drawn the
inference that the form 30C was delivered to the defen-
dant but the defendant failed to accept it. Under such
circumstances, the plaintiff posited, the form 43 filed
by the defendant on January 18, 2018, was untimely. In
reply, the defendant argued, inter alia, that it was not
served with the form 30C by certified mail, as the com-
missioner’s findings reflected that the form 30C was
returned to the plaintiff because it was ‘‘ ‘[u]ndelivera-
ble as addressed . . . .’ ’’ Moreover, the defendant con-
tended that there was no evidence in the record indicat-
ing that it had refused to accept service of the form 30C.
On July 2, 2021, the board affirmed the commission-
er’s denial of the plaintiff’s motion to preclude. The
board concluded that the commissioner’s determina-
tion that the defendant did not receive proper notice
of the form 30C until January 18, 2018, when the form
30C was provided, in person, to the defendant’s counsel,
was supported by the commissioner’s finding that the
mail carrier never delivered the form 30C sent by certi-
fied mail to the defendant, a finding that the board
determined to be supported by the record. As for the
plaintiff’s assertion that the commissioner should have
inferred delivery of the form 30C because it was sent
via certified mail in accordance with § 31-321, the board
noted that the commissioner expressly found, on the
basis of the evidence adduced at the formal hearings,
that the form 30C never was delivered to the defendant
by certified mail. The board opined in a footnote that
‘‘[t]o assume that a properly addressed and mailed piece
of mail was received may make sense in some cases,
but not in a case such as this when we know for a fact
[that] it was returned to the [plaintiff] as undelivered.’’
The board further stated that, ‘‘in the absence of further
credited evidence,’’ the envelope with the form 30C
enclosed that was returned to the plaintiff suggested
that the form 30C had not been presented to and refused
by a responsible party acting on the defendant’s behalf.
This appeal followed. Additional facts will be set forth
as necessary.
On appeal, the plaintiff claims that, in affirming the
commissioner’s denial of his motion to preclude, the
board improperly sustained the commissioner’s deter-
mination that the defendant did not receive the form
30C that the plaintiff sent to it by certified mail. The
plaintiff maintains that he satisfied the statutory
requirements of §§ 31-294c and 31-321 by sending, via
certified mail, the form 30C to the defendant’s place
of business, and that the commissioner and the board
incorrectly imposed an additional requirement on him
to demonstrate that the form 30C was returned as a
result of the defendant’s refusal to accept it. Relying
on the doctrine known as the mailbox rule,10 the plaintiff
contends that delivery of the form 30C should have
been presumed and that the burden should have fallen
on the defendant to establish that it did not receive
the form 30C. The plaintiff further contends that the
commissioner’s findings were not supported by compe-
tent evidence. We reject these claims.
We begin by setting forth the governing standard of
review and relevant legal principles. ‘‘The standard of
review in workers’ compensation appeals is well estab-
lished. When the decision of a commissioner is appealed
to the board, the board is obligated to hear the appeal
on the record of the hearing before the commissioner
and not to retry the facts. . . . The commissioner has
the power and duty, as the trier of fact, to determine
the facts. . . . The conclusions drawn by [the commis-
sioner] 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 unrea-
sonably drawn from them. . . .
‘‘[O]n review of the commissioner’s findings, the
[board] does not retry the facts nor hear evidence. It
considers no evidence other than that certified to it by
the commissioner, and then for the limited purpose
of determining whether or not the finding should be
corrected, or whether there was any evidence to sup-
port in law the conclusions reached. It cannot review
the conclusions of the commissioner when these
depend upon the weight of the evidence and the credi-
bility of witnesses. . . . Our scope of review of the
actions of the board is similarly limited. . . . The role
of this court is to determine whether the . . . [board’s]
decision results 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.) Arrico v. Board of Education, 212
Conn. App. 1, 18, 274 A.3d 148 (2022).
