author: SULLIVAN, J.

text:
    STATE OF CONNECTICUT v. DOUGLAS F.

    (AC 34322)
    Gruendel, Beach and Sullivan, Js.

      Argued May 16
    officially released August 27, 2013

      David R. Gronbach, with whom, on the brief, was Earl Ormond, for the appellant (defendant).

      Nancy L. Walker, special deputy assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Amy L. Sedensky, senior assistant state’s attorney, for the appellee (state).

         In accordance with our policy of protecting the privacy interests of the victims of sexual assault and the crime of risk of injury to a child, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

SULLIVAN, J.

The defendant, Douglas F., appeals from the judgment of conviction, rendered after a trial to the court, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), and two counts of risk of injury to a child, in violation of General Statutes § 53-21 (a) (2). The defendant claims on appeal that (1) the state presented insufficient evidence at trial to support his conviction on all counts, (2) the court abused its discretion when it precluded the defense from questioning two witnesses as to whether the victim’s mother stated in 2003 that she had lied to the police, and (3) the court deprived the defendant of his constitutional right to due process of law when it questioned the defendant during his testimony. We affirm the judgment of the trial court.

The court reasonably could have found the following facts. The defendant is the father of the victim, who was bom in December, 2002. The defendant and the victim’s mother had an episodic relationship; the couple separated when the victim was three months old and thereafter the victim lived with his mother. The defendant played an irregular part in the victim’s life until July, 2008, when the defendant reunited with the victim’s mother and the two moved in together. During this period of reconciliation, the victim attended school during the day, and when at home, was supervised primarily by his mother, the defendant or the defendant’s mother. The renewed effort at a relationship proved futile, however, and on December 6, 2008, after a fight with the victim’s mother, the defendant moved out. Thereafter the victim continued to live with his mother.

On February 27, 2009, the victim, who was six years old at the time, told his mother about an incident that occurred while he was under the care of the defendant. He stated that the defendant requested that they take a shower together because they both were dirty. Then, as articulated by the court, “the defendant intentionally forced [the victim] to perform fellatio on him in the shower at the apartment that they were living in ... . The defendant intentionally forced [the victim’s] head towards his penis, placed his penis inside [the victim’s] mouth, and ejaculated in [the victim’s] mouth. After he ejaculated, the defendant then intentionally placed [the victim’s] penis inside his mouth.” After detailing this incident to his mother, his mother informed the Nauga-tuck police of the defendant’s conduct. The police then contacted the Department of Children and Families, who arranged a meeting with Jessica Alejandro, a clinician at Wellpath Behavioral Health in Waterbury, to conduct a videotaped forensic interview to determine whether the victim needed physical and/or mental health treatment. The court found that the assault occurred sometime between November 1, 2008, and December 24, 2008, and the victim was either five years old or had just turned six.

On March 5, 2009, the defendant was charged with three counts of sexual assault in the first degree in violation of § 53a-70, and three counts of risk of injury/ impairing the morals of a child in violation of § 53-21. The defendant elected atrial to the court on all charges. The state filed a long form substitute information reducing the defendant’s charges to two counts of sexual assault in the first degree in violation of § 53a-70 (a) (2), and two counts of risk of injury to a child in violation of § 53-21 (a) (2). On October 26, 2011, the court found the defendant guilty on all counts, and accordingly, rendered a judgment of conviction. The court sentenced the defendant to a total effective sentence of ten years imprisonment, with twelve years of special parole. This appeal followed.

I

The defendant first claims that the state presented insufficient evidence at trial to support his conviction of sexual assault in the first degree and risk of injury to a child. In particular, the defendant asserts that the state’s evidence was insufficient because of inconsistencies within the testimony of the state’s main witness, the victim, and because essential elements of the crime were allegedly refuted by the witnesses for the defendant. We disagree.

In reviewing a claim of insufficient evidence, this court applies a two part test. “First, we construe the evidence in the fight most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom, the trier of fact reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that support’s the [trier’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Tine, 137 Conn. App. 483, 487-88, 48 A. 3d 722, cert. denied, 307 Conn. 919, 54 A.3d 562 (2012).

The defendant’s trial was a credibility contest. There was no physical evidence of the assault; the state’s case rested upon the testimony of the victim, who was nine years old at the time that he testified, bolstered by the videotape of his 2009 forensic interview and the testimony of ten others, including his mother. The defense consisted of the testimony of the defendant, the defendant’s mother, his girlfriend, and that of a psychologist, who provided an expert opinion on the nature of a child victim’s recollection. Upon rendering its judgment of conviction, the court stated on the record that it determined the victim’s testimony “to be highly credible,” and that the victim’s testimony “belie [d] any conclusion that these memories [were] false or that [the victim’s mother] forced [the victim] to make up these allegations.” Furthermore, the court determined: “The court does not credit much of the defendant’s testimony. The court does not credit much of the testimony of the defendant’s mother.” The court found that the sexual assault detailed by the victim, credited as true, established all of the elements necessary to convict the defendant under both § 53a-70 (a) (2) and § 53-21 (a) (2), and rendered its judgment accordingly.

The defendant asserts that his conviction should be reversed because “no reasonable view of the evidence could support [a] conviction for sexual assault [in the first degree] and risk of injury.” In particular, the defendant contends, various inconsistencies within the victim’s testimony, along with evidence presented through witnesses for the defense, should have made the victim’s testimony improbable and unconvincing, and as a result the state failed to establish the defendant’s guilt beyond a reasonable doubt.

