author: LAVERY, J.

text:
    COMMISSIONER OF PUBLIC SAFETY v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 32246)
    Bear, Bishop and Lavery, Js.

      Argued November 14, 2011 —
    officially released August 7, 2012

      Victor R. Perpetua, appellate attorney, with whom, on the brief, was Lisa Fein Siegel, commission counsel, for the appellant (named defendant).

      Stephen R. Samoski, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Terrence O’Neill, assistant attorney general, for the appellee (plaintiff).
   Opinion

LAVERY, J.

The defendant freedom of information commission (commission) appeals from the judgment of the trial court sustaining the appeal of the plaintiff, the commissioner of public safety, from the decision of the commission. The court concluded that the commission erroneously had required the department of public safety (department) to release documents to the complainants, Michelle Tuccitto Sullo, a reporter for the New Haven Register, and the New Haven Register (complainants). On appeal, the commission claims that the court erred by (1) concluding that the text of General Statutes § 1-215 does not plainly and unambiguously require disclosure of certain information at the time of the arrest; and (2) failing to defer to the commission’s construction of General Statutes §§ 1-215 and 1-210 (b) (3), and thereby failing to follow the applicable scope of judicial review in an administrative appeal. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our review of the commission’s appeal. On March 18, 2008, the complainants requested, pursuant to the Freedom of Information Act (act); General Statutes § 1-200 et seq.; that the department provide them with access to the police report of an incident that occurred on March 15, 2008, in Derby. The request concerned the arrest of an individual who allegedly was charged with assault in the first degree of an elderly person and attempt to commit murder. On April 29, 2008, the department responded by letter indicating that the entire report was exempt from disclosure pursuant to § 1-215; however, the department provided the complainants with a copy of the official department of public safety press release pertaining to the incident that was the subject of their inquiry. The press release contained the following information: the accused’s name was Toai T. Nguyen, he lived at 59 Grove Street, Shelton, and was bom on March 4, 1973; the date, time and location of the incident was March 15, 2008, at 1:01 p.m. on Route 8, northbound, exit seventeen off ramp in Derby; and the charges upon which the accused had been arrested were: assault in the first degree of an elderly person in violation of General Statutes § 53a-59a, attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a, and failure to respond/ plea in violation of General Statutes § 51-164r (a). The press release also contained a two paragraph narrative that included additional information about the arrest.

On May 2, 2008, the complainants appealed from the ' decision of the department to the commission pursuant to General Statutes § 1-206 (b) (1). On March 6, 2009, following a hearing, a decision by a hearing officer, and a proceeding before the full commission, the commission issued a final decision. In that decision, the commission concluded, among other things, that § 1-215 “does not exempt records from public disclosure under the [act], but rather mandates that, at a minimum, certain arrest records must be disclosed. In instances where a public agency seeks to withhold other records not mandated to be disclosed pursuant to § 1-215 . . . such public agency must prove that an exemption applies to such other records.” The commission also found “that the [department] did make available to the [complainants] a press release concerning the arrest of [Nguyen], which included the name and address of [Nguyen], the date, time and place of his arrest and the offense for which he was arrested.” The commission then concluded “that the [department] provided the ‘record of arrest’ within the meaning of § 1-215 . . . .”

The commission issued the following orders: “Forthwith the [department] shall provide to the [complainants] copies of the in camera records other than the portions described in paragraphs 16, 25, 38 and 39 of the findings, above. . . . Consistent with [the commission’s] precedent, the [department] may redact social security numbers from the records ordered released.”

On March 12, 2009, the department filed an appeal with the trial court. On March 12, 2010, the commission informed the court that the criminal defendant had entered a guilty plea and the criminal matter therefore had concluded. The department then made all relevant documents available to the complainants. The court issued its memorandum of decision on April 21, 2010. The court agreed with both parties that the issue of the availability of the exception to the act provided by § 1-215 was moot, but because it was capable of repetition, yet evading review, the case could still go forward. The court also concluded that there was more than one reasonable interpretation of § 1-215, and therefore it consulted legislative history. The court stated that its conclusion from reviewing the legislative history “agrees with the [department’s] position — that while Gifford [v. Freedom of Information Commission, 227 Conn. 641, 631 A.2d 252 (1993)] had restricted disclosure to mere nominal information, the legislative revision had compromised on increasing the mandatory disclosure by police departments of arrest information by requiring the police department to disclose at least one of the four items Usted in § 1-215 (b) (2). Thus, [the department] here satisfied the act by choosing to provide the complainants with the news release, and was not obhgated to make either a fuU or redacted pohce report available.” (Emphasis in original.) This appeal foUowed.

“We begin by setting forth our weU estabhshed standard of review of agency decisions. Ordinarily, this court affords deference to the construction of a statute appüed by the administrative agency empowered by law to carry out the statute’s purposes. . . . [A]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in fight of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when a state agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference. . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law.” (Internal quotation marks omitted.) Planning & Zoning Commission v. Freedom of Information Commission, 130 Conn. App. 448, 455, 23 A.3d 786 (2011).

I

First, the commission claims that the court erred in concluding that the text of § 1-215 does not plainly and unambiguously require disclosure of the “record of arrest,” as that phrase is defined by statute, while leaving ah other arrest documents governed by § 1-210 (b) (3). The commission asserts that as a basis, all police records must be made public under the act, subject to certain exemptions. Therefore, it argues, § 1-215 affirmatively requires disclosure of the record of arrest. The commission contends that § 1-215 leaves all other records subject to the provisions of § 1-210 (b) (3) by its express terms.

The department responds by arguing that the plain language of § 1-215 supports its decision to publicly disclose only a news release containing the police blotter information and certain additional information in response to the complainants’ request. The department essentially argues that the reference in § 1-215 (a) to § 1-210 (b) (3) is simply to clarify that the exemption applies. In other words, it is there to clarify that § 1-215 does not supersede the exemptions contained in § 1-210 (b) (3). Therefore, the department contends, § 1-215 is satisfied by making available to the public a single news release containing the police blotter information, as defined by the statute, and “some additional information beyond the ‘record of the arrest,’ consistent with that normally found in arrest reports, incident reports, news releases or other similar reports . . . .”

