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Wiblyi v. Mcdonald'S Corp.

Court of Appeals of Connecticut

September 6, 2016

JOHN M. WIBLYI, JR.
v.
MCDONALD'S CORPORATION ET AL.

          Argued April 6, 2016

         Appeal from Workers' Compensation Review Board.

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

          John B. Cantarella, for the appellees (defendants).

          DiPentima, C. J., and Lavine and Mullins, Js.

          OPINION

          MULLINS, J.

         The plaintiff, John M. Wiblyi, Jr., appeals from the decision of the Workers' Compensation Review Board (board)[1] 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[2] filed by the defendant McDonald's Corporation.[3] 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 . . . .''

         We 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 written decision:

‘‘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]
‘‘4. The [plaintiff] properly filed a timely notice of claim on [June 28, 2000] for a [September 8, 1999] injury.
‘‘5. The [defendant] . . . did not file a form 43 denial within twenty-eight days of receipt of the form 30C.[5]
‘‘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.[6]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 ...

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