Opinion
No. CV 07-5002619 S
January 21, 2010
MEMORANDUM OF DECISION
This is a decision on a motion to strike, dated March 27, 2009, filed by the defendant Hartford Hospital/Clinical Laboratory Partners. The defendant claims the relief requested by the plaintiff, Elsa Rodriguez, in her cross complaint are barred by the exclusivity provisions of the Workers' Compensation Act, C.G.S. § 31-275, et seq.
This matter was commenced by the plaintiff August 28, 2007. By amended complaint dated December 12, 2007, the plaintiff, Elsa Rodriguez, brought suit against the defendant, Mid-State Medical Center, for negligence. In the sole count of her amended complaint, Rodriguez alleges that on February 21, 2005, she was a phlebotomist employed by Clinical Laboratory Partners, a sub-contractor of Mid-State Medical Center. Rodriguez alleges that while walking towards the hospital she slipped and fell on ice as a result of Mid-State Medical Center's negligent maintenance of the premises. Mid-State Medical Center filed its answer and two special defenses to Rodriguez's amended complaint on April 17, 2008.
Hartford Hospital/Clinical Laboratory Partners (CLP) filed an intervening complaint on November 21, 2007. On April 24, 2008, Rodriguez filed a cross complaint against CLP, entitled "cross-complaint against co-plaintiff Hartford Hospital/Clinical Laboratory Partners."
Rodriguez's cross complaint alleges the following relevant facts. "Plaintiff reported her work-related injury to her employer and applied for workman's compensation benefits. One Sheila McKinley, agent of the co-plaintiff, is the Human Relations Manager for Clinical Laboratory Partners. Ms. McKinley . . . had the responsibility of approving or denying treatment for Plaintiff regarding her workman's compensation case . . . Ms. McKinley, in direct retaliation for Plaintiff's seeking treatment and filing her workman's compensation claim, denied and at times, refused to approve Plaintiff's MRI and other needed treatment for almost one entire year, delaying Plaintiff's medical treatment needlessly causing her further need for surgery . . . Ms. McKinley delayed approval for the Plaintiff's required surgery . . . directly retaliating for Plaintiff's filing of said workman's compensation claim . . . Once again, Sheila McKinley, in direct retaliation for Plaintiff's filing said workman's compensation claim, intentionally refused to approve the therapy for over three months, knowing that the doctor had specifically ordered therapy . . . Plaintiff alleges that the coplaintiff, by its agent, Sheila McKinley, has acted with a reckless disregard for the Plaintiff's immediate medical needs and well-being, by specifically denying or delaying approval of treatment for Plaintiff, and by refusing to pay her medical bills in a timely fashion, all in direct retaliation for Plaintiff's filing her workman's compensation claim; Plaintiff alleges this claim pursuant C.G.S. Section 31-290a . . ."
On March 27, 2009, CLP filed a motion to strike the cross claim asserted by Rodriguez and a memorandum in support thereof. Rodriguez filed an objection to the motion and a supporting memorandum on May 21, 2009. CLP filed a reply in support of its motion to strike on August 28, 2009. The matter was heard at short calendar on December 14, 2009.
I.
Practice Book § 10-39 provides in relevant part: "(a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any . . . cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." In ruling on a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).
"A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . ." (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000). "Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Citation omitted; internal quotation marks omitted.) Commissioner of Labor v. C.J. M. Services, Inc., 268 Conn. 283, 292-93, 842 A.2d 1124 (2004). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
II.
In CLP's memorandum of law in support of the motion to strike, it argues that the allegations of the cross complaint should be stricken because the cross complaint "fails to state a claim upon which relief can be granted because all of the claims asserted against CLP are barred by the exclusivity provision of the Workers' Compensation Act, Conn. Gen. Stat. § 31-275 et seq." (Emphasis in original.) Specifically, CLP argues that the Workers' Compensation Act provides an exclusive administrative remedy for an employee suffering an injury arising out of her work, which includes "injuries attributable to the employer's bad faith administration of the employee's workers' compensation claims." As a result of providing a remedy for that type of injury, CLP argues, the legislature has evinced its intention to bar a tort action for such. Accordingly, CLP argues that the cross complaint should be struck in its entirety because all claims against it are for injuries that arose out of and in the course of the workers' compensation claims process, falling within the exclusivity provision of the Workers' Compensation Act.