Resolution of this issue requires statutory interpretation. The following well settled “principles of statutory interpretation govern our review. . . . Because statutory inteipretation is a question of law, our review is de novo. . . . When construing a statute, [o]ur fundamental objective 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, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to 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. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation. . . . 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 . . . (Internal quotation marks omitted.) Dept. of Public Safety v. Freedom of Information Commission, 298 Conn. 703, 720-21, 6 A.3d 763 (2010).

“[P]ursuant to § l-2z, [the court is] to go through the following initial steps: first, consider the language of the statute at issue, including its relationship to other statutes, as applied to the facts of the case; second, if after the completion of step one, [the court] conclude [s] that, as so applied, there is but one likely or plausible meaning of the statutory language, [the court] stop[s] there; but third, if after the completion of step one, [the court] conclude [s] that, as applied to the facts of the case, there is more than one likely or plausible meaning of the statute, [the court] may consult other sources, beyond the statutory language, to ascertain the meaning of the statute.

“It is useful to remind ourselves of what, in this context, we mean when we say that a statutory text has a plain meaning, or, what is the same, a plain and unambiguous meaning. [Our Supreme Court] has already defined that phrase. By that phrase we mean the meaning that is so strongly indicated or suggested by the language as applied to the facts of the case, without consideration, however, of its purpose or the other, extratextual sources of meaning . . . that, when the language is read as so applied, it appears to be the meaning and appears to preclude any other likely meaning. . . . Put another way, if the text of the statute at issue, considering its relationship to other statutes, would permit more than one likely or plausible meaning, its meaning cannot be said to be plain and unambiguous.” (Emphasis in original; internal quotation marks omitted.) State v. Kalman, 93 Conn. App. 129, 133-34, 887 A.2d 950, cert. denied, 277 Conn. 915, 895 A.2d 791 (2006).

“[W]e recognize, as a general matter, that there is an overarching policy underlying the [act] favoring the disclosure of public records. . . . Our construction of the [act] must be guided by the policy favoring disclosure and exceptions to disclosure must be narrowly construed. . . . This rule of construction, however, is not determinative. Indeed, although the act was intended as a general matter to promote openness in government . . . the act itself recognizes competing interests, and the need for some governmental records to remain confidential, at least initially. . . .

“[Although the act’s general policy favoring public access to public records has strong constitutional underpinnings, the fact that the act implicates first amendment concerns of access to information does not control the interpretation of the act itself. . . . Thus, the question of whether the legislature intended to compel disclosure of arrest reports during the pendency of a criminal prosecution presents an issue of statutory interpretation and, therefore, is a question of law. . . .

“Moreover, [i]t is a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling. ... [If] there are two provisions in a statute, one of which is general and designed to apply to cases generally, and the other is particular and relates to only one case or subject within the scope of a general provision, then the particular provision must prevail; and if both cannot apply, the particular provision will be treated as an exception to the general provision.” (Citations omitted; internal quotation marks omitted.) Gifford v. Freedom of Information Commission, supra, 227 Conn. 651-63.

Pursuant to § l-2z, we begin with the text of the statute and its relationship to other statutes. Section 1-215 (a) provides in relevant part: “Notwithstanding any provision of the general statutes to the contrary, and except as otherwise provided in this section, any record of the arrest of any person . . . shall be a public record from the time of such arrest and shall be disclosed in accordance with the provisions of section 1-212 and subsection (a) of section 1-210, except that disclosure of data or information other than that set forth in subdivision (1) of subsection (b) of this section shall be subject to the provisions of subdivision (3) of subsection (b) of section 1-210. . . .” Subsection (b) provides: “For the purposes of this section, ‘record of the arrest’ means (1) the name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested, and (2) at least one of the following, designated by the law enforcement agency: The arrest report, incident report, news release or other similar report of the arrest of a person.” General Statutes § 1-215 (b).

Our interpretation of the statute also is informed by our Supreme Court’s decision in Gifford v. Freedom of Information Commission, supra, 227 Conn. 653-66. In Gifford, the court interpreted General Statutes § l-20b, now § 1-215, to not require the disclosure of police reports prepared in connection with an arrest to be disclosed to the public while the related criminal prosecution is pending. Id., 651. In 1994, after the Gifford decision, the legislature, by virtue of Public Acts 1994, No. 94-246, § 13 (P.A. 94-246), amended § l-20b, now § 1-215, effectively overruling parts of the court’s holding. Ordinarily, “[w]hen the legislature amends the language of a statute, it is presumed that it intended to change the meaning of the statute and to accomplish some purpose.” (Internal quotation marks omitted.) Chatterjee v. Commissioner of Revenue Services, 277 Conn. 681, 693, 894 A.2d 919 (2006). However, in this instance, the legislature left much of the statute intact, did not delete any of its text and only added text to the statute. “[W]hen changes have been introduced by amendment to a statute, the presumed change does not go any further than that which is expressly declared or necessarily implied. . . . We cannot impute to the legislature ... in the absence of an intent clearly expressed in the act, [an intent] to enact [a statute] which involves a departure from existing statutory law.” (Internal quotation marks omitted.) Gaida v. Planning & Zoning Commission, 108 Conn. App. 19, 25, 947 A.2d 361, cert., denied, 289 Conn. 922, 923, 958 A.2d 150, 151 (2008). We also note that the Gifford court engaged in statutory interpretation to reach its conclusion. Connecticut courts have afforded a “special force” of stare decisis to precedents involving statutory interpretation. “The United States Supreme Court has determined that the standard for stare decisis for precedents involving statutory construction is more stringent because the power of the legislative branch is implicated. See California v. Federal Energy Regulatory Commission, 495 U.S. 490, 499, 110 S. Ct. 2024, 109 L. Ed. 2d 474 (1990) (‘[considerations of stare decisis have special force in the area of statutory [interpretation], for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done’) . . . .” (Citations omitted.) Conway v. Wilton, 238 Conn. 653, 685 n.3, 680 A.2d 242 (1996).