‘‘[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 the board. . . . Cases that present
pure questions of law, however, invoke a broader stan-
dard 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 dis-
cretion. . . . We have determined, therefore, that the
traditional deference accorded to an agency’s interpre-
tation of a statutory term is unwarranted when the
construction of a statute . . . has not previously been
subjected to judicial scrutiny [or to] . . . a governmen-
tal agency’s time-tested interpretation . . . . Further-
more, [i]t is well established that, in resolving issues
of statutory construction under the [Workers’ Compen-
sation Act (act), General Statutes § 31-275 et seq.], we
are mindful that the act indisputably is a remedial stat-
ute that should be construed generously to accomplish
its purpose. . . . The humanitarian and remedial pur-
poses of the act counsel against an overly narrow con-
struction that unduly limits eligibility for workers’ com-
pensation. . . . Accordingly, [i]n construing workers’
compensation law, we must resolve statutory ambigu-
ities or lacunae in a manner that will further the reme-
dial purpose of the act. . . . [T]he purposes of the act
itself are best served by allowing the remedial legisla-
tion a reasonable sphere of operation considering those
purposes.’’ (Internal quotation marks omitted.) DeJesus
v. R.P.M. Enterprises, Inc., 204 Conn. App. 665, 677–78,
255 A.3d 885 (2021); see also General Statutes § 1-2z.
‘‘[Section] 31-294c governs notice of claims for work-
ers’ compensation benefits.’’ Mehan v. Stamford, 127
Conn. App. 619, 625, 15 A.3d 1122, cert. denied, 301
Conn. 911, 19 A.3d 180 (2011). Section 31-294c provides
in relevant part: ‘‘(a) No proceedings for compensation
under the provisions of [the act] shall be maintained
unless a written notice of claim for compensation is
given within one year from the date of the accident or
within three years from the first manifestation of a
symptom of the occupational disease, as the case may
be, which caused the personal injury . . . . If an
employee, other than an employee of the state or a
municipality, opts to mail to his or her employer the
written notice of a claim for compensation required
under the provisions of this section, such written notice
shall be sent by the employee to the employer by certi-
fied mail. . . .’’
Section 31-294c (b) sets forth the ‘‘strict standards’’
imposed on an employer seeking to contest liability.
Mehan v. Stamford, supra, 127 Conn. App. 626. Section
31-294c (b) provides in relevant part: ‘‘Whenever liabil-
ity 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 Commis-
sion . . . . If the employer or his legal representative
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 . . . 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, provided
the employer shall not be required to commence pay-
ment of compensation when the written notice of claim
has not been properly served in accordance with section
31-321 or when the written notice of claim fails to
include a warning that (1) the employer, if he has com-
menced payment for the alleged injury . . . on or
before the twenty-eighth day after receiving a written
notice of claim, shall be precluded from contesting lia-
bility unless a notice contesting liability is filed within
one year from the receipt of the written notice of claim,
and (2) the employer shall be conclusively presumed
to have accepted the compensability of the alleged
injury . . . unless the employer either files a notice
contesting liability on or before the twenty-eighth day
after receiving a written notice of claim or commences
payment for the alleged injury . . . on or before such
twenty-eighth day. . . . Notwithstanding the provi-
sions of this subsection, an employer who fails to con-
test liability for an alleged injury . . . on or before the
twenty-eighth day after receiving a written notice of
claim and who fails to commence payment for the
alleged injury . . . on or before such twenty-eighth
day, shall be conclusively presumed to have accepted
the compensability of the alleged injury . . . .’’
Section 31-321 provides in relevant part: ‘‘Unless oth-
erwise specifically provided, or unless the circum-
stances of the case or the rules of the commission direct
otherwise, any notice required under [the act] to be
served upon an employer, employee or commissioner
shall be by written or printed notice, service personally
or by registered or certified mail addressed to the per-
son upon whom it is to be served at the person’s last-
known residence or place of business. . . .’’
It is undisputed that the plaintiff, by certified mail,
sent the form 30C to the defendant, in accordance with
§ 31-294c (a);11 however, our inquiry does not end there.
Pursuant to § 31-294c (b), an employer seeking to con-
test liability vis-à-vis an employee’s claimed injury must
file a proper notice denying liability within twenty-eight
days following the employer’s receipt of the employee’s
notice of claim. See General Statutes § 31-294c (b).