Logically, to establish a basis for reversal, the defendant is asking this court to first, assess the merits of a witness’ testimony in order to conclude that it was not credible, and subsequently, to conclude that the state lacked sufficient evidence as a result. This we may not do. “As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . [W]e must defer to the [finder] of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor, and attitude. . . . Credibility determinations are the exclusive province of the . . . fact finder, which we refuse to disturb.” (Citation omitted; internal quotation marks omitted.) State v. Gene C., 140 Conn. App. 241, 246-47, 57 A.3d 885, cert. denied, 308 Conn. 928, 64 A.3d 120 (2013). Here, the court acknowledged in its decision that the victim’s testimony contained inconsistencies, but nevertheless found these inconsistencies to be “relatively minor” and to “not undermine the veracity of the core of [the victim’s] in court testimony.” “It is well settled . . . that [e]vidence is not insufficient . . . because it is conflicting or inconsistent. . . . Rather, the [finder of fact] [weighs] the conflicting evidence and . . . can decide what—all, none, or some—of a witness’ testimony to accept or reject.” (Citation omitted; internal quotation marks omitted.) State v. Ocasio, 140 Conn. App. 113, 119 n.7, 58 A.3d 339, cert. denied, 308 Conn. 909, 61 A.3d 531 (2013). After witnessing the conduct, demeanor, and attitude of all of the witnesses, the court found the victim’s in-court testimony to be “highly credible,” while in comparison, it “did not credit much of the defendant’s testimony” or that of the defendant’s mother. It is not within the purview of this court to undermine that assessment.

The defendant argues that it was unreasonable for the court to rely solely on the victim’s inconsistent testimony for the details of the assault. As the court chose to credit the testimony of the victim, however, “[i]t matters little that the state’s case consisted primarily of that testimony or that it lacked physical evidence. Our Supreme Court has recognized that a [fact-finder] reasonably can find a defendant guilty of sexual assault on the basis of the victim’s testimony alone.” State v. Gene C., supra, 140 Conn. App. 247; see also State v. George A., 308 Conn. 274, 285, 63 A.3d 918 (2013) (trial court specifically credited victim’s testimony, which established beyond reasonable doubt that defendant had violated all elements of crime); State v. Caracoglia, 95 Conn. App. 95, 128, 895 A.2d 810 (testimony of one credible witness is sufficient evidence to convict one accused of a crime), cert. denied, 278 Conn. 922, 901 A.2d 1222 (2006). The evidence at trial was sufficient to convict the defendant because the testimony of the victim established the elements necessary to support conviction of two counts of sexual assault in the first degree and two counts of risk of injury to a child.

II

We next address the defendant’s claim that the court committed reversible error when it refused to admit, as a prior inconsistent statement, testimony from two witnesses that the victim’s mother stated in 2003 that she lied to the police regarding a different incident. We disagree.

It is well established that this court affords great deference to a trial court’s evidentiary rulings. State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998). “[T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. . . . This deferential standard is applicable to eviden-tiary questions involving hearsay, generally . . . and to questions relating to prior consistent statements, specifically.” (Citations omitted; internal quotation marks omitted.) Id., 801-802.

The record reveals the following additional facts relevant to the resolution of this claim. The defendant was arrested in 2003 after a report made by the victim’s mother to police. The record indicates that the victim’s mother never testified on direct examination about this arrest of the defendant in 2003. She was not questioned about this 2003 arrest until she was cross-examined by the defense, when defense counsel asked, “[0]n the date that you broke up [in 2003] did you call the police and have [the defendant] arrested?” The witness answered in the affirmative. Upon objection by the prosecutor, the trial court admitted this testimony as relevant evidence of the “stormy nature of their relationship and the fact that she made previous complaints to the police about him ... six years before.” Defense counsel next asked: “Did you tell [the defendant] that you had lied to the police officers and that if he came home to you, you would drop the charges?” The following colloquy then occurred among both counsel and the court:

“[Prosecutor]: I object based on that being hearsay. It’s an out of court statement that she made.
“The Court: Sustained.
“[Defense Counsel]: It’s her statement.
“The Court: I understand that.
“ [Defense Counsel]: And I’m going to impeach it when she says no, with the court’s permission.
“The Court: It’s still hearsay.
“[Defense Counsel]: I understand.”

Defense counsel then moved on to a different subject.

Later in the trial, defense counsel again attempted to introduce the statement, this time through direct examination of the defendant. The record indicates that defense counsel had anticipated an objection, because there was no question and no objection before counsel sought the permission of the court. The following exchange occurred:

“[Defense Counsel]: How long after that were you arrested?
“[Defendant]: About a week.
“[Defense Counsel]: Did [the victim’s mother] contact you to discuss the situation?
“[Defendant]: Afterwards, yes.
“[Defense Counsel]: I’m going to claim it as I asked [the victim’s mother] whether or not about lying to the police, she answered in the negative. It goes to an inconsistent statement. I know it doesn’t come in for the proof.
“The Court: Well, it’s extrinsic evidence of her character for truthfulness, correct?
“[Defense Counsel]: It’s an inconsistent statement in her testimony. I asked her specifically, whether or not she said that she had lied to the police and she was going to drop the charges if he came back and stayed with her. And she said, no.
“The Court: But you’re offering it for the truth. You’re offering it for whether or not she lied to the police.
“[Defense Counsel]: If I can get it in for the truth, it’s fine. If I can’t, then as a prior inconsistent statement which was what she testified in court. I’d like to get it in for one or the other.
“The Court: How do I know whether or not it’s a lie?
“[Defense Counsel]: Only by him answering it.
“The Court: It’s going to be his opinion on whether or not it was a he?
“[Defense Counsel]: No. He’s going to say what I said. I lied to the police and if you come back, I’ll go tell them that, but you have to stay with me. She told him it was a he.
“The Court: The objection is sustained.”

The record indicates that the victim’s mother was not allowed to answer defense counsel’s question during her testimony, and therefore she did not testify as to whether she made this alleged statement to the defendant after his arrest in 2003. The record also indicates that defense counsel never asked the victim’s mother if she did lie to the police in 2003.

The defendant argues that both his initial question to the victim’s mother and his question to the defendant should have been admitted as evidence of a prior inconsistent statement by the victim’s mother under Conn. Code of Evid. § 6-10 (a). Section 6-10 (a) of the Connecticut Code of Evidence provides: “The credibility of a witness may be impeached by evidence of a prior inconsistent statement made by the witness.” Nevertheless, “[i]mpeachment of a witness by the use of prior inconsistent statement is proper only if the two statements are in fact inconsistent. . . . Moreover, the inconsistency must be substantial and relate to a material matter.'” (Citations omitted; emphasis in original.) State v. Richardson, 214 Conn. 752, 763, 574 A.2d 182 (1990). While a finding of a statement’s inconsistency “is not limited to cases in which diametrically opposed assertions have been made”; State v. Whelan, 200 Conn. 743, 749 n.4, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d. 598 (1986); the determination of whether an inconsistency exists lies within the discretion of the court. State v. Avis, 209 Conn. 290, 302, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989).

