Opinion
X04HHDCV064043672S.
11-19-2012
Mary V. RORABACK v. The STANLEY WORKS et al.
UNPUBLISHED OPINION
BRIGHT, J.
I. INTRODUCTION
In this employment matter, the plaintiff, Mary V. Roraback, filed a two-count complaint against her former employer, defendant The Stanley Works (" Stanley"), and Speciality Risk Services, Inc. and/or Speciality Risk Services, LLC (" SRS"), the third-party administrator (" TPA") of Stanley's self-insured workers' compensation policy for alleged violations of Connecticut's Workers' Compensation Act, General Statutes § 31-275 et seq. (" Act"). In count one, the plaintiff has alleged wrongful termination pursuant to General Statutes § 31-290a. In count two, the plaintiff has alleged intentional infliction of emotional distress. SRS has filed a motion for summary judgment arguing that it is entitled to judgment on both counts.
II. BACKGROUND
A. PLAINTIFF'S INJURIES AND TREATMENT
Roraback had been an employee of Stanley Works for over fifteen years. On January 7, 2003, the plaintiff reported to Kathryn Brennan (" Brennan"), the Environmental and Health Safety Coordinator at Stanley, that she was experiencing numbness, tingling and pain in her left hand and upper arm. Stanley sent the plaintiff to its workers' compensation treater who, after examining the plaintiff, prescribed physical therapy and placed the plaintiff on light duty work restrictions. Her treating physician ordered a nerve conduction study which showed that the plaintiff was suffering from carpal tunnel syndrome of her left wrist and elbow. The plaintiff was then referred to a hand surgeon, Dr. Carangelo, who recommended surgery to resolve the problem. All medical procedures requested by the plaintiff's treating physicians for this injury were authorized by Stanley. The surgery was performed on March 4, 2003. Two and a half months after that procedure, the plaintiff was able to return to full duty work. In total, the plaintiff was treated and able to return to work within five months of the date of her injury.
The plaintiff alleges that in November 2003, an altercation occurred between herself and a fellow co-worker. The plaintiff alleges that she had asked Mike Mariano for assistance with the machine she was operating. Mr. Mariano allegedly approached the plaintiff and screamed and yelled at her calling her lazy and incompetent in front of her whole department. The plaintiff left before her day was completed and took a leave of absence from November 2003 through January 2004 claiming the incident caused her emotional distress. She filed a workers' compensation claim for the November 2003 incident. Stanley denied that claim.
On January 22, 2004, the plaintiff filed a third workers' compensation claim alleging injury to her neck, right shoulder, elbow and hand. When the plaintiff reported this injury to Stanley, Brennan emailed Kristin Sabatino (" Sabatino"), the director of human resources, and Tim Chartrand (" Chartrand"), the plaintiff's supervisor, expressing her doubt about the legitimacy of the claim and suggesting that Stanley take an " aggressive approach." The Brennan email of January 22, 2004 reads as follows:
Unbelievable! Mary Roraback is claiming RT hand strain from Carpel Tunnel. She doesn't even do repetitive work and she just got back to work because of her work related " stress." This is another example of an employee who is cheating the workers' compensation system. We have to fix this. I want to address this at the communications meeting. Any thoughts on what to say? I think we need to take an aggressive approach.
In a follow-up email to Sabatino on that same day, Brennan stated, " Kris, just to let you know, I did call the Doctors Treatment Center to give them a heads up. We are going to deny this all the way. I suggest we place surveillance on her also."
On that same day, the plaintiff was seen at the Doctors Treatment Center and diagnosed with epicondylitis, carpal tunnel syndrome of the right elbow and right hand and put on light duty work restrictions. She was also referred to Dr. Spar, an orthopedic specialist.
Over the course of the next few days, Brennan contacted SRS to inform them that Stanley intended to deny this claim because Stanley believed that the plaintiff was attempting to cheat the workers' compensation system. Brennan informed SRS that she believed the claim was fraudulent because the plaintiff did not perform repetitive work. Based on this information, SRS marked the claim with " Fraud Flags" and noted in their file that the employer wants the claim investigated.