In Rodriguez's objection to the motion to strike, she argues that her cross complaint is valid because she alleges a statutory cause of action under General Statutes § 31-290a sounding in discrimination. Specifically, Rodriguez argues that "[t]he Connecticut General Statutes [§§ 31-290a(a) and (b)] allow an exception to the exclusivity provisions," and that she has properly alleged in her cross complaint such discrimination resulting from the filing of her workers' compensation claim which is properly before this court in a civil action.
In CLP's reply memorandum in support of the motion to strike, it argues that this court must "look to the nature of the relief sought to determine the character of the action, and not rely on the characterization of the parties." CLP argues that "[i]t is clear that the claims against CLP are for pain and suffering allegedly arising from the bad faith administration of the plaintiff's workers' compensation claim. They are not claims for the alleged discrimination against the plaintiff in the terms and conditions of her employment, or for lost back pay and benefits, or for emotional distress caused by being wrongfully discharged for filing a workers' compensation claim."
"Connecticut's Workers' Compensation Act (act), General Statutes § 31-275 et seq., is the exclusive remedy for injuries sustained by an employee arising out of and in the course of his employment . . . General Statutes § 31-284(a). Under the act's strict liability provisions, workers are compensated without regard to fault. In return for a relatively low burden of proof and expeditious recovery, employees relinquish their right to any common-law tort claim for their injuries . . . Generally, then, all rights and claims between employers and employees, or their representatives or dependents, arising out of personal injury or death sustained in the course of employment are abolished as a result of the act's exclusivity bar." (Citation omitted; internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 251, 926 A.2d 656 (2007), overruled on other grounds by Jaiguay v. Vasquez, 287 Conn. 323, 948 A.2d 955 (2008).
"There is an exception, however, to the exclusivity provision of the workers' compensation statute. That one exception exists when the intentional tort of an employer injures an employee or when the employer has engaged in wilful or serious misconduct. The exception gives an employee a cause of action in addition to the remedies provided by the act . . . The employer must have engaged in intentional misconduct, as that has been defined through our case law . . . directed against its employee . . . Anything short of genuine intentional injury sustained by the employee and caused by the employer is compensable under the act . . . The exception does not include accidental injuries caused by gross, wanton, wilful, deliberate, intentional, reckless, culpable or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury . . ." (Citation omitted; emphasis in original.) Sorban v. Sterling Engineering Corp., 79 Conn.App. 444, 449, 830 A.2d 372, cert. denied, 266 Conn. 925, 835 A.2d 473 (2003).
Our Supreme Court has described this exception to the exclusivity provision as existing when "a plaintiff employee [can] establish an intentional tort claim . . . by proving either that the employer actually intended to injure the plaintiff (actual intent standard) or that the employer intentionally created a dangerous condition that made the plaintiff's injuries substantially certain to occur (substantial certainty standard)." Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 257-58, 698 A.2d 838 (1997). "Although it is less demanding than the actual intent standard, the substantial certainty standard is, nonetheless, an intentional tort claim requiring an appropriate showing of intent to injure on the part of the defendant . . . Specifically, the substantial certainty standard requires that the plaintiff establish that the employer intentionally acted in such a way that the resulting injury to the employee was substantially certain to result from the employer's conduct . . . To satisfy the substantial certainty standard, a plaintiff must show more than that [a] defendant exhibited a lackadaisical or even cavalier attitude toward worker safety . . . Rather, a plaintiff must demonstrate that his employer believed that its conduct was substantially certain to cause the employee harm." (Citations omitted; internal quotation marks omitted; emphasis in original.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 118, 889 A.2d 810 (2006).
General Statutes § 31-290a provides in relevant part: "(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits . . . (b) Any employee who is so discharged or discriminated against may either: (1) Bring a civil action . . . for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits . . . or (2) file a complaint with the chairman of the Workers' Compensation Commission alleging violation of the provisions of subsection (a) of this section . . ."
CLP cites to DeOliveira v. Liberty Mutual Ins. Co., 273 Conn. 487, 870 A.2d 1066 (2005), which involved an insurer's delay in the claim process, for the proposition that Rodriguez is barred from bringing a civil action for injuries associated with an employer's "bad faith administration" of the employee's workers' compensation claim, even when such is intentional.
