The Supreme Court heard this case of first impression addressing preclusion and whether “filing” a Form 43 Denial is complete upon mailing or upon receipt. The Supreme Court affirmed the finding of preclusion because the filing was not timely pursuant to §31-294c. Attorney Peter LoVerme from TKCK appeared on behalf of the insurer and argued this case before the Connecticut Supreme Court.
In this case, the respondent mailed Form 43 Denials on 5/29/19 (within the 28-day statutory response window). The Form 43 Denials were received by the WCC on 6/3/19 and by the claimant on 6/6/19. The claimant pursued a motion to preclude arguing the Respondent’s Form 43 denials were not “filed” timely because the receipt dates were outside of the 28-day statutory response window. The workers’ compensation statutory scheme did not define the word ‘‘file.’’ The respondent argued “filing” is deemed to have occurred on the date of mailing. The respondent relied on the consistent harmony between Black’s Law Dictionary’s definition of the
mailbox rule, and the statutory construction and intent of
§31-294c and
§31-321.
The Supreme Court determined the mailbox rule did not apply in this case. The rationale for the decision primarily relied on the Court’s distinction between the word “file” and “send.” The Court differentiated the two words by referencing the legislature’s intent. In particular, the Court wrote:
… the use of the words “send” and “file” in the same provision suggested that the legislature intended for the terms to have different meanings, and, if the legislature had wanted for an employer to meet its statutory requirements by simply mailing its notice of intention to the administrative law judge, it could have used the word “send” rather than the word “file,” the plain meaning of which requires an employer to do more than place the notice in the mail.
The decision from the Supreme Court defined the word “file.” To file a timely Form 43 Denial, the notice must be delivered, not just mailed, to the WCC on or before the 28th day after receipt of the claimant’s Notice of Claim.
The lesson to be learned in this case is “Do not wait!”
Employers, insurers, third-party administrators, and practitioners now must ensure Form 43 Denials are delivered to the WCC within the 28-day response window. The U.S. mail system cannot be used to guarantee timely delivery of Form 43 Denials.
To mitigate the risk of late filing and preclusion, respondents should file Form 43 Denials immediately after receipt of every Notice of Claim.
This decision amplifies the need for the Connecticut Workers’ Compensation Commission to adopt a uniform e-filing system.
Please feel free to reach out to
Attorney Peter LoVerme or any member of our Connecticut team with any questions or issues – we are happy to help!