In Gifford, the court made several conclusions of law relevant to our discussion here. First, the court concluded that the first sentence of § l-20b, which is the same first sentence of § 1-215, by its plain language, establishes abroad disclosure requirement and includes an arrest report. Id., 655. Second, the court concluded that the second sentence of the statute limits the language of the first sentence “by limiting the ‘record of the arrest of any person’ — which [the court interpreted] to include an arrest report — to the ‘name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested.’ ” Id., 658. Third, and most important to our discussion, the court determined that, in light of its linguistic analysis of both sentences, § l-20b, now § 1-215, “exclusively regulates the disclosure of arrest reports, and obligates a police department to disclose such a report only to the extent provided by the second sentence of that provision.” Id., 658-59. The Gifford court therefore interpreted the statute to mean that law enforcement agencies are only required to disclose dining a pending criminal prosecution the specific information listed in the second sentence of that provision, which, at the time, was just the police blotter information. We conclude that much of the Gifford decision— including its conclusion that § l-20b,now§ 1-215, exclusively regulates the disclosure of records of law enforcement agencies — is still binding on us.

The 1994 amendment made two substantive changes to the statute. The commission argues that the first change is the most significant. The first substantive change is the addition of the following provision to the statute: “except that disclosure of data or information other than that set forth in subdivision (1) of subsection (b) of this section shall be subject to the provisions of subdivision (3) of subsection (b) of section 1-19.” The commission argues that the addition of this provision is significant because it plainly states that the police blotter information is governed by § 1-215 and all other arrest records are governed by § 1-210 (b) (3). We do not agree. It is clear from our reading of this statute that the record of arrest is subject to the disclosure exemption provided in § 1-210 (b) (3) with the exception of the information set forth in § 1-215 (b) (1). The information set forth in § 1-215 (b) (1) is: “[T]he name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested . . . .’’In other words, the police blotter information must be made publicly available at the time of the arrest and may not be redacted under § 1-210 (b) (3). However, the additional information, required by § 1-215 (b) (2), may be exempted or redacted in accordance with § 1-210 (b) (3).

The second alteration to the statute was the addition of § 1-215 (b) (2). Section 1-215 (b) (2) adds the requirement that in addition to providing the name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested, the law enforcement agency must also make either the arrest report, incident report, news release or other similar report of the arrest of a person available to the public. Importantly, P.A. 94-246 did not delete any of the text of § 1-215 (b); it only added text, including this subdivision. Therefore, we can determine that the legislature only wanted to alter the Gifford court’s ruling insofar as to how much information the law enforcement agency must disclose. In other words, we conclude that the 1994 amendment to § 1-215 only added the requirement to disclose a single additional document, to be designated by the law enforcement agency. Although the 1994 amendment clearly overrules the Gifford court’s holding that all § l-20b required was the disclosure of the police blotter information, we conclude that the Gifford court’s reasoning that § l-20b, now § 1-215, exclusively regulates the disclosure of records of law enforcement agencies was not made void by the legislative amendment. We so conclude because we do not find in the amended statute an expressly declared intent by the legislature to do so. See Gaida v. Planning & Zoning Commission, supra, 108 Conn. App. 25. Accordingly, we do not accept the commission’s argument.

In this case, during the pendency of the criminal prosecution, the department made available to the complainants a single document that it labeled as a press release. As noted previously, the press release included the following information: the accused’s name was Toai T. Nguyen, he lived at 59 Grove Street, Shelton, and was bom on March 4, 1973; the date, time and location of the incident was March 15, 2008, at 1:01 p.m. on Route 8, northbound, exit seventeen off ramp in Derby; and the charges upon which the accused had been arrested were: assault in the first degree of an elderly person in violation of § 53a-59a, attempt to commit murder in violation of §§ 53a-49 and 53a-54a, and failure to respond/plea in violation of § 51-164r (a). Therefore, the press release satisfied the requirements of § 1-215 (b) (1). The press release also contained a two paragraph narrative that included additional information about the arrest. We conclude that the additional information contained in the two paragraphs satisfied the requirements of § 1-215 (b) (2); specifically, the additional information contained in the two paragraphs constituted a news release. In other words, the department disclosed all the information that it was obligated to disclose under the act.

After carefully considering the language of § 1-215 and its relationship to other statutes, we conclude that, as applied to the facts of this case, there is only one plausible meaning of the statutory language. Therefore, we conclude that the statute’s language is plain and unambiguous. Accordingly, we do not need to proceed to the next step. Because we have concluded that the plain language of the statute requires only the disclosure of the police blotter information of § 1-215 (b) (1) and an additional piece of information contained in § 1-215 (b) (2), we also must conclude that the court did not err in its conclusion that the news release disclosed by the department met the requirements of the statute.

n

The commission next claims that the court erred by failing to defer to its construction of §§ 1-215 and 1-210 (b) (3), and that therefore, the court failed to follow the applicable scope of judicial review in an administrative appeal. The commission relies on our Supreme Court’s decision in Longley v. State Employees Retirement Commission, 284 Conn. 149, 163-64, 931 A.2d 890 (2007). We are not persuaded. “[A]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. . . . Cases that present pure questions of law, however, invoke a broader standard 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 discretion. . . . We have determined, therefore, that the traditional deference accorded to an agency’s interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] ... a governmental agency’s time-tested interpretation .... Consequently, an agency’s interpretation of a statute is accorded deference when the agency’s interpretation has been formally articulated and applied for an extended period of time, and that interpretation is reasonable.” (Citations omitted; internal quotation marks omitted.) Id.

Because we have concluded that we are still bound by several conclusions of law made by our Supreme Court in its decision in Gifford, we need not reach the merits of this issue. “[I]t is manifest to our hierarchical judicial system that [the Supreme Court] has the final say on matters of Connecticut law and that the Appellate Court and Superior Court are bound by [its] precedent. See, e.g., Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 195, 676 A.2d 831 (1996) (‘[i]tis axiomatic that a trial court is bound by Supreme Court precedent’); Martin v. Plainville, 40 Conn. App. 179, 182, 669 A.2d 1241 (1996) (Appellate Court, as intermediate court, is prevented from ‘reexamining or reevaluating Supreme Court precedent’), aff'd, 240 Conn. 105, 689 A.2d 1125 (1997); Lash v. Aetna Casualty & Surety Co., 36 Conn. App. 623, 624, 652 A.2d 526 (1995) (Appellate Court is ‘bound by Supreme Court precedent’), aff'd, 236 Conn. 318, 673 A.2d 84 (1996).” Stuart v. Stuart, 297 Conn. 26, 45-46, 996 A.2d 259 (2010). Accordingly, it is inconsequential to our analysis whether the commission’s interpretation of the statute has been time tested.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the New Haven Register and Michelle Tuccitto Sullo, a reporter, were defendants at trial, they have not appealed.

