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Lee v. Bridgeport Housing Authority

CASE NO. 1416 CRB-4-92-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 27, 1994

ALBERT LEE

CLAIMANT-APPELLEE

CROSS-APPELLANT

v.

BRIDGEPORT HOUSING AUTHORITY

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLANTS

CROSS-APPELLEES

and

CNA INSURANCE COMPANY

INSURER

and

WESTERN EMPLOYERS

INSURER

RESPONDENTS-APPELLEES

CROSS-APPELLEES

APPEARANCES:

The claimant was represented by Richard McCarthy, Esq., 140 Sherman Street, Fairfield, CT 06430.

The respondents-appellants, Bridgeport Housing Authority and Hartford Insurance Group, were represented by Richard Aiken, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

The respondent-appellee, Western Employers, was represented by Michael Tierney, Esq., Cotter, Cotter & Sohon, P.O. Box 5660, Bayview Station, Bridgeport, CT 06610 who filed a brief but did not appear at oral argument.

The respondent-appellee, CNA Insurance Company was represented by Kevin Blake, Esq., Law Offices of Grant H. Miller, Jr., 29 South Main Street, Suite 310N, West Hartford, CT 06107-2445 who filed a brief but did not appear at oral argument.

This Petition for Review from the April 27, 1992 Finding and Award of the Commissioner for the Fourth District was heard March 26, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The claimant has petitioned for review from the Fourth District Commissioner’s April 27, 1992 Finding and Award which ordered payment of temporary total disability benefits for the period April 4 to August 1, 1989. The claimant challenges the trial commissioner’s denial of temporary total benefits from August 2, 1989 to January 29, 1990. We affirm the trial commissioner.1

The claimant argues that he is entitled to temporary total disability benefits through January 29, 1990, the date he returned to work, notwithstanding the fact that no medical evidence was offered to show that he was totally disabled for any period of time subsequent to August 1, 1989. The claimant contends that the respondents accepted his claim and that their failure to file the required Form 36 in order to terminate his entitlement to temporary total disability benefits prevented the cessation of benefits until he returned to work. See Holevinski v. State of Connecticut, 9 Conn. Workers’ Comp. Rev. Op. 215, 988 CRD-5-90-3 (1991); Muir v. Trailways of New England, 4 Conn. Workers’ Comp. Rev. Op. 120, 419 CRD-6-85 (1987); Platt v. UTC/Pratt & Whitney Aircraft Div., 3 Conn. Workers’ Comp. Rev. Op. 3, 164 CRD-6-82 (1985). We do not agree.

There was no written voluntary agreement in this case. The claimant, however, urges us to give effect to the mandate set forth in Administrative Regs. Sec. 31-296-1 requiring voluntary agreements in undisputed cases. The claimant thus argues because this is a case “concerning which there is no dispute that the claimant suffered an accident and injury arising out of and in the course of his employment causing either temporary partial or temporary total disability beyond the three-day waiting period”; Administrative Reg. Sec. 31-296-1; the respondents should have issued a voluntary agreement and they should be held to the Form 36 procedure in order to terminate temporary total disability benefits as if they had properly issued a voluntary agreement.

The trial commissioner, however, found that the respondents disputed liability. While the major dispute here centered around which insurer was obligated to pay this claim which alleged a relapse or recurrence of prior injuries but was eventually pursued as a repetitive trauma claim, such a dispute prevented the claim from falling within the requirements of Sec. 31-296-1. This finding of a disputed claim, challenged by the claimant in a motion to correct and again on appeal, is supported by the evidence and case history before the commissioner and therefore it must stand. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Additionally, we note that Sec. 31-296-1 itself provides for an enforcement/penalty mechanism in cases of non-compliance, strongly suggesting that the equitable relief sought by the claimant of requiring the respondent to file a Form 36 is not available where a voluntary agreement has not issued notwithstanding the lack of a dispute. See, Hoard v. Sears Roebuck & Co., Inc., 122 Conn. 185, 192-93 (1936); Coollick v. Windham, 7 Conn. App. 142, 147-148 (1986); see also Richardson v. H.B. Sanson, Inc., 6 Conn. Workers’ Comp. Rev. Op. 107, 590 CRD-1-87 (1989) (Commissioner lacks authority to force party to enter voluntary agreement).

The claimant’s other basis for contending that the respondents accepted compensability in this case and were therefore required to follow Form 36 procedure in terminating benefits, is rooted in Administrative Reg. Sec. 31-296-2. That provision allows payments to be made without prejudice while an employer or insurer investigates its liability. Section 31-296-2, however, only permits such payments for not more than six weeks. In this case, after a total of six weeks of compensation was advanced without prejudice by the three respondent-insurers, respondent Hartford Insurance paid the claimant an additional ten weeks of temporary total benefits without any notation that the payment was without prejudice. The claimant argues that this payment mandates the conclusion that the insurer had accepted compensability of the case. We disagree.

Section 31-296-2 provides that after six weeks of compensation is advanced without prejudice, the insurer shall either offer a voluntary agreement or promptly request an informal hearing. The respondents did so request an informal hearing. Furthermore, the additional monies were not advanced because the claim had been accepted but rather because the trial commissioner “recommended that a further advance payment be made and directed his request to the Hartford Insurance Group.” Finding and Award, paragraph 11. To hold that a respondent who has issued a notice contesting liability and who continues to contest a claim in good faith cannot advance compensation payments at the request of the commissioner without thereby accepting the claim would not serve the purposes of the Workers’ Compensation Act. A claimant is not without remedy where a claim is being disputed unreasonably. We therefore reject the claimant’s proposed use of Sec. 31-296-2 under the circumstances of this case and in light of the commissioner’s findings regarding the compensation paid to the claimant prior to the Finding and Award.

In his brief, the claimant also states that he “seeks interest and a reasonable attorney’s fee” but offers no argument in support of this claim. Claims mentioned but not adequately briefed are deemed abandoned and will not be reviewed. State v. Ramsundar, 204 Conn. 4, 16, cert. denied, 484 U.S. 955 (1987); Corsino v. Telesca, 32 Conn. App. 627, 634, cert. denied, 227 Conn. 931 (1993). Moreover, here, the trial commissioner denied the claim for attorney’s fees. In so doing, we cannot conclude that the commissioner abused his discretion. Thus, even if we were to review this claim, we would conclude that it is without merit.

We, therefore, affirm the trial commissioner and deny the claimant’s appeal.

Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.

1 The respondent-employer and its insurer Hartford Insurance Group also filed a Petition for Review. That appeal was not pursued by the respondents and is deemed abandoned. We therefore dismiss the respondents’ Petition for Review. See Chute v. Mobil Shipping and Transportation Company, 10 Conn. Workers’ Comp. Rev. Op. 183, 184 n. 1, 1321 CRD-7-91-10 (1992), aff’d, 32 Conn. App. 16, cert. denied, 227 Conn. 919 (1993). BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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