We find that both discretionary rulings of the trial court were proper because the proffered statement by the defendant never qualified as evidence of a prior inconsistent statement by the victim’s mother under § 6-10 (a) of the Connecticut Code of Evidence. The victim’s mother did not address the defendant’s 2003 arrest on direct examination; furthermore, while she stated on cross-examination that she made a complaint that led to the defendant’s arrest in 2003, she did not testify as to why she called the police or to whether her report was a he. As a result, the proffered statement by the defendant was not actually inconsistent with any testimony by the victim’s mother on direct examination, or even during her testimony as a whole, and thus the proffered statement was not a “prior inconsistent statement” as required for admission under § 6-10 (a). For these reasons, we cannot hold that the court’s unwillingness to allow the defense to pursue such a line of questioning was an abuse of discretion. See State v. Avis, supra, 290 Conn. 303 (“[wjhen [the witness’] testimony is viewed in its entirety, it is not clear that his statements were inconsistent, and the trial court accordingly did not abuse its discretion in finding no inconsistency”).

Ill

As his final claim, the defendant asserts that he was denied a fair trial when the trial judge questioned him for “the clear purpose” of discrediting his testimony. In particular, the defendant claims that “the trial court crossed the line from impartial moderator to an advocate on behalf of the prosecution . . . [because] he led defendant’s testimony, questioned his credibility, and then berated him for his conduct.” Because the defendant failed to raise any objection concerning these matters before the trial court, we review this claim at the defendant’s request pursuant to Stale v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1985).

To prevail under Golding, the defendant must establish that “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived he defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id. Here, the defendant has satisfied the first two prongs of Golding because the record is adequate for review and the defendant’s claim is one of constitutional magnitude. See State v. Pharr, 44 Conn. App. 561, 568, 691 A.2d 1081 (1997) (“[d]ue process requires that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm” [internal quotation marks omitted]). Nevertheless, we conclude that the defendant cannot prevail on his claim of judicial misconduct under the third prong of Golding.

In order to ensure the protection of a criminal defendant’s due process rights, “the judge is more than a mere moderator of the proceedings. It is his responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.” (Internal quotation marks omitted.) State v. Harris, 28 Conn. App. 474, 479-80, 612 A.2d 123, cert. denied 233 Conn. 926, 614 A.2d 828 (1992). Nevertheless, “when it clearly appears to the judge that for one reason or another the case is not being presented intelligibly to the jury, the judge is not required to remain silent. On the contrary, the judge may, by questions to a witness, elicit relevant and important facts.” (Internal quotation marks omitted.) State v. Fernandez, 198 Conn. 1, 11, 501 A.2d 1195 (1985). “A court’s questioning of a witness is not necessarily improper, even if it draws attention to the strengths or weaknesses of a party’s case.” State v. Gracewski, 61 Conn. App. 726, 735, 767 A.2d 173 (2001). Instead, to rise to the level of a constitutional violation, such an intervention “would have to reach a significant extent and be adverse to the defendant to a substantial degree before the risk of either impaired functioning of the [finder of fact] or lack of the appearance of a neutral judge conducting a fair trial.” (Internal quotation marks omitted.) State v. Peloso, 109 Conn. App. 477, 491, 952 A.2d 825 (2008). “[T]he jury has a natural tendency to look to the trial judge for guidance. Thus, the court must take great caution not to intervene in such a manner that it implies to the jury the result the court supposedly desires. ... In the case before us, however, the judge and fact finder were one and the same. Accordingly, any appearance of partiality in the court’s conduct carried less danger of prejudicing the defendant than it would have in a trial.” (Citation omitted.) Id., 493.

The defendant challenges two instances of judicial intervention in which the court questioned the defendant over the role his son played in his decision to move out, and the means by which he ensured his son’s safety and welfare while he was living elsewhere. The defendant asserts that this questioning “mischaracter-ized the defendant’s testimony” and “used the admission it obtained by leading the defendant to attack his credibility,” therefore “cross[ing] the line from impartial moderator to an advocate on behalf of the prosecution.” We disagree.

The record indicates that the court told the defendant that it pursued its line of questioning “to assess [the defendant’s] credibility [and] to help me gauge whether or not, in fact, [the defendant] went back over to the apartment some time shortly after December 6.” The court further qualified that it would not “take the fact that he didn’t pay child support and say he, therefore, must have committed a sexual assault. I would never do that. That wouldn’t be a proper use of the evidence.” Contrary to the defendant’s assertions, the record does not indicate that the trial court berated the defendant for his conduct or personally attacked his credibility; instead, the record indicates that the contested questioning was pursued to clarify the defendant’s testimony and to understand his concern for his son. This contested questioning lacked any impermissible signals of siding with the prosecution and does not raise concerns that the defendant did not receive a fair trial. Accordingly, the defendant has failed to satisfy Golding's third prong.

The judgment is affirmed.

In this opinion the other judges concurred.

       To be guilty of sexual assault in the first degree under § 53a-70 (a) (2), a person must “[engage] in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person.” To be guilty of risk of itvjury to a child under § 53-21 (a) (2), a person must have “contact with the intimate parts . . . of a child under the age of sixteen years” or subject “a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child.”

       The defendant cites State v. Cobbs, 203 Conn. 4,11, 522 A.2d 1229 (1987), to assert that we will reverse a judgment “where the state’s evidence is improbable and unconvincing . . . .” The defendant, however, has mischar-acterized the holding of Cobbs. In Cobbs, the Supreme Court held the evidence insufficient to sustain a conviction for felony murder because the state failed to produce any evidence that the murder occurred in the course of and in furtherance of the underlying felony—other than that the two crimes involved the same participants and victim—and therefore the record revealed “absolutely no evidence from which a trier of fact could reasonably have concluded, without resort to speculation or conjecture, that this element of the crime was established. ” Id., 13. In assessing this record, however, the court did “not weigh the evidence nor resolve questions of credibility of witnesses” but instead looked “to that evidence and the reasonable inferences therefrom which support the findings of the trial court.” Id., 6-7. Therefore, contrary to the assertion of the defendant in the present case, at issue in Cobbs was not whether the evidence itself was improbable and unconvincing, but whether the defendant’s guilt was improbable and unconvincing in light of the evidence presented in that case.