       General Statutes § 1-210 (b) provides in relevant part: “Nothing in the Freedom of Information Act shall be construed to require disclosure of . . . (3) Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of (A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known, (B) signed statements of witnesses, (C) information to be used in a prospective law enforcement action if prejudicial to such action, (D) investigatory techniques not otherwise known to the general public, (E) arrest records of a juvenile, which shall also include any investigatory files, concerning the arrest of such juvenile, compiled for law enforcement purposes, (F) the name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof, or (G) uncorroborated allegations subject to destruction pursuant to section 1-216 . . .

       See footnote 7 of this opinion.

       General Statutes § 1-212 provides for the copying and scanning of public records and the accompanying fees.

       General Statutes § 1-210 (a) provides: “Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located or of the Secretary of the State, as the case may be. Any certified record hereunder attested as a true copy by the clerk, chief or deputy of such agency or by such other person designated or empowered by law to so act, shall be competent evidence in any court of this state of the facts contained therein.”

       See footnote 2 of this opinion.

       The information listed in § 1-215 (b) (1) — “the name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested” — is sometimes referred to as “police blotter” information. See Gifford v. Freedom of Information Commission, supra, 227 Conn. 660-61.

       General Statutes (Rev. to 1993) § l-20b provides: “Notwithstanding any provision of the general statutes to the contrary, any record of the arrest of any person, other than a juvenile, except a record erased pursuant to chapter 961a, shall be a public record from the time of such arrest and shall be disclosed in accordance with the provisions of section 1-15 and subsection (a) of section 1-19. For purposes of this section, ‘record of arrest’ means the name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested.” Section 1-20b was amended and, in 1999, was transferred to § 1-215.

       Although Gifford v. Freedom of Information Commission, supra, 227 Conn. 659-61, was based in part on the legislative history behind § l-20b, it was decided before the enactment of § l-2z. We note that our Supreme Court consistently has held that § l-2z was not meant to overrule every other case in which our courts, prior to the passage of § l-2z, had interpreted a statute in a manner inconsistent with the plain meaning rule, as that rule is articulated in § l-2z. See Tomlinson v. Tomlinson, 305 Conn. 539, 548 n.5, 46 A.3d 112 (2012); Hummel v. Marten Transport, Ltd., 282 Conn. 477, 501, 923 A.2d 657 (2007), superseded by statute on other grounds by Public Acts 2009, No. 09-178, § 1; see also Veilleux v. Complete Interior Systems, Inc., 296 Conn. 463, 473 n.7, 994 A.2d 1279 (2010); Lopa v. Brinker International, Inc., 296 Conn. 426, 430-31, 994 A.2d 1265 (2010).

       Public Act 94-246 changed § l-20b, now § 1-215, in the following ways. It divided § l-20b into subsections; amended subsection (a) to add an exception that disclosure of data or information other than that set forth in subsection (b) (1) is subject to General Statutes § 1-19 (b) (3), now § 1-210 (b) (3); and added subsection (b) (2) to require the law enforcement agency to make public at least one of the following: an arrest report, incident report, news release, or other similar report of the arrest of a person.
      Public Acts 94-246, § 13, amended General Statutes § l-20b as follows: “Section l-20b of the general statutes is repealed and the following is substituted in lieu thereof:

        “(a) Notwithstanding any provision of the general statutes to the contrary, any record of the arrest of any person, other than a juvenile, except a record erased pursuant to chapter 961a, shall be a public record from the time of such arrest and shall be disclosed in accordance with the provisions of section 1-15 and subsection (a) of section 1-19, EXCEPT THAT DISCLOSURE OF DATA OR INFORMATION OTHER THAN THAT SET FORTH IN SUBDIVISION (1) OF SUBSECTION (B) OF THIS SECTION SHALL BE SUBJECT TO THE PROVISIONS OF SUBDIVISION (3) OF SUBSECTION (B) OF SECTION 1-19, AS AMENDED BY SECTION 14 OF THIS ACT.

        “(b) For the purposes of this section, ‘record of the arrest’ means (1) the name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested, AND (2) AT LEAST ONE OF THE FOLLOWING, DESIGNATED BY THE LAW ENFORCEMENT AGENCY: THE ARREST REPORT, INCIDENT REPORT, NEWS RELEASE OR OTHER SIMILAR REPORT OFTHE ARREST OF APERSON.” (Emphasis in original.)

       We note here that after the criminal prosecution had concluded, the department provided the complainants with all of the information they had requested.

       The two paragraphs provide: “The accused was traveling with the victim northbound on Rt. 8 in the area of exit 17 in the town of Derby when he began to assault him with a metal object. The accused expressed his desire and intention of killing the victim and subsequently caused a serious, life-threatening injury to him. The victim was transported to an area hospital where he was treated for these injuries.
      “The accused was taken into custody at the scene and transported to Troop I in Bethany for processing. He is being charged with [assault in the first degree of an elderly person, attempt to commit murder, and failure to respond/plea]. He was held on a $100,000 bond relating to the assault incident and a court set $103 bond relating to the active warrant on file through the Shelton [pjolice [department.”

       We agree with the commission that the court erred in concluding that the statute was ambiguous. “Nonetheless, we may uphold the court’s judgment because it reached the right result, even if it did so for the wrong reason.” (Tntemal quotation marks omitted.) Weigold v. Patel, 81 Conn. App. 347, 353 n.6, 840 A.2d 19, cert. denied, 268 Conn. 918, 847 A.2d 314 (2004); see also Kalas v. Cook, 70 Conn. App. 477, 485, 800 A.2d 553 (2002).


source: Caselaw Access Project

author: SHELDON, J.

license: Public Domain

text:
    ROBIN K. CALLENDER v. REFLEXITE CORPORATION ET AL.
    (AC 32832)
    DiPentima, C. J., and Sheldon and Flynn, Js.

      Argued February 6 —
    officially released August 7, 2012

      Jennifer B. Levine, with whom was Harvey L. Levine, for the appellant (plaintiff).

      Deborah J. Delbarba, with whom was Michael A. Burton, for the appellees (defendants).
   Opinion

SHELDON, J.

