Mitigating Some of the Pitfalls Leading to Preclusion
Preclusion. In Connecticut Workers’ Compensation, it’s a word that employers, claims handlers, and respondent’s counsel alike hope never to have associated with one of their files. Which begs the questions, what exactly is preclusion? How can it come into a case? And how can it be avoided?
After a claimant serves the respondent and the Workers’ Compensation Commission with a notice of a claim for benefits (Form 30C), the respondent has 28 days to: 1) accept the claim; 2) properly contest the claim (Form 43); or 3) pay benefits in full on a without-prejudice basis. If the respondent fails to take one of these three steps, the claimant is able to make a motion for preclusion.
If a respondent is found to be precluded, the claimant must still prove his case with “competent evidence” in a formal hearing. Harpez v. Laidlaw Transit, Inc., 286 Conn. 102, 132 (2008) and C.G.S. § 31-294c. However, at that formal hearing, the respondent plays no adversarial role, being barred from offering any evidence or questioning any witnesses. See Donahue v. Veridiem, Inc., 291 Conn. 537, 549-50 (2009) and White v. Wal-Mart Stores, No. 5363 CRB-2-08-7 (June 30, 2009). The effects of a finding of preclusion persist until either the case is settled on a full and final basis or the injured worker dies of unrelated causes. It is, as the State recognizes, a harsh remedy for a respondent’s failure to timely accept, deny or investigate a claim.
It is not the goal of any employer to have a finding of preclusion made against them; it is usually the result of an employee providing Form 30C to a manager who is not aware of the time requirements associated with it. Once the form is filed away, forgotten, or misplaced by a management level employee or supervisor, and 28 days passes, a claim for preclusion is ripe to be made.
However, effective October 1, 2017, an amendment was made to C.G.S. §31-294c that helps mitigate the risk of preclusion. This amendment allows an employer to designate where an injured worker must send his claim for workers’ compensation. Any employer — other than the State or a municipality — may opt to post the location to which an employee must send a claim for workers’ compensation benefits. This amendment mitigates the risk of preclusion in a case because an injured workers’ Form 30C was never brought to the attention of the appropriate individuals prior to the expiration of the 28-day time period.
The statute amendment also requires that when an employer opts into this new provision, it must post the address information in the workplace and send it to the Workers’ Compensation Commission. The Commission shall then post the location submitted by the employer to its internet website, where it will also be available to employees. If an employer opts into this new provision, it is their sole responsibility to ensure that the information posted in the workplace, and that submitted to the Commission for posting on its website, is accurate, and each provides consistent information. While employers may find inconvenient the extra steps initially required to opt into the new provision allowing them to direct where employees are to file their notice of claim, strong encouragement is given to consider this option. The effort spent preventing preclusion is effort well focused considering that once established, preclusion lasts for the life of the claim.