       The defendant also analogizes the present case to State v. Ritrovato, 280 Conn. 36,67,905 A.2d 1079 (2006), in which the Supreme Court observed that “a sexual assault case lacking physical evidence is not particularly strong, especially when the victim is a minor.” Reliance on that case, in which the issue was prejudicial exclusion of evidence, is misplaced. In Ritrovato, the defendant asserted harmful error because admission of certain evidence, which had been excluded by the trial court, would have undermined the critical testimony of the victim. Id., 58. Unlike in Ritrovato, here the defendant is not asserting that he was prevented from undermining the victim’s testimony. Instead, here the defendant is asserting that he was successful in undermining the victim’s testimony, but that the trial court failed to agree.

       The defendant relies on our holding in State v. Fourtin, 118 Conn. App. 43, 48, 982 A.2d 261 (2009), aff'd, 307 Conn. 186, 52 A.3d 674 (2012), to assert that this court may reverse a conviction if it is “not persuaded that the state produced any credible evidence” to satisfy its burden. The defendant’s reliance on this case is misplaced. In Fourtin, we held that the state failed to produce sufficient evidence to support a conviction under General Statutes § 53a-65 (6) because the state’s evidence established that the victim was unable to communicate with various doctors during examinations, but failed to establish that the victim was unable to communicate at the actual time of the assault—an element of the crime necessary for conviction. Id., 52-53. Here, unlike in Fourtin, because the court credited the victim’s “ability in court and during the forensic interview to describe the assault in specific detail,” the state provided credible evidence to support the necessary elements of the crime of which the defendant was convicted.

       In his principal brief, the defendant contends only that the proffered statement should have been admitted as a prior inconsistent statement under § 6-10 of the Connecticut Code of Evidence, and does not argue whether the proffered statement was hearsay. The defendant argues in his reply brief, for the first time, that this statement was not hearsay because it was offered to show the effect on the hearer. We decline to entertain this argument because it was not raised in the defendant’s main brief, and as a result is considered abandoned. See, Planter v. Charlotte Hungerford Hospital, 300 Conn. 33, 59, 12 A.3d 885 (2011) (“the plaintiffs . . . have abandoned their claims with respect to the individual defendants by raising them for the first time in their reply brief, which is an impermissible practice”); State v. Richardson, 291 Conn. 426, 431, 969 A.2d 166 (2009) (“[bjecause the defendant failed to raise this issue in his main brief, it is abandoned”); State v. Lopez, 280 Conn. 779, 816 n.25, 911 A.2d 1099 (2007) (“[i]t is a well established principle that arguments cannot be raised for the first time in a reply brief’ [internal quotation marks omitted]).

       In fact, defense counsel appeared to concede that the statement—that the victim’s mother had told the defendant that she had lied to the police— was hearsay, and further, his argument that “I’m going to impeach it when she says no” indicates an awareness that the question’s value for impeachment would arise only after the witness answered. We cannot say that the court’s decision to exclude this question was a manifest abuse of its discretion.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    KAREN MULTARI v. YALE-NEW HAVEN HOSPITAL, INC.
    (AC 34396)
    Gruendel, Robinson and West, Js.

      Argued December 5, 2012
    officially released August 27, 2013

      D. Randall DiBella, for the appellant (plaintiff).

      Michael D. Schweitzer, for the appellee (defendant).
   Opinion

ROBINSON, J.

The plaintiff, Karen Multari, appeals from the judgment of dismissal rendered by the trial court in favor of the defendant, Yale-New Haven Hospital, Inc. The dispositive issue on appeal is whether the court erred in concluding that the plaintiffs complaint sounded in medical malpractice, rather than ordinary negligence. We reverse the judgment of the trial court.

The following facts, as alleged in the complaint, and procedural history are relevant to our resolution of this appeal. The plaintiff is the grandmother of a child who was treated at the hospital. On November 6, 2009, she accompanied her son and granddaughter to the defendant’s premises where her granddaughter underwent a surgical procedure. After the procedure, the defendant’s staff reported to the plaintiff that the child was “thrashing around the recovery room as a result of the anesthesia.” During a period when her son had left the surgical area, she was informed by the defendant that she must take the child and leave the hospital. Despite her protests that she wanted to wait for her son, a nurse packed up the child’s belongings, put on the child’s coat, and ushered the plaintiff and the child out of the hospital without the benefit of a wheelchair. The plaintiff, while carrying the child, tripped and fell as she exited the hospital, sustaining injuries.

The plaintiff filed a summons and complaint on October 31,2011. In addition to alleging the previously stated facts, in paragraph 9 of her complaint, the plaintiff alleged that her injuries “were caused by the negligence of the defendant, its agents, servants and/or employees or any one or more of the aforementioned in one or more of the following ways: (’a) [i]n that they created a dangerous condition by causing, permitting or insisting that the plaintiff and her granddaughter leave the hospital before the child was fully awake from surgeiy, and without the benefit of a wheelchair; (b) in that they created a dangerous condition by causing, permitting or insisting that the plaintiff and her granddaughter leave the hospital before the child was fully awake from surgery, and before the plaintiffs son could return to help her; (c) in that they knew or should have known, the danger in the plaintiff carrying a groggy child and various belongings out to the parking area by herself, and should have assisted her; [and] (d) in that they knew, or should have known that it was unsafe to discharge a patient who was not fully recovered from anesthesia.”

The plaintiff did not attach to her complaint a certificate of good faith or an opinion letter from a similar health care provider pursuant to the requirements of General Statutes § 52-190a. On December 20, 2011, the defendant filed a motion to dismiss the plaintiffs action on the ground that she failed to comply with the requirements of § 52-190a. On March 6, 2012, the court, over the plaintiffs objection, granted the defendant’s motion. This appeal followed.

