CRB OPINION
CASE NO. 6548 CRB-7-24-7
CLAIM NO. 700195373
COMPENSATION REVIEW BOARD
WORKERS' COMPENSATION COMMISSION
JUNE 13, 2025
JOSEPH D. SIMMONS
CLAIMANT-APPELLEE
v.
FEDERAL EXPRESS
EMPLOYER
and
SEDGWICK CMS, INCORPORATED
INSURER
RESPONDENTS-APPELLANTS
APPEARANCES:
The claimant was represented by Steven H. Cousins, Esq., Steven H. Cousins, L.L.C., 324 Elm Street, Suite 201B, Monroe, CT 06468.
The respondents were represented by Nicholas W. Francis, Esq., Tentindo, Kendall, Canniff & Keefe, L.L.P., 75 Hood Park Drive, Boston, MA 02129.
This Petition for Review from the June 21, 2024 Finding and Award of Jodi Murray Gregg, Administrative Law Judge acting for the Seventh District, was heard January 31, 2025 before a Compensation Review Board panel consisting of Chief Administrative Law Judge Stephen M. Morelli and Administrative Law Judges Peter C. Mlynarczyk and Daniel E. Dilzer.[1]
OPINION
The claimant was examined by another neurosurgeon, Patrick P. Mastroianni, on July 26, 2023. Mastroianni’s examination determined the claimant suffered from right L5 radiculopathy, a recurrent right-sided disc herniation at L4‑5, an annular tear of L4‑5, a bulging disc at L3‑4, chronic disc herniation and retrolistheses at L5‑S1, and chronic lumbar strain. Mastroianni found that all these ailments had been caused by trauma sustained by the claimant while employed by Federal Express, noting discrete injuries sustained in 1998 and 2013, as well as “relentless trauma” associated with “repeated heavy and very heavy lifting.” Findings, ¶ 25, citing Claimant’s Exhibit B.[2] Mastroianni recommended further surgery for the claimant in the form of a lumbar discectomy at L4‑5 with pedicle screw stabilization. Mastroianni followed up on August 29, 2023, by opining the claimant was totally disabled since July 1, 2022.
The claimant testified at the formal hearing that he had been hired by Federal Express in 1993 and had worked for them since that time on a full‑time basis as a courier, which involved lifting packages of up to 150 pounds, as well as bending and extensive sitting. See December 11, 2023 Transcript, pp. 12-13. He testified to prior back injuries at work, first in 1998, when he missed three months of work, as well as in 2013 and 2018. See id., pp. 13-14. He testified that subsequent to those prior injuries he had continued to experience sciatica and back issues up through 2022, but he had not reported them to the employer. See id., pp. 19-20. While he was experiencing back pain in June 2022, he took a vacation to South Carolina and drove twelve hours each way. The claimant testified he thought the sciatica would go away during the vacation, but it did not, even in the absence of any strenuous activity. See id., pp. 20-21. As the pain was getting worse, the claimant called the employer and advised them he could not work. He described the circumstances as follows.
Well, it wasn't a specific injury. It wasn’t, it wasn’t like I fell off of a truck or, you know, broke . . . my leg, so I had continuous sciatic nerve issues. Some days I would be good., some days I wouldn’t.
Findings, ¶ 27o, citing December 11, 2023 Transcript, p. 20.
The claimant testified to being treated after his vacation at WestMed and the Greenwich Hospital emergency department. He testified that he did not know why their records did not reflect that he told them his pain was related to a work injury. See id., p. 25. Prior to presenting at Greenwich Hospital, he stated he was getting out of bed, fell to the ground, and could not get back up without assistance. He did not specifically remember hearing a “pop” in his back at that time, but he may have mentioned that to the treating staff at Greenwich Hospital. He also testified that he fell again two days later and Fiore’s partner referred him back to Greenwich Hospital, where he had surgery on July 15, 2022. See id., p. 27.
The administrative law judge also reviewed the issues concerning the motion to preclude. She noted the claimant filed a form 30C via certified mail which the commission received on October 21, 2022. The postal service attempted to deliver the form 30C to the respondent‑employer on November 9, 2022, but the envelope was returned unopened with the green card attached. The signature on the green card was crossed out and the envelope was stamped “refused return to sender.” The respondents investigated and contended they could not ascertain the identity of who put the signature on the green card and that it was not an agent of the employer.