Discussions between Brennan and SRS led to the decision to order an independent medical examination (" IME") for the plaintiff, thus an IME was ordered on January 29, 2004. The plaintiff was to be seen by Dr. Kelly for her IME. On February 12, 2004, the plaintiff was seen by Dr. Spar who diagnosed her with painful upper extremity and stated, " I think this is from the type of work she does." On March 3, 2004, the plaintiff was seen by Dr. Kelly whose impression was that the plaintiff had right epicondylitis, right shoulder pain, and probable right carpal tunnel syndrome. Dr. Kelly recommended formal EMG nerve conduction studies of the right extremity and kept her on light duty. A few days later, the plaintiff made a request to see Dr. Carangelo, the surgeon who treated her 2003 injuries. SRS denied this request.
In an April 29, 2004 addendum, Dr. Kelly opined that the plaintiff could not perform her regular job functions until the issues raised in his March report were diagnosed and resolved. He further opined that it was probable that all of her upper extremity issues were compensable based on a review of her job description. In May 2004, Dr. Spar performed a nerve conduction study which showed signs of carpal tunnel syndrome in her wrist. No study was done of the ulnar nerve, thus no diagnosis was provided regarding her elbow. After receiving the reports from the IME, Stanley accepted the plaintiff's claim as compensable.
On September 8, 2004, Dr. Spar referred the plaintiff to Dr. Carangelo for a second opinion and on that same day, Stanley scheduled the plaintiff for a second IME. This IME was to be conducted by Dr. Dugdale. After examining the plaintiff, Dr. Dugdale opined that it was plausible that her right shoulder symptoms could be attributed to her work environment.
In October 2004, the plaintiff was seen by Dr. Carangelo who ordered an EMG and nerve conduction study for the plaintiff's elbow. That request was denied by Stanley. Dr. Carangelo recommended surgery to address the plaintiff's right shoulder problem. This surgery was authorized by Stanley and performed in December 2004. In January 2005, a second surgery was performed by Dr. Carangelo, a surgical right carpal tunnel release. In March 2005, Dr. Carangelo made another request for an EMG of the plaintiff's right elbow and this time the EMG was authorized.
After the EMG was performed, Dr. Carangelo notified SRS that the EMG had revealed that the plaintiff had cubital tunnel syndrome and that the plaintiff would need elbow surgery. Dr. Carangelo scheduled the surgery for May 17, 2005 but Stanley denied Dr. Carangelo's request for this last surgery stating that there was no medical evidence supporting a causal connection between the injury and her employment. Stanley then sent the plaintiff for another IME with Dr. Kelly which did not occur until June 2005. After this IME, Stanley advised Dr. Carangelo that it would authorize him to perform an ulnar neurolysis but not an ulnar nerve transposition. The dispute as to which procedure to perform was reviewed by the workers' compensation commission which eventually ordered Stanley to authorize the ulnar nerve transposition. Dr. Carangelo performed this final surgery on December 23, 2005 and the plaintiff was thereafter given a full duty work release.
B. LEAVE OF ABSENCE AND PLAINTIFF'S TERMINATION
On June 29, 2004, Stanley had a meeting with the plaintiff to discuss her work-related injuries. Sabatino, Brennan, Chartrand and Thomas Lamb were all present at this meeting. The purpose of the meeting was to inform the plaintiff that Stanley would no longer be able to provide her with light duty work and, therefore, they were placing her on a workers' compensation leave of absence. The plaintiff stated that she was told to get better and return to work when she was able to be released to full duty work. She further claimed that no one at the meeting informed her that if she was unable to return to full duty work within a year she would be terminated. Lastly, she stated that no one told her that the one-year clock had started the day Stanley put her on the leave of absence.
The collective bargaining agreement that governed the plaintiff's employment with Stanley provides as follows:
1) A Leave of Absence for illness or disability for a period of up to one (1) year will be granted by the Company upon receipt of medical evidence that the employee is unable to work. Such evidence will be considered the employee's written application for leave. If the employee's absence will continue beyond such one (1) year period, up to an additional one (1) year will be granted upon submission to the Company of a statement from the employee's doctor indicating that the employee will be able to return to work within such additional one (1) year period. In unusual situations, consideration will be given for an extension beyond such additional one (1) year period upon presentation of medical evidence that the employee will be able to return to work.
On May 26, 2005, Sabatino sent a letter to the plaintiff which stated as follows:
You began your medical leave of absence on June 29, 2004. Under Stanley's leave of absence policy, employees are allowed leaves of absence for a period equal to their length of service or one year, whichever is shorter. In your case, your service allowed you to take a leave of absence for up to one year. This leave expires on June 29, 2005. We expect you will return to work full-time by that date, able to perform all of the essential functions of your job, with or without reasonable accommodation. If you do not expect to be able to do so, but feel you can within a reasonable period of that date, you must call me to discuss the situation. If you are unable to return from your leave before it expires, we will consider you to have resigned your employment and will terminate your employment with Stanley effective June 30, 2005.