On appeal, the plaintiff argues that the court improperly found that her complaint sounded in medical malpractice, rather than ordinary negligence. She maintains that a “fair reading of the complaint reveals that the condition of the child were circumstances relating to the plaintiffs fall and not the propriety of the child’s medical treatment. Moreover, the complaint does not refer to or claim any harm whatsoever to the patient,” mention the standard of care for medical malpractice, or name any physician. The plaintiff further asserts that none of the prongs of the three part test first enumerated in Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn. App. 353, 357-58, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001), to determine if a claim sounds in ordinary negligence or medical malpractice have been met. Accordingly, the plaintiff avers that her complaint does not sound in medical malpractice. We agree with the plaintiff.

The applicable standard of review is well settled. “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . When a . . . court decides a . . . question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable fight. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.” (Internal quotation marks omitted.) Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 10-11, 12 A.3d 865 (2011). We also note that “[o]ur review of the trial court’s interpretation of the pleadings ... is plenary.” (Internal quotation marks omitted.) Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn. App. 569, 576, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).

“The classification of a negligence claim as either medical malpractice or ordinary negligence requires a court to review closely the circumstances under which the alleged negligence occurred. [Professional negligence or malpractice . . . [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services. . . . Furthermore, malpractice presupposes some improper conduct in the treatment or operative skill [or] . . . the failure to exercise requisite medical skill .... From those definitions, we conclude that the relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment.” (Emphasis in original; internal quotation marks omitted.) Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn. App. 357-58.

Additionally, “[i]n Connecticut, we long have eschewed the notion that pleadings should be read in a hypertechnical manner. Rather, [t]he modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties. . . . Our reading of pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension.” (Internal quotation marks omitted.) Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 802, 945 A.2d 955 (2008).

None of the allegations in subparagraphs 9 (a) through (c) satisfies the three part test used to determine whether a claim sounds in medical malpractice. See Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn. App. 358. The plaintiff alleges that she was at the hospital for her granddaughter’s surgical procedure and neither party disputes that the defendant is a medical professional. The complaint, however, characterizes the defendant as “own[ing] and/ or operat[ing] and [having] control over premises known as Yale-New Haven Children’s Hospital” and alleges that it was negligent by “creat[ing] a dangerous condition” and not assisting the plaintiff as she carried her granddaughter and various belongings to the parking area. In interpreting the plaintiffs complaint broadly and realistically, the court cannot construe the plaintiff as suing the defendant in its capacity as a medical provider. Because none of the allegations in subpara-graphs 9 (a) through (c) implicates the defendant’s status as a medical provider, the first prong of the three part test has not been met.

Additionally, none of the plaintiffs allegations in sub-paragraphs 9 (a) through (c) claims that she was the recipient of medical services, that she had a medical professional-patient relationship with the defendant, or that the defendant’s decision to force her to leave the hospital involved the exercise of medical judgment. Thus, both the second and third prongs of the three part test have not been met. Reading the complaint broadly, as we are required to do, one could infer that the defendant forced the plaintiff to leave because her granddaughter was being disruptive. The fact that the plaintiffs granddaughter was thrashing around after a medical procedure does not negate the actual, nonmedi-cally related reason for the discharge—a disruptive child. Moreover, a reasonable reading of the allegations indicate that the plaintiff is not alleging that a wheelchair was necessary as a part of the child’s medical treatment, but as something to prevent the plaintiff from becoming injured while transporting the child from the defendant’s facilities. The plaintiff has not alleged medical malpractice in subparagraphs 9 (a) through (c), but simply ordinary negligence against an entity that happens to be a medical provider. The fact that the defendant is a medical provider, does not, by itself, preclude a finding that the plaintiffs action sounds in ordinary negligence. See Jarmie v. Troncale, 306 Conn. 578, 586, 50 A.3d 802 (2012).

Moreover, even though subparagraph 9 (d) employs language that is typically used to denote medical malpractice, reading that subparagraph in context with the rest of the complaint reveals that the subparagraph is merely an inartfully worded description of the circumstances surrounding the reason for the plaintiffs ejection from the defendant’s premises. The plaintiff alleges that the defendant owned and had control over the premises where she fell. She further alleges that employees of the defendant refused her requests to remain until her son could return. Although the complaint mentions that the plaintiffs granddaughter was still groggy from the anesthesia when they left the defendant’s premises, the plaintiff has not brought suit on behalf of her granddaughter, nor has she named an individual medical provider as a defendant. A fair reading of the complaint reveals that the plaintiff alleges that the defendant’s forcing her to leave without any help or her son’s presence led to the plaintiff tripping and falling because she had to carry her groggy granddaughter, a diaper bag, and her pocketbook. In essence, the plaintiff, who was not under the defendant’s medical care, is alleging that the defendant should not have forced her to leave its premises unaided. Such allegations do not constitute medical malpractice.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       The plaintiff argues in the alternative that even if her claim sounds in medical malpractice, the requirements of General Statutes § 52-190a do not apply to her because she was not a patient pursuant to the statute. Because we conclude that the plaintiffs complaint sounds in ordinary negligence, not medical malpractice, we need not reach this argument.

       General Statutes § 52-190a (a) provides in relevant part: “No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant’s attorney, and any apportionment complainant or the apportionment complainant’s attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. . . .”

       The analysis herein is limited to the issue of whether the allegations of the complaint state a cause of action sounding in medical malpractice or ordinary negligence. It does not address the strength or weakness of said allegations or whether the duties alleged to have been breached actually exist.


author: BORDEN, J.

text:
    THOMAS DUBROSKY v. BOEHRINGER INGELHEIM CORPORATION ET AL.
    (AC 35030)
    Beach, Bear and Borden, Js.

      Argued May 29
    officially released August 27, 2013

      Colette S. Griffin, with whom was Harrold St. Juste, for the appellants (defendants).

      Lawrence Morizio, for the appellee (plaintiff).
   Opinion

BORDEN, J.