Based on this record, the administrative law judge concluded that the claimant was a credible witness and that the opinions of Mastroianni were credible and persuasive, specifically as to workplace causation, total disability and the need for additional surgery. She found the other medical records of Greenwich Hospital and Fiore credible and persuasive as related to the claimant’s condition, work capacity and need for surgery. Therefore, she determined the claimant sustained a compensable repetitive trauma injury on or about July 1, 2022. She further determined that the claimant properly served notice of claim to the respondents, but it was refused and returned. Since the claimant had properly served notice in compliance with the statute, she granted his motion to preclude.
The respondents filed a timely motion to correct that sought numerous corrections focusing on the claimant’s alleged failure to notify his employer, as well as allegedly failing to notify various medical providers, about his work injury. They also sought conclusions that the claim should be dismissed because neither the claimant nor Mastroianni were credible witnesses. Additionally, the motion sought findings that the claimant failed to put the respondents on notice because he did not attempt to effectuate service in a different manner after the certified mailing was returned as undelivered. The motion was denied in its entirety and the respondents pursued this appeal. They argued that under the facts herein it was improper to have granted the motion to preclude and the discrepancies in the claimant’s evidence were so significant that it was unreasonable to find he sustained a compensable injury. We are not persuaded by these arguments and affirm the Finding and Award.
On appeal, we generally extend deference to the decisions made by the administrative law judge. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Daniels v. Alander, 268 Conn. 320, 330 (2004), quoting Burton v. Mottolese, 267 Conn. 1, 54 (2003). The Compensation Review Board cannot retry the facts of the case and may only overturn the findings of the administrative law judge if they are without evidentiary support, contrary to the law, or based on unreasonable or impermissible factual inferences. See Kish v. Nursing & Home Care, Inc., 248 Conn. 379, 384 (1999) and Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).
As an initial matter, we would like to address what we believe was a procedural irregularity in the manner the formal hearing was conducted. The claimant had a pending motion to preclude which we believe should have been considered and ruled upon by the trial judge prior to having the claimant testify as to the merits of his claim. Instead, the claimant testified prior to a decision being reached on preclusion, and counsel for the respondent extensively cross‑examined him at the hearing. See December 11, 2023 Transcript, pp. 19‑35. We believe allowing respondents’ counsel to cross‑examine a witness as to the merits of a claim in which the respondents were ultimately precluded from defending is proscribed by precedent in Donahue v. Veridiem, Inc., 291 Conn. 537 (2009). In Donahue, the Supreme Court made clear that a precluded respondent cannot challenge a claimant’s evidence through cross‑examination. Id., 549-53. While that occurred in this case, we believe it is harmless error, see Geraldino v. Oxford Academy of Hair Design, 5840 CRB‑5‑13‑5 (April 17, 2014) and see also Peters v. Corporate Air, Inc., 14 Conn. Workers’ Comp. Rev. Op. 91, 1679 CRB‑5‑93‑3 (May 19, 1995), insofar as the trial judge found the claimant a credible witness and awarded him benefits.
We next turn to whether the administrative law judge could have reasonably ordered preclusion in this case. The respondents argued that evidence presented demonstrated that, although the claimant attempted to serve the notice of claim, the employer never received it. Therefore, they argued that the condition precedent for preclusion under the statute[3] did not occur. They raised a second argument on policy grounds, claiming that this was an instance in which the claimant was “inequitably manufacturing compensability” via preclusion because he did not attempt an alternative method of service. Respondent’s Brief, p. 9. The claimant argued that it was simply a factual question as to whether the notice of claim was received by the respondent and the administrative law judge resolved this in his favor. We agree with the claimant.
The obligation of a respondent to file a disclaimer under our statute is triggered when the notice of claim is “received” by the employer. We note that in a recent case the respondents successfully rebutted the claim that the notice had been received. In Britto v. Bimbo Bakeries, 6397 CRB‑4‑20‑7 (July 2, 2021), the claimant sought to preclude the respondent after a form 30C was sent to the respondent and no disclaimer was issued in response. The respondent‑employer denied ever having received notice of the claim and, therefore, argued they had no reason to file a disclaimer. The administrative law judge was persuaded by this argument and on appeal this tribunal affirmed her decision, for the following reasons.
In this case, the respondents presented testimony from a former manager at the facility, Stephen Costa, who testified as to the procedures for accepting mail at this facility. This would involve ringing a buzzer and having an employee meet a carrier at an exterior door. See October 29, 2019 Transcript, pp. 7‑9. He further testified that it was ‘highly unlikely’ that a postal carrier made multiple efforts to deliver mail to this facility during business hours and was denied entry. Id., pp. 13‑14.
