JOHN M. WIBLYI, JR.
MCDONALD'S CORPORATION ET AL.
April 6, 2016
from Workers' Compensation Review Board.
Jennifer B. Levine, with whom was Harvey L. Levine, for the
B. Cantarella, for the appellees (defendants).
DiPentima, C. J., and Lavine and Mullins, Js.
plaintiff, John M. Wiblyi, Jr., appeals from the decision of
the Workers' Compensation Review Board
(board) remanding, in part, and ordering the
Workers' Compensation Commissioner (commissioner) to
conduct further proceedings on the plaintiff's motion to
preclude the form 43 disclaimer filed by the defendant
McDonald's Corporation. We conclude that the board
improperly remanded the matter with direction that the
commissioner, essentially, reconsider his findings on the
ground that there were ‘‘ambiguities in the
record . . . .''
begin with the underlying facts as found by the commissioner.
After hearing the evidence presented on the plaintiff's
motion to preclude, the commissioner issued the following
‘‘1. This matter has been the subject of many
hearings, including a [Workers' Compensation Review
Board] appeal that affirmed a bifurcation issue in regards to
the motion to preclude issue before the undersigned.
‘‘2. In regards to this motion to preclude issue,
the [plaintiff], citing case law, contends [that] the
[defendant] . . . should be precluded from contesting the
liability of this claim and seeks an award of benefits.
‘‘3. The [defendant] . . . contends the motion to
preclude should be denied based on several grounds,
particularly laches and prejudice, and the liability of this
matter should be determined on the merits.
‘‘4. The [plaintiff] properly filed a timely
notice of claim on [June 28, 2000] for a [September 8, 1999]
‘‘5. The [defendant] . . . did not file a form 43
denial within twenty-eight days of receipt of the form
‘‘6. The claim was dormant for many years. Many
of the original handlers of the claim for the [defendant] are
no longer available and some documents no longer exist.
‘‘7. Testimony from both sides was heard, as well
as oral argument. Exhibits A through F, and one through four,
were entered into the record.
‘‘WHEREFORE, BASED ON ALL THE EVIDENCE, I HEREBY
. . . CONCLUDE THAT:
‘‘8. Based on the totality of the circumstances,
I hereby deny the [plaintiff's] motion to preclude. I am
persuaded by the [defendant's] position on this issue,
particularly as to the laches and prejudice claim, as this
motion to preclude was filed eleven years after the filing of
the [September 8, 1999] injury claim. See Kalinowski
v. Meriden, [No. 5028, CRB-8-05-11 (January 24,
2007)]. See also prejudice section in General Statutes §
31-294.The Harpaz/Donahue line
of cases do not apply, as this may now constitute an
exception. [See 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).]
‘‘9. This matter shall now proceed on the merits.
‘‘10. This matter shall remain open subject to
future hearings at the request of the parties ...