The dispositive issue in this workers’ compensation appeal is whether an employer is deemed conclusively precluded from contesting the extent of a disability under General Statutes § 31-294c (b) when it was impossible to commence payment of compensation within the statutory time period. The defendant employer, Boehringer Ingelheim Corporation, appeals from the decision of the Workers’ Compensation Review Board (board) affirming the decision of the Workers’ Compensation Commissioner for the Fourth District (commissioner) granting the motion to preclude pursuant to § 31-294c (b) filed by the plaintiff, Thomas Dubrosky. We reverse the decision of the board.

The following facts, as found by the commissioner, and procedural history are relevant to our resolution of this appeal. The plaintiff has worked for the defendant since 1974 as a pharmaceutical salesman. On January 9, 2009, the plaintiff slipped and fell on ice in the driveway of the Stratford Community Health Clinic while carrying product samples back to Ms veMcle after a business call. On January 12,2009, the plaintiff reported the incident to Ms supervisor by e-mail. The plaintiff did not immediately seek medical treatment and did not miss any time from work.

The plaintiff filed a form 30C on February 18, 2009, seeking compensation for an injury to his left knee sustained during the slip and fall. The plaintiff first sought medical attention from his orthopedist, David F. Bindelgass, as part of a follow-up visit regarding his already arthritic left knee on February 27, 2009. The plaintiff subsequently sought medical treatment from Dr. Bindelglass on March 27 and October 2, 2009. The defendant received a bill from Dr. Bindelglass on June 1, 2009, seeking payment for treatments rendered to the plaintiff on February 27 and March 27, 2009. The defendant paid the bill on June 18, 2009. The defendant later paid another medical bill related to the plaintiffs treatment by Dr. Bindelglass on October 2, 2009.

The defendant filed a form 43 contesting the claim on October 20,2009, less than one year from the claimed injury. A formal hearing was held before the commissioner on January 3 and 31, 2011. The issues before the commissioner related to compensability for and causation of the injury, whether the form 43 was timely filed, the defendant’s contest of the plaintiffs claim, the plaintiffs motion to preclude, and the defendant’s motion to dismiss. The defendant withdrew its motion to dismiss at the January 31, 2011 hearing and accepted that an incident had occurred, but it sought to maintain its ability to contest the extent of the plaintiffs disability. At the end of the hearing, the only issues remaining before the commissioner were whether to grant the plaintiffs motion to preclude and whether the defendant could contest the extent of the plaintiffs injury. The plaintiff, in his motion to preclude, argued that the defendant had failed to file a timely disclaimer to the plaintiffs form 30C, and, therefore, under § 31-294c (b), the defendant was conclusively presumed to have accepted the compensability of the injury and the extent of the alleged disability.

On September 6, 2011, the commissioner issued a finding and award granting the plaintiffs motion to preclude. The commissioner concluded that the plaintiff filed a timely form 30C and, although the defendant had verbally accepted the claim, no voluntary agreement had been issued by the close of the record. The commissioner further found that although the defendant could not have commenced payment within twenty-eight days of the plaintiffs filing a form 30C because no medical bills had been received from the plaintiff during that time, the defendant could have filed a form 43 within the twenty-eight day period under the statute. Consequently, the commissioner precluded the defendant from contesting the plaintiffs claim, including the extent of his disability. The commissioner found that Dr. Bindelglass, who testified for the plaintiff, causally related the plaintiffs medical condition and need for treatment to the January 9, 2009 injury, and ordered the defendant to pay for all reasonable and necessary medical treatments and indemnity benefits related to the plaintiffs claim.

The defendant subsequently filed a motion to correct, which the commissioner denied in its entirety. The defendant filed a petition for review with the board on September 19,2011, arguing, inter alia, that the commissioner improperly granted the plaintiffs motion to preclude in view of his finding that the defendant could not have paid for medical treatment within twenty-eight days of receiving the plaintiffs written notice of claim. The board issued an opinion affirming the commissioner’s granting of the plaintiffs motion to preclude. The board held that because the defendant did not take any material actions responsive to the plaintiffs form 30C within the statutorily mandated period of twenty-eight days, the commissioner was obligated to grant the motion to preclude. This appeal followed.

On appeal, the defendant claims that the board improperly upheld the commissioner’s ruling granting the plaintiffs motion to preclude because of the defendant’s failure to comply with § 31-294c (b) by filing a notice to contest liability or commencing payment of medical bills within twenty-eight days of receiving the plaintiffs notice of claim. Specifically, the defendant argues that it could not comply with § 31-294c (b) to contest its liability, and that it was not able to commence payment of medical bills within twenty-eight days because no medical bills were generated within the statutory time period. We conclude that, under the facts of this case, it was not reasonably practical for the board to require the defendant to have complied with § 31-294c (b), and, therefore, the board’s decision to uphold the commissioner’s granting of the motion to preclude was improper.

We begin by setting forth our standard of review governing workers’ compensation appeals. “The conclusions drawn by [the commissioner] 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 unreasonably drawn from them. . . . Neither the . . . board nor this court has the power to retry facts. It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and [the] board. . . . The commissioner has the power and duty, as the trier of fact, to determine the facts.” (Internal quotation marks omitted.) Mehan v. Stamford, 127 Conn. App. 619, 625, 15 A.3d 1122, cert. denied, 301 Conn. 911, 19 A.3d 180 (2011). “Our scope of review of the actions of the board is similarly limited. . . . The role of this court is to determine whether the review [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.) Bugryn v. State, 97 Conn. App. 324, 327, 904 A.2d 269, cert. denied, 280 Conn. 929, 909 A.2d 523 (2006).

“In deciding a motion to preclude, the commissioner must engage [in] 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.” Callender v. Reflexite Corp., 137 Conn. App. 324, 338, 49 A.3d 211, cert. granted on other grounds, 307 Conn. 915, 54 A.3d 179 (2012).