Furthermore, the record before the commissioner in our case indicates that the outside of the envelope which was addressed certified mail to the respondent‑employer was stamped ‘RETURN TO SENDER. UNDELIVERABLE AS ADDRESSED. UNABLE TO FORWARD.’ Claimant’s Exhibit H. While the claimant did present a tracking log purporting to document more than one delivery attempt, this does not definitively answer the question as to whether the postal carrier actually brought this to the proper location at the 328 Selleck Street complex. The evidence before the commissioner documented that the location was a multi‑building facility, only one of which was used by the respondent‑employer. See Claimant’s Exhibits Q, U. The postal service’s marked indication on the envelope ‘UNDELIVERABLE AS ADDRESSED’, in the absence of further credited evidence, suggests that this notice was never presented to a responsible party who refused to accept the letter.
The postal carrier who purported to have attempted the delivery did not testify.
Id.[4]
The Appellate Court affirmed our decision denying preclusion under these facts, see Britto v. Bimbo Foods, Inc., 217 Conn. App. 134 (2022), as it viewed the decision as being based on the factual question as to whether the notice was received by the respondent. “In the present case the commissioner found that the defendant did not receive the form 30C sent by the plaintiff via certified mail on December 12, 2017, instead as the commissioner found the defendant received the form 30C for the first time on January 18, 2018 by way of personal service on its counsel.” Id., 145. Therefore, “[w]e agree with the board’s conclusion that the commissioner’s findings are supported by evidence in the record, including the envelope containing the form 30C that was returned to the plaintiff with a marking reflecting, inter alia, that the envelope was ‘[u]ndeliverable as addressed . . . .’” (Footnote omitted.) Id., 145‑46.
We can clearly distinguish the factual evidence in this case from the facts in Britto. While the envelope in Britto was returned as “undeliverable,” in this case the envelope came back “refused and returned to the sender” with a signature affixed and crossed out on the green card. The administrative law judge in the current case could, therefore, reach a reasonable inference that the form 30C had been delivered to the proper address and that someone at that address decided not to accept the notice. This places the circumstances herein as more similar to Morgan v. Hot Tomato’s, Inc., DIP, 4377 CRB‑3‑01‑3 (January 30, 2002), wherein the trier of fact found “substantial evidence” that the postal service had attempted to obtain the signature of a Hot Tomato’s representative on five occasions, and that the envelope containing the form 30C was returned to the claimant as “unclaimed mail.” Id. The circumstances are also similar to Black v. London & Egazarian Associates, Inc., 30 Conn. App. 295, cert. denied, 225 Conn. 916 (1993), wherein “the undisputed facts demonstrated that a postal worker had delivered a notice of claim sent, via certified mail, by the widow to the employer.” Britto, supra, 147‑48. The individual in the employer’s office in Black “refused to provide a signature, causing the postal worker to leave the notice of claim on a receptionist’s desk in the office.” Britto, supra, 148 quoting Black, 298. In Morgan and Black, the trier of fact found the respondent had been presented with the notice and, for whatever reason, the person at the employers’ premises chose not to sign for the certified letter. Our precedent, therefore, supports the proposition that service upon the employer has occurred in this instance and is clearly distinguishable from the facts in Britto.[5]
The respondents also argued that preclusion should have been denied based on public policy. Citing Williams v. Brightview Nursing & Retirement, 5854 CRB‑6‑13‑6 (June 12, 2014), they argued that the claimant herein was “inequitably manufacturing compensability.” Respondent’s Brief, p. 9. We reject the respondent’s reliance on Williams, as the facts are clearly distinguishable. In Williams, the trier of fact found the respondents had provided medical care immediately after the claimant’s injury and prior to receipt of the notice of claim, thus triggering the “safe harbor” from preclusion. See Adzima v. UAC/Norden Division, 177 Conn. 107 (1979). The respondents in this case did not advance a similar argument that their actions prior to the claimant submitting notice of claim created such a safe harbor. This tribunal’s decision in Williams, supra, therefore, has no relevance to the binding precedent in Black and Morgan, which govern situations where a notice is received and refused by the recipient.
The final argument raised by the respondents is that the medical records presented by the claimant did not establish that his back injury was compensable. We note that, pursuant to precedent since Donahue, it is the claimant’s obligation to establish a prima facia case even after preclusion has been granted. See Cariello v. Home Health Care Services, Inc. 5959 CRB-8-14-9 (June 12, 2018), citing Geraldino v. Oxford Academy of Hair Design, 5968 CRB-5-14-10 (January 20, 2016), appeal withdrawn, A.C. 38881 (March 13, 2018). In this case, the administrative law judge was persuaded by the claimant’s evidence and we must determine if this decision was reasonable, noting the deference accorded to a finder of fact in our forum. Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003).