This case involves a dispute between an employer, the defendant Reflexite Corporation, and its employee, the plaintiff, Robin K. Callender, as to whether General Statutes § 31-294c invariably requires an employer, to preserve its right to contest an employee’s claim for workers’ compensation benefits on the merits, either to file a form 43, notice to contest the claim (notice to contest), or to commence payment on the claim within twenty-eight days of the filing of the notice of claim. Here, the plaintiff claims that the workers’ compensation review board (board) erred in upholding the decision of a trial commissioner (commissioner) to deny her motion to preclude the defendant from contesting her claim for benefits dated May 11-12, 2006 (May, 2006 claim) despite the defendant’s failure either to file a notice to contest that claim or to commence payment thereon within twenty-eight days of the notice of claim, in alleged violation of § 31-294c. The defendant argues that the board’s decision should be upheld because, on the facts of this case, the plaintiffs May, 2006 claim was not a new claim but merely the unnecessary reassertion of an earlier claim for the same injuries as to which it already had filed a timely notice to contest and on which it already had begun to make payments. The parties’ dispute arises against the background of the following historical and procedural facts.

The defendant employed the plaintiff for nearly twenty years. During that time, she allegedly sustained a number of work-related injuries, for which she has made multiple claims for workers’ compensation benefits, two of which are at issue in the present appeal. On October 12, 2005, the plaintiff filed a notice of claim with respect to injuries she claimed to have suffered due to repetitive workplace trauma between 1987 and 2004. In that notice of claim (October, 2004 claim), she alleged that, as a result of such repetitive workplace trauma, she had developed a painful condition that affected her “neck, [right] shoulder, [right] arm, [right] hand, [left] shoulder, [left] hand [and] lower back.” The plaintiff listed the date of her injury as October 18,2004. The defendant responded to this claim by filing a timely form 43 and by making timely payments on that claim in accordance with § 31-294c.

Thereafter, the plaintiff continued to work for the defendant. On April 29, 2006, complaining of neck pain and back spasms, the plaintiff was treated in the emergency department of New Britain General Hospital. Although the plaintiff returned to work for the defendant on May 11, 2006, her last day of work was the overnight shift, which began on that day.

On May 7, 2007, the plaintiff filed a new notice of claim, in which she alleged that she had sustained repetitive trauma injuries to her “[r]ight and left upper limbs, neck, upper and lower back, both shoulders and both hands and elbows,” in the period from 1987 until her last day of work. In addition, in a “Schedule A” attached to her new notice of claim, she alleged that the repetitive trauma of which she complained had caused injury to her brain, which manifested itself in the forms of chronic pain and depression. The defendant never filed a notice to contest liability with respect to the plaintiffs May, 2006 claim, nor did it commence making payments to the plaintiff on that claim. It did, however, continue to make payments to the plaintiff on her October, 2004 claim.

As to its alleged failure to commence payment on the May, 2006 claim, the defendant contends that that claim did not allege a new and separate injury from that alleged in her October, 2004 claim, and thus that its continuation of payments to the plaintiff on her October, 2004 claim was sufficient to respond and to preserve its right to contest on the merits her May, 2006 claim as well. It asserts, moreover, that any additional payment to the plaintiff on her May, 2006 claim would afford the plaintiff a double recovery for the same injury in violation of Connecticut’s well settled public policy disfavoring double recovery of workers’ compensation benefits.

On June 2,2009, the plaintiff filed an amended motion to preclude the defendant from contesting either the compensability of the injuries described in her May, 2006 claim or the extent of her disability arising from such injuries. The motion alleged that the defendant had not complied with § 31-294c (b) with respect to her May, 2006 claim because it had failed either to issue a timely notice to contest that claim or, in the alternative, to commence making payments on that claim within twenty-eight days of the filing of the plaintiffs notice of claim.

On June 18, 2009, the parties attended a hearing before the commissioner on the plaintiffs motion to preclude. At the hearing, the defendant filed a joint motion to bifurcate on behalf of all defendants, seeking to have the motion to preclude heard and decided before any compensability issues were addressed. After granting the motion to bifurcate, the commissioner heard argument and dismissed the plaintiffs motion to preclude.

In dismissing the motion to preclude, the commissioner made the following findings of fact. The plaintiff had sustained compensable injuries as a result of repetitive trauma she experienced while working for the defendant and the defendant had paid her benefits for such injuries under her “accepted claims” of October, 2004, and May, 2006. Overtime, issues arose with respect to the plaintiffs capacity to return to work, medical treatment and additional injuries, which resulted in litigation and various hearings before the commission. The plaintiff filed her May, 2006 claim based on a new injury that arose out of the same repetitive trauma that had caused the injuries cited in her October, 2004 claim. On that basis, the commissioner dismissed the motion to preclude, stating that “[t]he result the [plaintiff] is seeking is contrary to the letter and spirit of [General Statutes §] 31-294[c], Menzies [v. Fisher, 165 Conn. 338, 334 A.2d 452 (1973)], Harpaz [v. Laidlaw Transit, Inc., 286 Conn. 102, 942 A.2d 396 (2008)], and Donahue [v. Veridiem, Inc., 291 Conn. 537, 970 A.2d 630 (2009)] line of cases. Motions to preclude axe to be granted whenever a [defendant] is less than vigilant and diligent in responding to a newly filed claim. That did not happen here.” The plaintiff later filed a motion to correct some of the commissioner’s factual findings, but the motion was denied in its entirety. The plaintiff then filed a motion for articulation, which also was denied. Thereafter, the plaintiff appealed to the board.

The board, in affirming the commissioner’s decision, determined that the injuries alleged in the plaintiff’s May, 2006 claim were causally related to the injuries alleged in her October, 2004 claim and, thus, that they were “additional injuries arising from an original com-pensable incident . . . .” It therefore held that, because “a claimant is not required to file a separate notice of claim for additional injuries arising from an original compensable incident,” there was no justification for requiring the defendant to file a formal response to the May, 2006 claim or to commence payment thereon in order to preserve its right to contest the merits of that claim.

On appeal, the plaintiff claims that the board erred in affirming the commissioner’s ruling that an employer is not required to comply with the statutory mandates of § 31-294c (b) when its employee files a repetitive trauma claim with a date of injury that is later than that of an earlier repetitive trauma claim. We agree and accordingly reverse the decision of the board.