Our Supreme Court has articulated the underlying puipose of § 31-294c (b) on several occasions. In Harpas v. Laidlaw Transit, Inc., 286 Conn. 102, 110-11, 942 A.2d 396 (2008), our Supreme Court examined the preclusion scheme set forth in § 31-294c (b): “The first two sentences of § 31-294c (b) address the procedure that an employer must follow if it wants to contest liability to pay compensation .... The statute prescribes therein that, within twenty-eight days of receiving a notice of claim, the employer must file a notice stating that it contests the claimant’s right to compensation and setting forth the specific ground on which compensation is contested. The third sentence: (1) provides that an employer who fails to file a timely notice contesting liability must commence payment of compensation for the alleged injury within that same twenty-eight day period; and (2) grants the employer who timely commences payment a one year period in which to ‘contest the employee’s right to receive compensation on any grounds or the extent of his disability’; but (3) relieves the employer of the obligation to commence payment within the twenty-eight day period if the notice of claim does not, inter alia, include a warning that ‘the employer shall be conclusively presumed to have accepted the compensability of the alleged injury 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.’ . . . General Statutes § 31-294c (b). The fourth sentence provides for reimbursement to an employer who timely pays and thereafter prevails in contesting compensability. Finally, the fifth sentence sets forth the consequences to an employer who neither timely pays nor timely contests liability: ‘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.’ . . . General Statutes § 31-294c (b).” (Emphasis in original.) Id., 110-11. In Harpaz, our Supreme Court further concluded that the conclusive presumption of compensability under § 31-294c (b) bars challenges to both the employer’s liability and the extent of the disability. Id., 105.

“Our Supreme Court, in discerning the legislative intent behind the notice requirement of General Statutes (Rev. to 1968) § 31-297 (b), now § 31-294c (b), explained that the statute is meant to ensure (1) that employers would bear the burden of investigating a claim promptly and (2) that employees would be timely apprised of the specific reasons for the denial of their claim. . . . The court noted that the portion of the statute providing for a conclusive presumption of liability in the event of the employer’s failure to provide timely notice was intended to correct some of the glaring inequities of the workers’ compensation system, specifically, to remedy the disadvantaged position of the injured employee . . . .” (Internal quotation marks omitted.) Lamar v. Boehringer Ingelheim Corp., 138 Conn. App. 826, 840, 54 A.3d 1040, cert. denied, 307 Conn. 943, 56 A.3d 951 (2012).

Applying these principles to the case before us, we conclude that the defendant was unable to comply with § 31-294c (b), and, therefore, was improperly precluded from contesting the extent of the plaintiffs disability. It is undisputed that both the commissioner and the board found that it was not possible for the defendant to have commenced timely payment of medical bills, because no medical bills were generated until after the twenty-eight day statutory time period had elapsed.

The plaintiff, however, urges us to conclude, as both the commissioner and the board did, that the defendant could instead have filed a timely form 43 to avoid the conclusive presumption under § 31-294c (b). We disagree.

Form 43 is entitled, “Notice to Compensation Commissioner and Employee of Intention to Contest Employee’s Right to Compensation Benefits,” and includes space for the employer to provide identifying information, details of the employee’s injury and an empty box for the employer to fill in details regarding the employer’s intention to “contest liability to pay compensation benefits to the employee named on this form.” See State of Connecticut Workers’ Compensation Commission, “Form 43,” (last modified July 13, 2009), available at http://www.wcc.state.ct.us/dow-nload/acrobat/43.pdf (last visited August 13, 2013). The language of form 43 indicates that it is to be used by employers who are contesting their liability to pay alleged compensation benefits. The form does not include a space for those employers who initially accept liability but may later, after investigation, choose to contest the extent of the disability. This distinction is not a superficial one, as an employer who is contesting liability is distinguishable from one who solely contests the extent of the disability. For example, in Adzima v. UAC/Norden Division, 177 Conn. 107, 113, 411 A.2d 924 (1979), our Supreme Court recognized the difference between an employer contesting the extent of the employee’s disability instead of its liability: “The statute clearly speaks to a threshold failure on the employer’s part to contest ‘liability’: to claim, for example, that the injury did not arise out of and in the course of employment . . . that the injury fell within an exception to the coverage provided by workmen’s compensation ... or that the plaintiff was not an employee of the defendant, but an independent contractor . . . .” (Citations omitted.) See id., 114 (“no question that [employee’s] injury was a compensable injury within the terms of the workmen’s compensation statute, i.e., that he had a ‘right to receive compensation’; the only contest concerned the extent of his lower back disability”).

Although we have no doubt that employers may have previously used form 43 to disclaim only the extent of a disability and not liability, amending the form to suit their specific disclaimer needs, that procedure unfairly requires such employers either to amend the form or to state untruthfully their intention to contest liability in order to preserve their ability to later challenge the extent of disability. The legislature, however, designed preservation of such challenges by allowing an employer, instead of filing a form 43, to commence payment of compensation for the alleged injury within the twenty-eight day period; and granting the employer who timely commences payment a one year period in which to “contest the employee’s right to receive compensation on any grounds or the extent of his disability . . . .” (Emphasis added.) General Statutes § 31-294c (b); see Harpaz v. Laidlaw Transit, Inc., supra, 286 Conn. 123-24 (discussing intent of 1993 amendments to § 31-294c [b] to allow for preservation of employer’s right to contest liability and extent of disability for one year period for employers who timely paid compensation).

The circumstances of this case, however, place the defendant squarely within a situation that the statutory scheme fails to contemplate, namely, where an employee files a form 30C claim for which the employer does not contest liability but fails to generate medical bills within twenty-eight days for the employer to commence payment. To require strict compliance in a case such as this creates an incentive for claimants to deliberately delay seeking medical treatment until the very end of the twenty-eight day period such that the employer cannot file a timely form 43 to avoid being precluded from contesting the extent of the claimant’s disability because no medical bills are generated sufficiently within the statutory time period to allow the employer “to commence payment.” See General Statutes § 31-294c (b). “We have often recognized that those who promulgate statutes ... do not intend to promulgate statutes . . . that lead to absurd consequences or bizarre results.” (Internal quotation marks omitted.) Lamar v. Boehringer Ingelheim Corp., supra, 138 Conn. App. 835.