In the Finding and Award, the administrative law judge found the claimant was a credible and persuasive witness and that Mastroianni’s reports were “thorough and detailed” and “credible and persuasive” that the claimant’s back condition was related to heavy lifting at work. Conclusions, ¶¶ C, E. As we noted earlier, the claimant testified as to the mechanism of his injury and was found to be credible after extensive cross‑examination. As the trier of fact is the arbiter of witness credibility, Burton, supra, at 40, we must defer to her judgment. We have also reviewed Mastroianni’s report of July 26, 2023 (Claimant’s Exhibit B), and it states in unequivocal fashion that “the above diagnoses were caused by repeat trauma that Mr. Simmons sustained on the job in connection with his work duties at FedEx.” Id., p. 3.[6]
We note that Mastroianni is a neurosurgeon who conducted his own physical examination of the claimant. We see no reason to find his opinions less weighty than those opinions from the cardiologist relied upon in LeFevre v. TPC, 6297 CRB-4-18-11 (January 17, 2020), to determine that the claimant’s heart attack was caused by his employment. The administrative law judge could reasonably determine from this record the claimant presented a prima facia case supportive of compensability.
Finally, in light of our analysis, we find that there was no error when the administrative law judge denied the motion to correct. We find it was essentially an attempt to replace the conclusions reached by the administrative law judge with the respondent’s view of the evidence. The administrative law judge was under no obligation to adopt the respondent’s position. See Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010), aff’d, 126 Conn. App. 902 (2011) (per curiam).
There is no error. The June 21, 2024 Finding and Award of Jodi Murray Gregg, Administrative Law Judge is affirmed.
Administrative Law Judges Peter C. Mlynarczyk and Daniel E. Dilzer concur in this opinion.
[1] We note that a motion for extension of time was granted during the pendency of this appeal.
[2] In the Finding and Award, this finding cited Exhibit A and this was inaccurate. This is a harmless scrivener’s error, see Hernandez v. American Truck Rental, 5083 CRB‑7‑06‑4 (April 19, 2007). In this opinion, we have cited the correct exhibit.
[3] General Statutes Section 31‑294c (b) states as follows: “Whenever liability to pay compensation is contested by the employer, he shall file with the administrative law judge, 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 chairperson 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 of 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. An employer shall be entitled, if he prevails, to reimbursement from the claimant of any compensation paid by the employer on and after the date the administrative law judge receives written notice from the employer or his legal representative, in accordance with the form prescribed by the chairperson of the Workers' Compensation Commission, stating that the right to compensation is contested. 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. If an employer has opted to post an address of where notice of a claim for compensation by an employee shall be sent, as described in subsection (a) of this section, the twenty‑eight‑day period set forth in this subsection shall begin on the date when such employer receives written notice of a claim for compensation at such posted address.”
[4] Effective October 21, 2021, the Connecticut legislature directed that the phrase “administrative law judge” be substituted when referencing a workers’ compensation commissioner. See Public Acts 2021, No. 18, § 1.
[5] The respondents focus much of their attention on Findings, ¶ 30 and Conclusion, ¶ J, where they claim not to know the identity of who signed the green card refusing to accept the notice of claim. We note that the respondents made similar arguments in Black v. London & Egazarian Associates, Inc., 30 Conn. App. 295, cert. denied, 225 Conn. 916 (1993), which were rejected, as this tribunal and the Appellate Court found service of notice had been effectuated. See also Mehan v. Stamford, 127 Conn. App. 619, 628, cert. denied, 301 Conn. 911 (2011), affirming Mehan v. Stamford, 5389 CRB‑7‑08‑10 (October 14, 2009).
[6] The respondents argue that the claimant’s narrative and Mastroianni’s opinions were inconsistent with other evidence, particularly Greenwich Hospital medical records, presented on the record. See Respondent’s Brief, pp. 4-8. However, it is the right of a trier of fact to resolve such inconsistences in the evidence and in this case, the administrative law judge resolved them in the claimant’s favor. See Williams v. Bantam Supply Co., 5132 CRB-5-06-9 (August 30, 2007) and Wiggins v. City of Middletown, 5300 CRB-8-07-12 (January 15, 2009).