A letter dated June 10, 2005 was sent by plaintiff's counsel, Harvey L. Levine, to Stanley, in response to its May letter to the plaintiff. In that letter, Levine informed Stanley that he had been retained by the plaintiff to represent her with regards to her January 2004 claim. The letter continues as follows:
In a nut shell, Ms. Roraback is opposed to this action on the part of Stanley for the reason that she is still doctoring from an injury which she received on the job; she has not been rated or received MMI from her physician, further workers' compensation who is in effect Stanley, is actually taking action which a reasonable person could interpret to be intentionally slowing down her ability to return to work ... In summary, Ms. Roraback is inquiring into the availability of disability coverage and she is adamantly opposed to your terminating her before she knows what her physical status is. If she is terminated, then she will take this to be a discriminatory firing.
Stanley responded to Levine's letter on June 23, 2005. In that letter, Sabatino reiterated that, under Stanley's policies, the plaintiff was entitled to a one-year leave of absence and the plaintiff's one-year period was set to expire on June 29, 2005. Sabatino continues that " [t]his leave of absence policy is neutrally applied and non-discriminatory." Sabatino attached a copy of the May 2005 letter to her response and stated, " [t]his letter speaks for itself and accurately summarized the Company's policy on this matter." She concluded by stating, " [i]n any event, because her disability is work-related, workers' compensation is the exclusive remedy for any damages, including lost time wage replacement."
The plaintiff was unable to return to work by June 29, 2005, thus Stanley terminated her employment.
C. ROLE OF SRS
The undisputed facts with respect to the role of SRS are as follows. SRS, as the TPA of Stanley's workers' compensation policy, saw to the administration of all three workers' compensation claims filed by the plaintiff. Any actions taken by SRS with regards to the plaintiff's claims were at the direction and instruction of Stanley. Stanley had final say over whether any of the plaintiff's claims were accepted or denied and whether any IMEs were necessary. All of the plaintiff's work-related medical treatments were paid for by Stanley. There are no allegations that SRS took any actions separate from those they were instructed to take by Stanley.
III. SUMMARY JUDGMENT STANDARD
" In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations and internal quotation marks omitted.) Liberty Mut. Ins. v. Lone Star Indus., Inc., 290 Conn. 767, 787, 967 A.2d 1 (2009). " Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Citation omitted.) Water & Way Properties v. Colt's Mfg. Co., 230 Conn. 660, 664, 646 A.2d 143 (1994). " It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment] ." Home Ins. Co. v. Aetna Life & Casualty, Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995).
IV. DISCUSSION
A. COUNT ONE
SRS argues that it is entitled to summary judgment on the wrongful termination claim because it does not meet the statutory definition of " employer" pursuant to § 31-275(10). It is undisputed that the plaintiff's claims against SRS are premised solely on the theory that SRS, as the TPA for Stanley, was Stanley's agent/alter-ego, and, thus, liable for her wrongful termination pursuant to § 31-290a. Section 31-290a(a) provides, " [n]o 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 or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter." Thus, as to count one, the issue is whether SRS meets the statutory definition of " employer" pursuant to § 31-275(10), thereby subjecting it to § 31-290a(a).
That issue, however, has already been raised by the parties through the plaintiff's motion to strike the special defenses of SRS (# 158) and addressed by the court in its June 23, 2011 memorandum of decision (# 187) (" June 2011 MOD") [ 52 Conn. L. Rptr. 135]. In that decision at p. 10, the court stated as follows: " The plaintiff contends that when the DeOliveira court conferred immunity on an employer's workers' compensation carrier under the exclusionary provision, the court effectively made the similar finding that [a] workers' compensation carrier meets the definition of employer as set forth in § 31-275(10) ...
" [T]his court cannot, by judicial construction, read into legislation provisions that clearly are not contained therein ... In determining legislative intent, in the absence of ambiguity, we look only to what the legislature actually said, not to what it might have meant to say ...
" In DeOliveira, the Supreme Court did not address § 31-275(10). Rather, it considered other provisions of the Act, General Statutes § 31-275 et seq., which appeared to conflict with one another, in order to resolve a question of legislative intent ..." (Citations omitted; internal quotation marks omitted.)