We first set forth our standard of review applicable to workers’ compensation appeals. “It is the power and the duty of the commissioner, as the trier of fact, to determine the facts.” Castro v. Viera, 207 Conn. 420, 436, 541 A.2d 1216 (1988). “[T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses . . . .” Keenan v. Union Camp Corp., 49 Conn. App. 280, 286, 714 A.2d 60 (1998). “[Wjhen a decision of a commissioner is appealed to the review division, the review division is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts.” (Internal quotation marks omitted.) Ricigliano v. J. J. Ryan Corp., 53 Conn. App. 158, 160, 728 A.2d 1161 (1999), appeal dismissed, 252 Conn. 404, 746, A.2d 787 (2000). Our scope of review of the actions of the board is similarly limited. See id., 161. “The decision of the review [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Emphasis added.) DeBarros v. Singleton, 21 Conn. App. 107, 110, 572 A.2d 69, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990).

Our Supreme Court has reviewed § 31-294c and determined that, by its adoption, our legislature intended to: “(1) include repetitive trauma injuries among those injuries compensable under the [workers’ compensation] act; (2) require claimants to file notices of claim, written in simple language, in order to maintain proceedings under the act; and (3) allow claimants who have filed such notices of claim to preclude their employers from contesting liability when their employers fail to contest liability properly within twenty-eight days of receiving the notice of claim.” Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 607, 748 A.2d 278 (2000).

When an employer fails to comply with the statutory mandate of § 31-294c and a motion to preclude is granted, the employer is precluded from contesting either the compensability of its employee’s claimed injury or the extent of the employee’s resulting disability. See Harpaz v. Laidlaw Transit, Inc., supra, 286 Conn. 130. Once a motion to preclude is granted, the only further role that an employer can play in the proceeding on the merits before the commissioner is to decide whether or not to stipulate to the compensation claimed. If the employer does not so stipulate, the claimant proceeds with his or her case, subject to examination by the commissioner without participation by the employer. Donahue v. Veridiem, Inc., supra, 291 Conn. 546-47. Preclusion, therefore, does not relieve a claimant of the obligation to prove his or her claim by competent evidence. Harpaz v. Laidlaw Transit, Inc., supra, 131-32. Instead, “§ 31-294c (b) provides that the employer is conclusively presumed to have accepted the compensability of the injury, not that the injury is conclusively presumed to be compensable.” Id., 131.

Notwithstanding this statute’s directive, our Supreme Court has declared that its conclusive presumption does not prevent an employer from contesting liability on the ground that the commissioner lacks subject matter jurisdiction over the claim. See Castro v. Viera, supra, 207 Conn. 430 (conclusive presumption of General Statutes [Rev. to 1983] § 31-297 [b], which is similar to that of § 31-294c [b], does not bar employer from contesting liability when “question of the lack of subject matter jurisdiction has been squarely presented to commissioner”). In other words, the employer can always contest the existence of “jurisdictional facts.” “A ‘jurisdictional fact’ is a fact that will permit a court to find jurisdiction.” Del Toro v. Stamford, 270 Conn. 532, 543 n.9, 853 A.2d 95 (2004). Specifically, jurisdictional facts are “[fjacts showing that the matter involved in a suit constitutes a subject-matter consigned by law to the jurisdiction of that court . . . .” (Internal quotation marks omitted.) Id. The existence of an employer-employee relationship; see Castro v. Viera, supra, 433; and the proper initiation of a claim in the first instance under § 31-294c; see Estate of Doe v. Dept. of Correction, 268 Conn. 753, 757, 848 A.2d 378 (2004); are jurisdictional facts. The issue of causation, by contrast — that is, whether or not an injury arose out of and in the course of the employee’s employment — has been held not to constitute a jurisdictional fact. See DeAlmeida v. M.C.M. Stamping Corp., 29 Conn. App. 441, 449, 615 A.2d 1066 (1992).

In the present case, the plaintiff timely filed a notice of her May, 2006 claim regarding what she claimed to have been a new injury. Her notice of claim substantially complied with the requirements of § 31-294c, insofar as it sufficiently apprised the defendant of the existence and nature of her claim to allow it to make a timely investigation of that claim. See Pereira v. State, 228 Conn. 535, 543 n.8, 637 A.2d 392 (1994); Chase v. State, 45 Conn. App. 499, 503-504, 696 A.2d 1299 (1997). Even so, the defendant failed either to commence payment on the plaintiffs May, 2006 claim or to file a notice to contest liability on that claim within twenty-eight days of the filing of the plaintiffs new notice of claim, as required to preserve its right to contest that claim on the merits under § 31-294c.

In dismissing the plaintiffs motion to preclude, the commissioner made a determination, which was later affirmed by the board, that the plaintiffs May, 2006 claim was not a “newly filed claim.” Despite the commissioner’s assertion that the issue of whether the new injuries alleged in the May, 2006 claim actually resulted from the injuries alleged in the October, 2004 claim would remain open and subject to further evidentiary hearings, his determination that the May, 2006 claim was not a “newly filed claim” was equivalent to a finding that the injuries alleged in the May, 2006 claim arose from the same incident as those alleged in the earlier October, 2004 claim and, thus, did not require the filing of a new form 30C.

The board, in extrapolating from the commissioner’s finding that the May, 2006 claim did not constitute a newly filed claim, determined that the plaintiffs form 30C regarding her May, 2006 claim failed to establish a new injury but, rather, pleaded an exacerbation of the original injury for which she had already sought benefits under her October, 2004 claim. On that basis, the board concluded that the plaintiff was not required to file a new form 30C. Because the new notice of claim was assertedly unnecessary, the board determined that a notice to contest that claim would likewise be unnecessary. On that basis, the board affirmed the commissioner’s decision.

In deciding a motion to preclude, the commissioner must engage 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.

In the present case, the new notice of claim appeared to allege a new and separate injury, with the reported date of injury different from that fisted on the earlier notice of claim and the reported injury different from any injury previously claimed. In response to the new notice of claim, the employer failed either to file a new notice to contest the claim or to commence making payments on the new claim within twenty-eight days of the filing of the notice of claim. The commissioner thus had no choice under the statute but to grant the motion to preclude.

