Monaco-Selmer v. Total Customer Service
At the point where neither a payment without prejudice for total disability nor a Form 43 was proffered to the claimant, the respondent's safe harbor from preclusion lapsed. The trial commissioner found that the claimant, Sabrina Monaco-Selmer filed a Form 30C and, more than 28 days later, after making two $150 payments, the respondents, the employer, Total Customer Service, and its insurer, Travelers Indemnity Company, filed a Form 43 denying the claim. The commissioner granted the claimant's motion to preclude based on the lack of a timely disclaimer. The commissioner rejected the respondents' position that the two payments advanced complied with C.G.S. §31-204c(b) and tolled the obligation to file a disclaimer. The commissioner found that the respondents had not complied with Administrative Regulation §31-296-2 because they had not calculated an average weekly wage or disability rate or provided the claimant with any written explanation as to how they arrived at the payment amounts. The respondents appealed. The Compensation Review Board affirmed the decision and dismissed the appeal. The board agreed with the commissioner that the payments to the claimant did not comport with the statutory requirements under C.G.S. §31-294c(b) to pay a claim without prejudice. The Connecticut Supreme Court's 2008 decision in Harpaz v. Laidlaw Transit, Inc., mandates that the trial commissioner must grant preclusion when a respondent fails to comply with C.G.S. §31-294c(b) and does not proffer a timely disclaimer. The respondents, focusing on the word "commence" in C.G.S. §31-294c(b), appeared to assert that once the respondents provide any payment to the claimant following the service of a Form 30C, such a payment tolls the remedy of preclusion. The board disagreed. Harpaz clearly states that the employer loses the right to contest the claim when it does not pay compensation. A respondent enjoys safe harbor from preclusion not by virtue of making a single payment in lieu of filing a disclaimer, but may only preserve its rights if "it timely paid compensation." To "commence" payments, a respondent must make consistent, regular payments to the claimant until a Form 43 or voluntary agreement is issued. Those payments must be calculated consistent with applicable statutes and regulations.