In DeOliveira, the Supreme Court noted that "[t]he legislature . . . has conferred jurisdiction upon the commission to adjudicate claims related to untimely payment of benefits and has developed a scheme under which remedies may be provided . . . Specifically, the commissioners have the authority to hear an employee's claim that, `through the fault or neglect of an employer or insurer, the adjustment or payment of compensation due . . . [has been] unduly delayed' and to assess a civil penalty of up to $500 for each case of delay." (Citations omitted.) Id., 496-97. "By providing remedies for [delayed adjudication of workers' compensation claims or improperly denied claims], the legislature evinced its intention to bar a tort action for the same conduct proscribed and penalized under the act." Id., 499. "Indeed, construing the act to permit a tort action for an injury for which a remedial process is provided under the act would invite the indefinite prolonging of litigation and risk double recoveries and inconsistent findings of fact, a result which the legislature, in enacting a system of compensation in place of common law remedies, certainly wished to avoid." (Internal quotation marks omitted.) Id., 500.
The DeOliveira court surmised that "[o]ur conclusion that Connecticut does not recognize a cause of action for bad faith processing of a workers' compensation claim, and our rationale in reaching that conclusion, is in accord with the majority of courts to consider this issue." Id., 501.
"With respect to the intent element, this court previously has recognized a narrow exception to the exclusivity provision for intentional torts . . . That exception was grounded, however, in the `accidental' injury language of the act; see General Statutes § 31-275(1); and the fact that such conduct falls well outside the terms of the bargain struck under the act." (Citation omitted.) Id., 506. "[T]he `fault or neglect' language in the provisions addressing improperly delayed or denied payments; General Statutes §§ 31-288(b) and 31-300; is broad enough to encompass the bad faith processing of a workers' compensation claim . . . Indeed, the presence of penalties in the act reflects the legislature's cognizance of wrongful, not merely negligent, conduct." (Citations omitted; emphasis added.) Id., 506-07.
In Yuille v. Bridgeport Hospital, 89 Conn.App. 705, 707, 874 A.2d 844 (2005), the plaintiff "alleged that the defendant . . . intentionally and in breach of good faith, had caused her to suffer emotional distress by unreasonably delaying payment of workers' compensation benefits to which she was entitled. In response, the defendant moved to strike the complaint on a number of grounds including the exclusivity provision of the act." The Appellate Court, citing to DeOliveira v. Liberty Mutual Ins. Co., supra, 273 Conn. 487, upheld the trial court's decision to strike the complaint, stating that the act's provision of remedies for injuries caused by unwarranted delay in the receipt of workers' compensation payments evinced the legislature's intention to bar tort actions for such. Id., 708. The court also noted that the defendant in DeOliveira was the insurer, while the defendant in Yuille was the employer itself; this, however, "is a distinction without a difference." Id.
In the present case, Rodriguez alleges in her cross complaint that CLP, "in direct retaliation for Plaintiff's seeking treatment and filing her workman's compensation claim," denied or refused to approve medically necessary treatment. Rodriguez further alleges that as a result of this "direct retaliation" in delaying her claims for medical treatment, she was caused further pain and suffering from her injuries. Rodriguez finally alleges in paragraph thirteen of the cross complaint that she brings her claim pursuant to § 31-290a; Rodriguez does not, however, specifically allege discrimination in her cross complaint.
Rodriguez's cross complaint alleges injuries sustained by her "arising out of the course of her employment" in that she alleges further pain and suffering resulting from delayed workers' compensation claims approval by her employer done in retaliation for her filing the original workers' compensation claims. General Statutes § 31-284(a). The relevant statutory provisions of the Workers' Compensation Act are broad enough to cover the allegations of Rodriguez's cross complaint. Even if, as Rodriguez argues in her objection to the motion to strike, her cross complaint is brought for discrimination pursuant to § 31-290a, the allegations in the cross complaint do not support a prima facie case of discrimination in employment practices and do not relate to "the reinstatement of [her] previous job, payment of back wages [or] reestablishment of employee benefits," which is the discrimination that statute focuses on. General Statutes § 31-290a(b); see Board of Education v. Commission on Human Rights Opportunities, 176 Conn. 533, 537, 409 A.2d 1013 (1979). The alleged "direct retaliation" by CLP amounts to a claim for bad faith administration of Rodriguez's workers' compensation claims, where the retaliation lies not in discrimination as envisioned in § 31-290a, but rather in the delayed or denied approval of medical treatment, as alleged in the cross complaint. As such, Rodriguez's cross complaint does not sufficiently allege a claim for discrimination under § 31-290a. Therefore, CLP's motion to strike the cross complaint is granted.