Thus, in order to ascertain when the twenty-eight day
filing period commences under § 31-294c (b), the date
on which the employer received the employee’s notice
of claim must be determined. In the present case, the
commissioner found that the defendant did not receive
the form 30C sent by the plaintiff via certified mail on
December 12, 2017; instead, as the commissioner found,
the defendant received the form 30C for the first time
on January 18, 2018, by way of personal service on its
counsel, such that the defendant’s form 43, which was
filed on the same day, was timely. We agree with the
board’s conclusion that the commissioner’s findings are
supported by evidence in the record, including the enve-
lope containing the form 30C that was returned to the
plaintiff with a marking reflecting, inter alia, that the
envelope was ‘‘[u]ndeliverable as addressed . . . .’’12
With regard to the envelope with the form 30C
enclosed that was returned to him, the plaintiff asserts
that the commissioner improperly disregarded the testi-
mony of Jonathan Delvecchio, a retired United States
Postal Service mail carrier whom the plaintiff called as
an expert witness during the formal hearing held on
September 16, 2019. Delvecchio testified in relevant
part that the marking on the envelope reading, inter
alia, ‘‘[u]ndeliverable as addressed’’ originated from ‘‘a
generic stamp [that] goes on anything that has to be
returned’’ for ‘‘[a]ny reason.’’ Delvecchio further testi-
fied that, in his opinion, the envelope was ‘‘handled
correctly’’ and was returned to the plaintiff ‘‘[b]ecause it
wasn’t delivered, [i]t wasn’t signed for by the recipient.’’
The plaintiff contends that Delvecchio’s testimony dem-
onstrates that the form 30C was delivered to the defen-
dant but the defendant rejected it. In denying the plain-
tiff’s motion to preclude, however, the commissioner
stated that she ‘‘[did] not accept the [plaintiff’s] position
in this matter,’’ and that she relied on the marking on
the envelope reading, inter alia, that it was ‘‘ ‘[u]ndeliv-
erable’ ’’ to determine that ‘‘the [defendant] did not
receive proper notice when the [plaintiff] initially filed
the claim in December of 2017.’’ We construe these
statements to reflect that the commissioner did not find
Delvecchio’s testimony to be credible. ‘‘[T]he power and
duty of determining the facts rests on the commissioner,
who is the trier of fact. . . . This authority to find the
facts entitles the commissioner to determine the weight
of the evidence presented and the credibility of the
testimony offered by lay and expert witnesses.’’ (Inter-
nal quotation marks omitted.) Sprague v. Lindon Tree
Service, Inc., 80 Conn. App. 670, 675, 836 A.2d 1268
(2003). We will not, on appeal, disturb the commission-
er’s credibility determinations.
We also reject the plaintiff’s reliance on the mailbox
rule and his assertion that the board and the commis-
sioner improperly imposed on him the burden to estab-
lish that the form 30C was returned to him following
delivery to the defendant because the defendant had
rejected it. Put simply, even assuming arguendo that
the mailbox rule applies in this case, the presumption
of delivery cannot withstand the commissioner’s deter-
mination, as supported by the record, that delivery of
the form 30C, in fact, never occurred. Moreover, without
delivery of the form 30C, there could not have been
any burden placed on the plaintiff to demonstrate that
the defendant had rejected the form 30C following deliv-
ery.
The plaintiff cites this court’s decision in Black v.
London & Egazarian Associates, Inc., 30 Conn. App.
295, 620 A.2d 176, cert. denied, 225 Conn. 916, 623 A.2d
1024 (1993), and the board’s decision in Morgan v. Hot
Tomato’s, Inc., No. 4377, CRB 3-01-3 (January 30, 2002),
to support his claims. The plaintiff’s reliance on these
decisions is misplaced.
In Black, on appeal following a decision of the board
affirming a workers’ compensation commissioner’s
denial of a motion to preclude, this court concluded in
relevant part that a deceased employee’s widow had
complied with § 31-321 when the undisputed facts dem-
onstrated that a postal worker had delivered a notice
of claim sent, via certified mail, by the widow to the
employer. Black v. London & Egazarian Associates,
Inc., supra, 30 Conn. App. 296–98, 299–301. The facts
further established that the postal worker had
attempted to obtain a signature for the delivery, but
the sole individual present at the employer’s office at
the time of delivery, who was not an employee or an
authorized representative of the employer, had refused
to provide a signature, causing the postal worker to
leave the notice of claim on a receptionist’s desk in the
office. Id., 298. This court determined that the filing
period for the employer to contest liability commenced
on delivery of the notice of claim; id., 304; and that the
employer and its insurer could not ‘‘avoid the conse-
quences of ignoring [the notice of claim] merely because
no responsible agent or employee was present in the
office to accept delivery or to attend to the matter once
the letter was delivered.’’ Id., 301. Unlike the present
case, the facts in Black established that the notice of
claim was delivered to the employer but that the
employer’s own actions prevented it from becoming
privy to the notice of claim at the time of delivery.