The court continued, at p. 11 as follows: " In reaching its decision in DeOliveira, the court engaged in a policy analysis to resolve the conflict, and stated, ‘ [i]n our view, in order to give a reasonable sphere of operation to the scheme the legislature has prescribed for the [workers' compensation] commission's adjudication of claims of delayed or improperly denied payment, we must read the exclusionary provision so as not to countermand or diminish the force of the provisions setting forth the specific remedies provided to address such conduct.’ Id. at 499.
" In contrast, more recently, in Lopa v. Brinker International, Inc., 296 Conn. 426, 994 A.2d 1265 (2010), in addressing the question of whether the United States Postal Service is an ‘ employer’ for the purposes of the Act, the court looked specifically to the language of § 31-275(10), the Act's definitional section." (Citations omitted, internal quotation marks omitted.) Based on its thorough analysis of the relevant statutes and case law, the court concluded that " [a]n ‘ employer, ’ as defined in § 31-275(10), does not include an employer's third party workmen's compensation administrator as its agent." June 2011 MOD, p. 16-17. Thus, SRS does not meet the statutory definition of an ‘ employer’ for the purposes of § 31-275(10), and cannot be liable for the alleged wrongful discharge of the plaintiff.
The plaintiff raises no new facts or allegations on this issue in response to the summary judgment motion filed by SRS. Instead, she argues that the court erred in its June 2011 MOD when it concluded that SRS does not meet the statutory definition of " employer" pursuant to § 31-275(10). Specifically, the plaintiff claims that " the trial court's previous opinion in this matter is devoid of any legal analysis regarding our Supreme Court's holding in Doe v. Yale University that only defendants who meet the statutory definition of employer may seek shelter under the exclusivity provision of the act. The trial court thus failed to reconcile the legal standard for receiving the protections of the exclusivity provision under the Workers' Compensation Act with its ultimate holding." See plaintiff's objection to SRS motion for summary judgment (# 230), p. 12. The plaintiff, however, fails to explain how the court's analysis on pages 14-16 of its June 2011 MOD does not address the very shortcoming she claims is present in the decision. Therein the court reconciled its interpretation of § 31-275(10) with the Supreme Court's opinion in Doe v. Yale University. As such, the court will not revisit the issue again here.
" Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." Johnson v. Atkinson, 283 Conn. 243, 249, 926 A.2d 656 (2007), overruled in part on other grounds by Jaiguay v. Vasquez, 287 Conn. 323, 348, 948 A.2d 955 (2008). The plaintiff has failed to present a " new or overriding circumstance" in support of her argument that the court erred in its earlier conclusion that SRS does not meet the definition of " employer" under the Act. Rather, she relies on the same arguments she raised in support of her motion to strike SRS's special defenses, namely that Doe v. Yale University and DeOliveria v. Liberty Mutual Insurance Co. and their progeny support her argument that SRS meets the definition of " employer" pursuant to § 31-275(10).
The only new argument presented by the plaintiff is that the case of Retting v. Town of Woodbridge, 304 Conn. 462 (2012), leads to a different result. In Retting, the plaintiff filed suit against several towns for injuries she sustained when, during the course of her employment as an animal control officer for the municipal district covering those towns, she slipped and fell.
By way of background, the defendants had originally entered into an agreement to establish a regional dog pound to serve the animal control needs of several towns. Under that agreement, the state department of agriculture provided the animal control officer for the region. In 1992, the state notified the defendants that it no longer would provide an animal control officer for the region so the defendants dissolved the regional dog pound and converted it to a municipal district established pursuant to General Statutes § 7-330. All of the participating towns entered into a municipal animal control district agreement that provided for the governance, staffing and finances of the district. Specifically, the agreement provided that the district was to be managed by a board consisting of two members from each participating town who are appointed by the board of selectmen, the town council or board of aldermen, as applicable. The agreement also provided that each participating town was to pay its proportionate share of the cost for operating the district. In 2001, the plaintiff was hired by the district to act as its animal control officer. The district paid her salary and benefits out of its budget, including her workers' compensation insurance.
