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Haugh v. Leake & Nelson

CASE NO. 1421 CRB-2-92-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 15, 1994

FRANK HAUGH

CLAIMANT-APPELLANT

v.

LEAKE & NELSON

EMPLOYER

and

AETNA CASUALTY & SURETY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Jeffrey J. Oliveira, Esq., Levy & Droney, 74 Batterson Park Road, Farmington, CT 06034.

The respondent-employer was represented by Carolyn Signorelli, Esq., Maher & Williams, P.O. Box 269, Bridgeport, CT 06601 who did not file a brief.

The respondent-insurer was represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

This Petition for Review from the April 30, 1992 Finding and Award of the Commissioner for the Second District acting for the Eighth District was heard April 30, 1993 before a Compensation Review Board panel consisting of Commissioners Frank J. Verrilli, James J. Metro and Angelo L. dos Santos.

OPINION

ANGELO L. dos SANTOS, COMMISSIONER. The claimant has petitioned for review from the April 30, 1992 Finding and Award of the Second District Commissioner acting for the Eighth District. The trial commissioner determined that the compensation rate should be $478.42, awarded temporary partial benefits from April 11 to September 24, 1990, 17.5 weeks of permanent partial benefits for a ten percent impairment of the neck commencing on September 25, 1990, and temporary total benefits from April 8 to September 24, 1991, and ordered the respondents to make payment or contribution on the claimant’s behalf to his union’s employee welfare fund for accident and health insurance and life insurance for the periods during which the claimant was receiving benefits.1 On appeal, the claimant contends that the trial commissioner improperly (1) dismissed his claim for a higher compensation rate, (2) failed to award temporary total disability benefits for the entire period from April 11, 1990 to January 23, 1992, (3) failed to include contributions to the claimant’s union’s employee welfare fund for pension and annuity benefits in his Sec. 31-284b order, and (4) failed to award attorney’s fees and costs. We affirm the trial commissioner.

The claimant first contends that the trial commissioner should have addressed the merits of his claim of entitlement to a higher compensation rate. This issue was resolved by our previous decision in Haugh v. Leake & Nelson, 9 Conn. Workers’ Comp. Rev. Op. 148, 1066 CRD-8-90-7 (1991). The claimant’s attempt to reassert claims previously the subject of appellate determination was therefore properly rejected by the trial commissioner. See Mingrone v. Burndy Corporation, 1403 CRB-7-92-3 (decided January 13, 1994) (prior C.R.B. determination is “law of the case” and precludes further litigation of issue).

The claimant next contends that the trial commissioner should have awarded temporary total disability benefits for the entire time period in issue (April 11, 1990 to January 23, 1992). The determination of whether a claimant is totally disabled at any particular time, however, is a factual issue to be resolved by the trial commissioner. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454 (1951); Coates v. Turbine Component, 1365 CRD-3-92-1 (decided November 18, 1993). The evidence on this issue was in conflict. It was therefore the province of the commissioner, as the trier of the facts, to resolve any conflicts in the evidence. See Miller v. Kirshner, 225 Conn. 185, 198-99 (1993). As the conclusions reached from the facts found did not result from incorrect applications of law or from inferences illegally or unreasonably drawn from these facts, those conclusions must stand. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The claimant also challenges the extent of the commissioner’s order pursuant to General Statutes Sec. 31-284b. He contends that the trial commissioner should have required the respondent-employer to make contributions to the claimant’s welfare fund for pension and annuity plans, in addition to contributions for health and life insurance. As it applies to the circumstances of this case, however, Sec. 31-284b is pre-empted by federal E.R.I.S.A. legislation. See District of Columbia v. Greater Washington Board of Trade, ___ U.S. ___, 113 S. Ct. 580, 121 L.Ed.2d 513 (1992); Luis v. Frito-Lay, Inc., No. SC 14536 (Connecticut Supreme Court, order dated April 27, 1993). We therefore lack the authority to modify the order as requested by the claimant. Mulligan v. Uniroyal, Inc., 11 Conn. Workers’ Comp. Rev. Op. 121, 1200 CRD-5-91-3 (1993).

The claimant’s final claim on appeal is that the trial commissioner improperly denied the claimant’s request for attorney’s fees and costs. In support of this claim, the claimant argues in his brief that “the defense in this case on the part of Respondent Leake-Nelson (sic) was made in spite of the absence of genuine issues of fact over which reasonable minds could differ.” Yet, in ruling on the claimant’s motion to correct, the commissioner concluded to the contrary that “there were genuine issues of fact over which reasonable minds could differ, the delay in payment of compensation was not due to the fault or neglect of the respondent, nor was there an undue delay in the payment of compensation by the respondents.” The commissioner was in a position to hear all the relevant testimony, and he could best decide whether the respondents’ contention found support in the evidence. Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 179 (1974); Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 124, cert. denied, 223 Conn. 920 (1992) ; Hicks v. State of Connecticut/ Department of Administrative Services, 6 Conn. Workers’ Comp. Rev. Op. 111, 118-19, 429 CRD-5-85 (1989), no error, 21 Conn. App. 464, cert. denied, 216 Conn. 804 (1990). We cannot conclude that the commissioner erred in finding that the contest of liability was not unreasonable.

We, therefore, affirm the trial commissioner and deny the appeal.

Commissioners Frank J. Verrilli and James J. Metro concur.

1 The respondent-employer originally appealed from the trial commissioner’s order pursuant to General Statutes Sec. 31-284b. That appeal, however, was withdrawn after the trial commissioner clarified the nature of the respondent’s obligation under that order by limiting it to payment of group health insurance maintained on the claimant’s behalf and by excluding annuity and pension plan contributions from its scope. BACK TO TEXT

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