Id., 301, 304. Thus, Black is distinguishable from the
present case.
In Morgan, the facts reflected that, after sustaining
an injury at work, an employee sent, via certified mail,
a letter accompanied by a form 30C to her employer.
Morgan v. Hot Tomato’s, Inc., No. 4377, supra. After
five failed attempts to deliver the letter to the employer,
the postal service returned the letter to the employee
as ‘‘unclaimed mail.’’ Id. The employer filed a form 43
more than two months after the last attempted delivery
of the letter. Id. The employee then filed a motion to
preclude, which a workers’ compensation commis-
sioner granted. Id. The commissioner stated that there
was ‘‘ ‘substantial evidence’ indicat[ing] that the postal
service attempted to obtain the signature of a . . . rep-
resentative [of the employer] on five occasions,’’ such
that the employee had complied with the notice require-
ments of § 31-294c (a). Id. On appeal, the board affirmed
the commissioner’s decision, concluding that, ‘‘[u]nder
our law, an employer may be held accountable for its
failure to receive notice, should the facts permit the
trier to infer that the employer was partially or wholly
at fault for the unsuccessful delivery of certified mail.
The trier drew such an inference here, which was not
unreasonable given the evidence.’’ Id. In the present
case, unlike in Morgan, the commissioner did not infer
from the facts that the defendant was partially or wholly
at fault for the mail carrier’s failure to deliver the form
30C. Morgan does not mandate a different outcome, as
we remain mindful that ‘‘[i]t is within the discretion of
the commissioner alone to determine the credibility of
witnesses and the weighing of the evidence. It is . . .
immaterial that the facts permit the drawing of diverse
inferences. The [commissioner] alone is charged with
the duty of initially selecting the inference which seems
most reasonable, and [the commissioner’s choice], if
otherwise sustainable, may not be disturbed by a
reviewing court.’’ (Internal quotation marks omitted.)
Ayna v. Graebel/CT Movers, Inc., 133 Conn. App. 65,
71, 33 A.3d 832, cert. denied, 304 Conn. 905, 38 A.3d
1201 (2012). As the board stated in its decision, the
‘‘ ‘[u]ndeliverable as addressed’ ’’ marking on the enve-
lope containing the form 30C that was returned to the
plaintiff, ‘‘in the absence of further credited evidence,
suggests that [the form 30C] was never presented to a
responsible party who refused to accept [it].’’ For these
reasons, Morgan does not advance the plaintiff’s posi-
tion.
In sum, we conclude that the board properly affirmed
the commissioner’s denial of the plaintiff’s motion to
preclude.13
The decision of the Compensation Review Board is
affirmed.
In this opinion the other judges concurred.
1
General Statutes (Supp. 2022) § 31-275d (a) (1), effective as of October
1, 2021, provides in relevant part that, ‘‘[w]herever the words ‘workers’
compensation commissioner’, ‘compensation commissioner’ or ‘commis-
sioner’ are used to denote a workers’ compensation commissioner in [several
enumerated] sections of the general statutes, [including sections contained
in the Workers’ Compensation Act, General Statutes § 31-275 et seq.] the
words ‘administrative law judge’ shall be substituted in lieu thereof . . . .’’
As all events underlying this appeal occurred prior to October 1, 2021,
we will refer to the workers’ compensation commissioner who denied the
plaintiff’s motion to preclude as the commissioner and, unless otherwise
noted, all statutory references in this opinion are to the 2021 revision of
the statutes.
2
The record indicates that the named defendant also is referred to as
Bimbo Bakeries. ESIS, the workers’ compensation insurer for Bimbo Foods,
Inc., was also named as a defendant but is not a party to this appeal. We
therefore refer in this opinion to Bimbo Foods, Inc., as the defendant.
3
‘‘General Statutes § 31-301b provides that ‘[a]ny party aggrieved by the
decision of the Compensation Review Board upon any question or questions
of law arising in the proceedings may appeal the decision of the Compensa-
tion Review Board to the Appellate Court, whether or not the decision is
a final decision within the meaning of section 4-183 or a final judgment
within the meaning of section 52-263.’ Our appellate courts expressly have
recognized that the final judgment requirement does not apply to appeals
taken from the board. See Dechio v. Raymark Industries, Inc., 299 Conn.