The town defendants filed a motion for summary judgment on several grounds including the exclusivity provision of the Act. The plaintiff argued that the exclusivity provision did not apply to her claims because she was employed by the district, not the towns, and the town defendants lacked the requisite control over her employment to qualify as an employer under the Act. The trial court disagreed and cited to Wallingford v. Board of Education, 152 Conn. 568, 210 A.2d 446 (1965) and Mase v. Meriden, 164 Conn. 65, 66-67, 316 A.2d 754, in support of its conclusion that the plaintiff is an employee of the various towns served by the municipal animal control district. In Wallingford, supra, 152 Conn. at 573, our Supreme Court concluded that members of a local board of education are deemed officers of the municipality they serve and the employees that work for the board of education are employees of the town. In Mase, supra, 164 Conn. at 66-67, our Supreme Court, relying on its earlier ruling in Wallingford, had concluded that, for purposes of applying the exclusivity provisions of the Act, an employee of a local board of education was an employee of the town served by the board.
Our Supreme Court agreed with the trial court's reasoning and reliance on Wallingford and Mase. According to the Court, " [w]e can perceive of no reason why the same reasoning should not apply to the present case. Just as local boards of education exercise their authority on behalf of the municipalities they serve, so, too, do the members of the district board exercise their authority on behalf of the defendant towns." Retting v. Town of Woodbridge, supra, 304 Conn. at 478. Based on that rationale, it concluded that the animal control officer was an employee of the participating towns, thus her claim against the towns was barred by the exclusivity provision of the Act.
The facts of Retting are completely inapposite to those here. In Retting, the plaintiff sought to hold liable those towns who had control over the property on which she slipped and fell. She, in essence, was trying to go " upstream" from her employer, the district. Because those upstream defendants had ultimate control over her job they were deemed to be her employers. Here, the plaintiff is seeking to go " downstream" from her actual employer to Stanley's agent/administrator, SRS. The court is unaware of any case that has held that an agent, carrying out its principal's instructions can be considered an " employer" under the act. Unlike the defendants in Retting, Mase and Wallingford, here there is no dispute that SRS did not have ultimate control over the plaintiff's employment. That control belonged to her employer, Stanley. For this reason, the court sees no reason to depart from its earlier analysis of this issue. SRS and Stanley are independent companies linked only by a contractual relationship. As this court has previously found, the plaintiff performed no work for SRS, nor does SRS have control over her employment at Stanley.
Under § 31-290a, a wrongful termination claim can only be filed against an employer, as defined in the Act. No genuine issues of material facts exist with respect to the role of SRS in this matter. As this court has previously found, SRS does not meet the statutory definition of an employer pursuant to § 31-275(10). This conclusion is consistent with that in Trujillo v. Connecticut Department of Public Safety, Superior Court, judicial district of New Britain at New Britain, Docket No. HHB CV 07 5003870 (November 19, 2007, Pittman J.) (44 Conn. L. Rptr. 490) (court found that " employer" as defined in § 31-290a does not include claims adjuster retained by employer) and Castelot-Cascone v. Bridgeport Hospital, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 05 4007828 (October 18, 2005, Doherty, J.) (court struck § 31-290a claim against employer's agent). As such, the plaintiff's claim against SRS in count one is legally insufficient as a matter of law and judgment shall enter in favor of SRS.
B. COUNT TWO
In count two, the plaintiff has alleged intentional infliction of emotional distress due to the dilatory treatment of her January 2004 injury. SRS argues it is entitled to summary judgment because there are no allegations of wrongdoing by SRS that would support such a claim. Additionally, SRS argues that the second claim is barred by the exclusive remedy provision of the Workers' Compensation Act.
The elements a plaintiff must prove in order to establish a claim for intentional infliction of emotional distress are well established. The four necessary elements are: " (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe ... Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine ... Only where reasonable minds disagree does it become an issue for the jury." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). " [I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint ... set forth behaviors that a reasonable fact finder could find to be extreme or outrageous." (Internal quotation marks omitted.) Gillians v. Vivanco-Small, 128 Conn.App. 207, 211, 15 A.3d 1200, cert. denied, 301 Conn. 933, 23 A.3d 726 (2011). " Liability [for intentional infliction of emotional distress] has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!" (Internal quotation marks omitted.) Morrissey v. Yale University, 268 Conn. 426, 428, 844 A.2d 853 (2004).