In determining that the plaintiffs alleged injury was an exacerbation of her original injury, as described in her earlier notice of claim, rather than a new and separate injury, the board improperly made a finding as to the causation of the alleged injury and, thus, affirmed, on expanded grounds, the commissioner’s determination that the May, 2006 claim did not constitute a new claim for purposes of the statute. The board, therefore, improperly affirmed the commissioner’s decision on the basis of the merits of the claim. Because the defendant failed to file a form 43 or to commence payment within the time prescribed by law, it thereafter was precluded from contesting the claim except with regard to jurisdictional matters. Because the commissioner’s finding was incorrect as a matter of law, the board erred in affirming it.

Lastly, we turn to the defendant’s claim that its payment on the May, 2006 claim would constitute a double recovery and, thus, that its payment on the October, 2004 claim is sufficient to serve as payment on the May, 2006 claim. Any allegation of double recovery should have been properly raised in a notice to contest liability. The defendant cannot now rely on an allegation of double recovery as the ground for its failure to timely respond to the plaintiffs notice of claim.

The decision of the board is reversed and the case is remanded to the board with direction to grant the motion to preclude with regard to the May, 2006 claim.

In this opinion the other judges concurred.

       Zurich North America, OneBeacon Insurance, and Fireman’s Fund Insurance Company are also defendants but are not parties to this appeal. Travelers Property & Casualty, the workers’ compensation liability insurer for Reflexite Corporation at the time of the May, 2006 claim, is also a defendant and a party to this appeal. For convenience, we refer to Reflexite Corporation as the defendant.

       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 Compensation 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 62-263.” This court, therefore, has jurisdiction to review this case.

       By taking both of those steps simultaneously, the defendant indicated its intention to contest only part of the October, 2004 claim. As indicated in its form 43, notice to contest, the defendant accepted liability for the injury to the plaintiffs right arm/elbow and commenced payment thereon.

       The plaintiff also filed a motion to preclude regarding the October, 2004 claim, the dismissal of which the plaintiff is not challenging on appeal.

      In Menzies, our Supreme Court concluded that although the employer was obligated to state the specific grounds on which it was contesting liability for the employee’s alleged injury, rather than making a general disclaimer of liability, the court’s failure to grant the plaintiffs motion to preclude on that ground constituted harmless error because the court sustained the award for the employee. Menzies v. Fisher, supra, 165 Conn. 347-48.

       In Harpaz, our Supreme Court, after a thorough review of the legislative history of § 31-294c and its progeny, concluded that, “if an employer neither timely pays nor timely contests liability, the conclusive presumption of compensability attaches and the employer is barred from contesting the employee’s right to receive compensation on any ground or the extent of the employee’s disability.” Harpaz v. Laidlaw Transit, Inc., supra, 286 Conn. 130.

       In Donahue, our Supreme Court concluded that the conclusive presumption under § 31-294c does not operate to bar all inquiry by the commissioner as to the employee’s claim but only the employer’s ability to so inquire. Donahue v. Veridiem, Inc., supra, 291 Conn. 553.

       We note that although the commissioner seemed to make a determination that the plaintiff “felt” that the injuries alleged in the May, 2006 claim arose from the injuries alleged in the October, 2004 claim, he stated that that issue would be left open and the “subject of further evidentiary formal hearings” on the merits.

       The plaintiff also claims that the board abused its discretion in failing to order the commissioner to correct certain factual findings pursuant to the plaintiff’s motion to correct and in upholding the commissioner’s ruling that the defendant’s attendance at hearings regarding the October, 2004 claim and its continuation of payments on the October, 2004 claim satisfied its statutory obligations regarding the May, 2006 claim under § 31-294c (b). Because we conclude that the board erred in affirming the commissioner’s dismissal of the plaintiffs motion to preclude, we need not address those claims.

       Repetitive trauma injuries are among those injuries that are specifically covered by the act. General Statutes § 31-275 (16) (A) provides: “ ‘Personal injury’ or ‘iryuiy’ includes, in addition to accidental injury that may be definitely located as to the time when and the place where the accident occurred, an injury to an employee that is casually connected with the employee’s employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease.” Thus, pursuant to § 31-275 (16) (A), there are three types of injuries that fall within the definition of “ ‘[pjersonal injury’ ” and that are covered by the act: accidental injuries, repetitive trauma injuries, and occupational diseases.

       “[Ijf [a] notice of claim is sufficient to allow the employer to make a timely investigation of the claim, it triggers the employer’s obligation to file a disclaimer.” Pereira v. State, 228 Conn. 535, 543 n.8, 637 A.2d 392 (1994).

       General Statutes § 31-294c (a), which contains the notice requirements of the act, provides in relevant part: “No proceedings for compensation ■under the provisions of this [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 .... Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, or the date of the first manifestation of a symptom of the occupational disease and the nature of the disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. . . .”

       Subsection (b) of § 31-294c covers preclusion and 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, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested. ... 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 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, provided the employer shall not be required to commence payment 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 commenced payment for the alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim, shall be precluded from contesting liability 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 irqury or death 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 or death on or before such twenty-eighth day. An employer shall be entitled, if he prevails, to reimbursement from the claimant of any compensation paid by the employer on and after the date the commissioner receives written notice from the employer or his legal representative, in accordance with the form prescribed by the chairman of the Workers’ Compensation Commission, stating that the right to compensation is contested. 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.”

       The board has described preclusion as a “harsh remedy”; West v. Heitkamp, Inc., No. 4587, CRB-5-02-11 (October 27,2003); Verrinder v. Matthew’s Tru Colors Painting & Restoration, No. 4936, CRB-4-05-4 (December 6, 2006); having a “drastic effect . . . .” Aulenti v. Darien, No. 4571, CRB-7-02-9 (September 5, 2003) (“Also, we are conscious of the drastic effect of a [m]otion to [pjreclude, as it divests the employer of the right to contest liability for a claim. We do not believe that this rather harsh remedy should be imposed without ensuring that both parties have been provided with the due process protections inherent in a formal proceeding.”). While preclusion has been described as a “harsh remedy,” it is no less harsh than the strict statutory time period within which the employee must file his claim and notify his employer of the claim or otherwise relinquish it.