“It is well settled that notice provisions under the [Workers’ Compensation Act] should be strictly construed.” Soares v. Max Services, Inc., 42 Conn. App. 147, 164, 679 A.2d 37, cert. denied, 239 Conn. 915, 682 A.2d 1005 (1996). As this court has recognized, however, “[o]ur requirement of strict compliance . . . has presumed the possibility of compliance.” Thompson v. Roach, 52 Conn. App. 819, 823, 728 A.2d 524, cert. denied, 249 Conn. 911, 733 A.2d 227 (1999) (affirming board’s decision not to preclude transfer of liability to Second Injury Fund where notice was impossible to give and concluding that failure to comply strictly with workers’ compensation law’s notice requirements did not preclude transfer of liability to fund). Thus, where notice, by filing a form 43 or commencing medical payments is impossible to provide in a timely manner, the failure to comply strictly with § 31-294c (b) will not preclude the employer from contesting the extent of the employee’s disability. See Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 393 n.10, 618 A.2d 1340 (1993) (“[w]e suggest, however, that further construction of the notice [of employee’s claim] provision, when and if it becomes necessary, would not require a type of notice that is impossible to give”). Finally, we note the limited applicability of this excusing of strict compliance because in the vast majority of workers’ compensation cases it will be possible for an employer either to file a truthful form 43 because it is actually contesting liability or to pay medical bills generated by the claimant within twenty-eight days. As neither option was available to the defendant under the circumstances of this case, it should not be precluded from contesting the extent of the plaintiffs disability when it filed its form 43 within one year from the date of the injury.

The decision of the Workers’ Compensation Review Board is reversed and the case is remanded to the board with direction to reverse the decision of the commissioner and to remand the case to the commissioner for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 31-294c (b) 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. The employer shall send a copy of the notice to the employee in accordance with section 31-321. 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 óf the written notice of claim, and (2) the employer shall be conclusively presumed to have accepted the compensability of the alleged injury 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. . . . Notwithstanding the provisions of this subsection, an employer who fails to contest liability for an alleged injury or death on or before the twenfy-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.”

       Esis New England WC Claims, the workers’ compensation liability insurer for Boehringer Ingelheim Corporation, also is a defendant. For convenience we refer in this opinion to Boehringer Ingelheim Corporation as the defendant.

       The defendant also claims that the board improperly upheld the commissioner’s conclusion that the plaintiffs need for knee replacement surgery is causally related to the work related injury. In light of our conclusion that the defendant was improperly precluded from contesting the extent of the plaintiffs disability, it is unnecessary for us to address this claim.

       The plaintiffs e-mail to his supervisor described his incident as a “[fjall in parking [l]ot” and the injury was “RT & LT knees” with an outcome of “[pjainful and difficulty walking” and “[ljeft [kjnee swollen and unable to bend.” The e-mail also included that his action in response to the incident was to “[w]ait and see—ice, elevate, home medication, rest. If pain and inability to walk persist will see physician.”

       “A form 30C is the document prescribed by the . . . commission to be used when filing a notice of claim pursuant to the [Workers’ Compensation Act].” (Internal quotation marks omitted.) Lamar v. Boehringer Ingelheim, Corp., 138 Conn. App. 826, 828 n.3, 54 A.3d 1040, cert. denied, 307 Conn. 943, 56 A.3d 951 (2012).

       “A form 43 is a disclaimer that notifies a claimant who seeks workers’ compensation benefits that the employer intends to contest liability to pay compensation. If an employer fails timely to file a form 43, a claimant may file a motion to preclude the employer from contesting the compensability of his claim.” (Internal quotation marks omitted.) Lamar v. Boehringer Ingelheim Corp., 138 Conn. App. 826, 828 n.2, 54 A.3d 1040, cert. denied, 307 Conn. 943, 56 A.3d 951 (2012).

       The defendant’s form 43 stated the following: “[The defendant] maintains that the current need for treatment and any periods of future disability are related to the underlying preexisting degenerative joint disease and not the work incident of 01/09/09. Ongoing treatment should be placed to group insurance. In addition; prior payment of medicals have been paid without prejudice. Carrier is seeking a medical authorization from the employee to collect all prior records.”

       Because we conclude that the defendant reasonably could not have complied with § 31-294c (b), and reverse the board’s decision on that ground, we need not discuss the defendant’s alternative theory based on its verbal acceptance of the claim as constituting a voluntary agreement.

       The form 30C required the plaintiff to “[d]escribe [his] [i]r\jury and [h]ow [i]t [h]appened.” The plaintiff responded: “I was leaving a business call [at] the Stratford Community Health Clinic. I fell carrying my samples in the driveway of parking lot.” Although the plaintiff described how his injury occurred, there is no description of the plaintiffs injury. The commissioner did not find that or explain why the plaintiffs claim was adequate on its face.

       The commissioner found that “[w]hile the [defendant] could not have paid for medical treatment within the [twenty-eight] day period because it was unaware such treatment had been provided, the [defendant] could have filed a [f]orm 43 within the relevant period . . . .” The board’s decision recognized that “ [w]hile it may not have been possible in this case to pay for medical care or pay indemnity payments without prejudice, it was possible to file a [f]orm 43 (or in the alternative, accept the claim) and advise the [plaintiff] as to what the [defendant’s] intentions were.”

       Indeed the chairman of the board specifically alluded to employers filing a form 43 as a matter of course during the parties’ oral argument on the defendant’s petition for review, stating that “[t]here wasn’t a legal impossibility of filing a form 43 in saying, in effect, that we are investigating and we’ll get back to you, or we leave you to your proof, or something akin to a general denial, which is happening day in and day out on a regular basis, the [form] 30C comes in on Monday, the [form] 43 goes out on Tuesday.” Even if we were to conclude, however, that the defendant should have filed a form 43 to make sure that it was not precluded from contesting liability in the event that it sought to contest the extent of the disability, such a “general denial” would not have been sufficient to serve as adequate notice. See Menzies v. Fisher, 165 Conn. 338, 347-48, 334 A.2d 452 (1973) (employer’s notice that stated “[w]e deny a compensable accident or injury” was fatally deficient in failing to “reveal to the claimant the specific grounds on which the right to compensation is contested” [internal quotation marks omitted]); also see Wilcox v. Naugatuck, 16 Conn. App. 676, 677-78, 548 A.2d 469 (1988) (Employer’s disclaimer failed to meet statutory requirements: “Employee did not sustain accidental injury as defined by the Workers’ Compensation Act. We deny the injury, any disability and casual relation.’ [Internal quotation marks omitted.]).