376, 399–400, 10 A.3d 20 (2010); Hadden v. Capitol Region Education Coun-
cil, 164 Conn. App. 41, 46 n.7, 137 A.3d 775 (2016).’’ Reid v. Speer, 209 Conn.
App. 540, 542 n.1, 267 A.3d 986 (2021), cert. denied, 342 Conn. 908, 271 A.3d
136 (2022).
4
‘‘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.) Salerno v. Lowe’s Home Improvement Center, 198 Conn.
App. 879, 881 n.3, 235 A.3d 537 (2020).
5
Appended to the form 30C was a document in which the plaintiff alleged
in relevant part that his ‘‘[twenty-five] year work history as a wholesale
delivery person required him to bend, squat, kneel, lift, carry, push and pull
heavy loads, all of which resulted in [his] need for bilateral total knee
replacements.’’
6
The commission received the form 30C on December 14, 2017.
7
On February 10, 2017, the plaintiff filed a form 30C with the commission,
claiming a compensable left knee injury sustained on January 21, 2017,
during the course of his employment with the defendant. The defendant
filed a timely form 43 denying that claim.
8
‘‘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.’’ (Emphasis omitted; internal quotation marks omitted.)
Salerno v. Lowe’s Home Improvement Center, 198 Conn. App. 879, 881 n.4,
235 A.3d 537 (2020).
9
‘‘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.) Reid v. Speer, 209 Conn. App. 540, 543
n.4, 267 A.3d 986 (2021), cert. denied, 342 Conn. 908, 271 A.3d 136 (2022).
‘‘We have described a motion to preclude in this context as a statutorily
created waiver mechanism that, following an employer’s failure to comply
with the requirement of . . . § 31-294c (b), bars that employer from con-
testing the compensability of its employee’s claimed injury or the extent of
the employee’s resulting disability.’’ (Internal quotation marks omitted.) Id.,
543 n.5.
10
The mailbox rule ‘‘provides that a properly stamped and addressed letter
that is placed into a mailbox or handed over to the United States Postal
Service raises a rebuttable presumption that it will be received.’’ Echavarria
v. National Grange Mutual Ins. Co., 275 Conn. 408, 418, 880 A.2d 882 (2005).
11
Pursuant to § 31-294c (a), the language of which was in effect when the
plaintiff mailed the form 30C to the defendant on December 12, 2017, a
written notice of claim mailed by an employee not employed by the state
or a municipality to an employer must be sent by certified mail. See General
Statutes § 31-294c (a) (‘‘[i]f an employee, other than an employee of the
state or a municipality, opts to mail to his or her employer the written notice
of a claim for compensation required under the provisions of this section,
such written notice shall be sent by the employee to the employer by certified
mail’’ (emphasis added)). Following the passage of No. 22-89, § 2, of the
2022 Public Acts (P.A. 22-89), which amended § 31-294c (a) effective May
24, 2022, a written notice of claim mailed by an employee not employed by
the state or a municipality to an employer must be sent in accordance with
§ 31-321. See General Statutes § 31-294c (a), as amended by P.A. 22-89 (‘‘[i]f
an employee, other than an employee of the state or a municipality, opts
to mail to his or her employer the written notice of a claim for compensation
required under the provisions of this section, such written notice shall be
sent by the employee to the employer in accordance with section 31-321’’
(emphasis added)). Section 31-321 permits certified mail as one method of
service by mail.
12
During the formal hearing held on October 28, 2019, the defendant called
Stephen Costa, one of its employees, as a witness. During his testimony,
Costa described the layout of the defendant’s property, where he previously
had worked, as well as the building’s operational hours and the procedures
followed by staff to permit entry into the building. Costa further testified
that it was ‘‘[h]ighly unlikely’’ that, on three separate occasions, a mail
carrier attempted to deliver the form 30C to the defendant’s property but
was refused entry into the building. The plaintiff contends that Costa’s
testimony did not constitute competent evidence in support of the commis-
sioner’s findings. In short, we disagree with this contention. Even without
Costa’s testimony, however, we conclude that there is sufficient evidence
in the record, including the envelope containing the form 30C that was
returned to the plaintiff, supporting the commissioner’s findings.
13
In its appellate brief, the defendant argues that, under the circumstances
of this case, the plaintiff was required to serve the form 30C on the defen-
dant’s counsel in order to effectuate proper service. In light of the analysis
underlying our resolution of this appeal, we need not address this argu-
ment further.