       “The manifest purpose of the preclusion statute is to ensure that employers investigate claims promptly and that employees be timely advised of the specific reason for the denial of their claim. . . . Extending the exception beyond that of subject matter jurisdiction would be at variance with the legislative intent.” (Citation omitted.) DeAlmeida v. M.C.M. Stamping Corp., 29 Conn. App. 441, 448-49, 615 A.2d 1066 (1992).

       The plaintiff argues that the May, 2006 claim established a new and separate compensable injury on the basis of a substantial aggravation of the original injuries and the disclosure of a new injury to her brain. The workers’ compensation review board in Kelly v. Dunkin Donuts, 4621 CRB 4-03-2 (April 5,2004), interpreting this court’s decision in Epps v. Beiersdorf, Inc., 41 Conn. App. 430, 435, 675 A.2d 1377 (1996), has characterized the word aggravation as a term of art within the workers’ compensation lexicon. “Rather than being akin to a recurrence under [General Statutes] § 31-307b . . . an aggravation in legal parlance signifies the intervention of a proximate cause that plays a role in worsening the effects of a prior injury, with benefits payable by the employer for whom the claimant is working at the time of the aggravation.” (Internal quotation marks omitted.) Kelly v. Dunkin Donuts, supra, 4621 CRB 4-03-2.

        Our appellate courts have grappled with the distinction between an “aggravation” constituting a new and separate claim and a “recurrence” or “exacerbation” that arises out of a preexisting injury. In Adzima v. UAC/Norden Division, 177 Conn. 107, 108, 411 A.2d 924 (1979), the plaintiffs decedent had sustained a workplace injury, thereafter had undergone back surgery to relieve pain, but subsequently had refused another surgery to treat continued pain. The employer accepted liability to pay for the compensable injury and paid all benefits due during this time. Id., 108-109. Shortly after refusing the second surgery, the decedent died; id., 108; and the plaintiff sought indemnity benefits for a 25 percent permanent partial disability to the decedent’s back. Id., 109-10. Because the defendant employer had failed to file a timely notice to contest the indemnity claim, the plaintiff contended that the board improperly had concluded that the conclusive presumption under General Statutes (Rev. to 1975) § 31-297 (b) did not bar the defendant employer from contesting whether the decedent had reached maximum medical improvement before his death, the prerequisite for receipt of that benefit. Id., 110-11. In finding no error in the commissioner’s denial of the plaintiffs motion to preclude, our Supreme Court determined that the plaintiffs claim was for further disability payments, rather than for a new injury. As such, the court concluded that the proper procedure for seeking further payments was to file a motion to modify the disability benefits under the existing voluntary agreement because it was the extent of disability, not the actual existence of a disabling injury, that was at issue. Id., 115-16. Adzima is readily distinguishable from the present case because the plaintiff here does not have a voluntary agreement with the defendant as to all of the cited injuries in either the October, 2004 claim or the May, 2006 claim. In the present case, the issue is whether the defendant is liable to pay for the plaintiffs injuries at all, not merely a dispute over the extent of her disability. Moreover, in Adzima, there was no dispute that the claims related to the same body part.
      In Tardy v. Abington Constructors, Inc., 71 Conn. App. 140, 143, 801 A.2d 804 (2002), the plaintiffs husband suffered a compensable injury in the course of his employment and received temporary total disability benefits until his death from a heart attack. After the husband’s death, the defendants filed a form 36 to discontinue his benefit payments, stating that his death was not work related. Id. Shortly thereafter, the defendant insurer received a letter that the plaintiffs counsel filed with the workers’ compensation commission stating that she did not dispute that the decedent’s disability benefits should be terminated but that it appeared that the work-related injury and its sequelae were substantial factors in causing the heart attack. Id. The plaintiff subsequently filed a form 30, notice of claim, with the defendant employer and the workers’ compensation commission, to which the defendant employer failed to file a form 43, notice to contest. Id., 143-44. This court, in affirming the commissioner’s determination that the defendant employer was precluded from challenging the plaintiffs claim, did not credit the defendants’ contention that a separate notice of claim was not required. Id., 148. We concluded that because the plaintiffs claim for death benefits was separate from the decedent’s underlying claim, it was of no aid to the defendants that a separate notice to contest would not be required if the plaintiff were pursuing on the decedent’s behalf a modification of the underlying claim or if a voluntary compensation agreement existed. Rather, because this was a new claim, the defendant employer was required to file a separate notice to contest, stating the specific grounds on which it challenged its liability. Id.

       We note that a Superior Court has dismissed the notion that if the notice of claim was unnecessary, the notice contesting liability was also unnecessary. In construing predecessor statutes to § 31-294c, the Superior Court concluded that “[t]he fact that a written notice of claim was not required to fulfill the requirements of [General Statutes (Rev. to 1972)] § 31-294 [the predecessor to § 31-294c] did not relieve the employer from the burdens imposed by the provisions of [General Statutes (Rev. to 1972)] § 31-297 (b) [the predecessor to § 31-294c [b]) after a written notice of claim was furnished.” DeLeon v. Jacob Bros., Inc., 38 Conn. Sup. 331, 337, 446 A.2d 831 (1981).

       In reaching this decision, we note that we have not made a determination about the substantive merits of the plaintiffs assertion that the May, 2006 claim constituted a new and separate injury. Rather, we merely conclude that the commissioner erred in considering the merits of the claim in dismissing the plaintiffs timely motion to preclude.

       We note that in a subsequent opinion, the board cited its reasoning for affirming the commissioner’s decision in the present case as follows: “As preclusion is a ‘harsh remedy’ . . . this commission is loathe to order it under circumstances where the underlying basis for preclusion appears to be allegations of technical deficiencies and not substantive deficiencies. . . . We followed similar reasoning in Callender a/k/a Woodbury v. Reflexite Corp., 5504 CRB 6-09-10 (October 8, 2010), where we refused to penalize a respondent who did not file a new disclaimer responsive to a new [f] orm 30C relating to an injury already under the commission’sjurisdiction.” (Citations omitted.) Lamar v. Boehringer Ingelheim Corp., 5588 CRB 7-10-09 (August 25, 2011). This quotation demonstrates that the board affirmed the commissioner’s dismissal on the basis of a premature determination that the plaintiffs May, 2006 claim arose from the same injuries as those described in her October, 2004 claim.