SRS argues that count two of the complaint is facially insufficient as the only allegations of wrongdoing against it arise out of its alleged role as Stanley's agent in administering the workers' compensation program. For example, the plaintiff alleges that " Stanley instructed SRS to deny the workers' compensation claim 100%. SRS obliged." See plaintiff's objection (# 230) p. 24. She continues as follows, " the plaintiff has specifically alleged in her complaint ... that SRS, the agent and third party workers' compensation administrator of Stanley, followed the directives and or orders of Stanley ..." Id.
The plaintiff argues that Connecticut courts have held that an employer's intentional exacerbation of an employee's pre-existing medical condition could constitute extreme or outrageous conduct. See Redding v. Liberty Bank, Superior Court, judicial district of New London at New London, docket no. 531691 (May 22, 1995, Hendel, J.); Nguyen v. Newberry Industries, Inc., Superior Court, judicial district of Hartford, docket no. CV 97 0571319 (November 14, 1997, Hale, J.). The plaintiff fails, however, to address the defendant's argument that count two fails to allege any such conduct by SRS. Specifically, she fails to explain what actions were taken by SRS separate and independent of those they were instructed to take by Stanley. The plaintiff alleges that SRS acted at the behest of Stanley. There are no allegations that SRS took any actions independent of or above and beyond Stanley's instructions to it.
More importantly, the plaintiff fails to put forth any evidence to show that whatever actions SRS allegedly took rises to the level of " egregious conduct" to preempt the exclusivity provision of the Act. In DeOliveira, the Connecticut Supreme Court held that the exclusivity provision of the Act applies to claims against an insurer for bad faith processing of workers' compensation claims. As this court has already explained in its June 2011 MOD, at p. 11, " In reaching its decision in DeOliveira, the court engaged in a policy analysis to resolve the conflict, and stated, ‘ [i]n our view, in order to give a reasonable sphere of operation to the scheme the legislature has prescribed for the [workers' compensation] commission's adjudication of claims of delayed or improperly denied payment, we must read the exclusionary provision so as not to countermand or diminish the force of the provisions setting forth the specific remedies provided to address such conduct.’ [ DeOliveria v. Liberty Mutual Insurance Co., supra, 273 Conn. at 499.]"
The DeOliveira Court did recognize a limited exception to the exclusivity provision of the Act and explained as follows: " We recognize that there could be an instance in which an insurer's conduct related to the processing of a claim, separate and apart from nonpayment, might be so egregious that the insurer no longer could be deemed to be acting as an agent of the employer and, thus, a claim arising from such conduct would not fall within the scope of the act." DeOliveira v. Liberty Mutual Insurance Co., supra, 273 Conn. at 507.
Two cases are cited by DeOliveira as examples of such ‘ egregious conduct’: " Unruh v. Truck Ins. Exchange, 7 Cal.3d 616, 620-21, 498 P.2d 1063, 102 Cal.Rptr. 815 (1972) (insurer's agent misrepresented identity to claimant, caused her to become emotionally involved with him and induced her to engage in unusual activities beyond her normal physical capabilities while another person filmed her, resulting in aggravations of her physical injury and physical and mental breakdown requiring hospitalization upon claimant discovering deceit); Young v. Hartford Accident & Indemnity Co., 303 Md. 182, 193, 492 A.2d 1270 (1985) (plaintiff who suffered emotional trauma after being assaulted at work alleged that carrier, in attempt to reduce its monetary exposure, insisted on psychiatric examination with deliberate intent that plaintiff either commit suicide or drop her claim, and plaintiff thereafter attempted suicide)." Id. As this court has already stated, " [i]n describing the exception for egregious conduct, the DeOliveira court did not refer to § 31-290a as a means for redressing such egregious conduct." June 2011 MOD at p. 14.
Here, the plaintiff has neither alleged, nor put forth any evidence of egregious conduct by SRS that would fall within the limited exception to the exclusivity provisions of the Act recognized by the Court in DeOliveira. All the allegations against SRS relate directly to their role as the administrator of Stanley's workers' compensation policy. Thus, the plaintiff's claim in count two falls within the scope of the exclusivity provision of the Act. As such, summary judgment shall enter in favor of SRS as to count two.
V. CONCLUSION
For all of the above stated reasons, the court concludes that SRS does not meet the definition of employer pursuant to § 31-275(10) thus summary judgment shall enter in favor of SRS as to count one. Additionally, the court concludes that the plaintiff has failed to allege or show any wrongdoing by SRS separate and distinct from their actions taken at the behest of Stanley as their workers' compensation administrator as part of the claim review process. As such, summary judgment shall enter in favor of SRS as to count two.