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Hall v. Gilbert & Bennett Mfg. Co.

CASE NO. 1449 CRB-7-92-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 7, 1994

GARLAND HALL

CLAIMANT-APPELLANT

v.

GILBERT & BENNETT MFG. CO.

EMPLOYER

and

TRAVELERS INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Stewart M. Casper, Esq., Casper & de Toledo, 600 Summer Street, Stamford, CT 06901.

The respondents were represented by Robert S. Cullen, Esq., Law Offices of Robert S. Cullen, P.O. Box 9802, New Haven, CT 06536-0802.

This Petition for Review from the June 30, 1992 Finding of the Commissioner for the Seventh District was heard May 21, 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 reached maximum medical improvement but continues to be totally disabled. He appeals because the Seventh District Commissioner denied his request that he be granted a specific award for the permanent partial disabilities alleged to have resulted from his compensable injury, with the payment of the same deferred until such time as the claimant is no longer totally disabled or dies. We reverse the trial commissioner.

An injured worker has a right to a permanent partial disability award once he or she reaches maximum medical improvement. McCurdy v. State, 227 Conn. 261, 268 (1993); Stapf v. Savin, 125 Conn. 563, 565 (1939); Panico v. Sperry Engineering Co., 113 Conn. 707, 714 (1931). Yet, a person may reach maximum medical improvement, have a permanent partial impairment, and be temporarily totally disabled from working, all at the same time. Id., 267-68; Osterlund v. State, 129 Conn. 591, 600 (1943). Under such circumstances, a trial commissioner has discretion to continue total disability payment to the injured worker notwithstanding the workers’ entitlement to the permanency award. Osterlund v. State, supra, 597-600.1 Where the injured worker has reached maximum medical improvement and his right to an award of permanent partial disability has thereby vested, the commissioner “does not have discretion to deny such award if the worker requests that award.” (Emphasis added.) McCurdy v. State, supra, 269.

Here, the claimant has requested an award of permanent partial disability, and therefore under McCurdy his request must be granted. The commissioner refused the request, however, based on Paternostro v. Edward Coon Co., 217 Conn. 42 (1991), and McCurdy v. State, 26 Conn. App. 466 (1992)2, which prohibit the concurrent payment of permanent partial disability benefits and temporary total disability benefits. Yet, payment of benefits as requested by the claimant will not run afoul of the rule against concurrent payment. Paternostro and the cases on which it relied; Panico v. Sperry Engineering Co., supra, and Olmstead v. Lamphier, 93 Conn. 20 (1918); recognize that our Workers’ Compensation Act permits an award of permanent partial disability benefits which will be paid consecutively to benefits paid for total incapacity. See Paternostro v. Edward Coon Co., supra, 46-49. The claimant’s request that he be awarded permanent partial disability benefits with their payment deferred until such time as he is no longer totally disabled or dies, therefore, properly sought such an award of permanent partial disability benefits to be paid consecutively to his present benefits for total incapacity.3

We must therefore remand this case to the trial commissioner for a deferred award of permanency benefits. By permitting a totally disabled claimant to make a present claim for the future payment of permanent partial disability benefits, we do not mean to allow a claimant to create an asset which will be held for his estate. In McCurdy, our Supreme Court determined that the injured worker became entitled to a permanent partial award on December 15, 1987, when he requested such an award at the hearing before the commissioner. McCurdy v. State, supra, 227 Conn. 269. The McCurdy court, however, made clear that “temporary total disability payments that were made to him between that date and the date of his death can be deducted from a permanent partial disability award.” Id., 269 n. 9. Thus, while the claimant here can request and receive a deferred award of permanent partial disability, the respondents will be entitled to a credit against that award for any temporary total disability benefits paid to the claimant between the date when he requested the award and the date when he is no longer totally disabled or dies.

We, therefore, sustain the appeal and reverse the trial commissioner; the matter is remanded to the Seventh District for further proceedings consistent with this opinion.

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

1 In fact, by Finding and Award dated January 14, 1992 which is not the subject of this appeal, the Commissioner at Large Acting for the Seventh District did just that. He found the claimant to be totally disabled notwithstanding the fact that the claimant had reached maximum medical improvement and received certain permanency ratings. BACK TO TEXT

2 We note that the trial commissioner rendered his decision while the Appellate Court decision in McCurdy v. State, 26 Conn. App. 466 (1992), was still good law. That decision, however, was reversed by our Supreme Court in McCurdy v. State, 227 Conn. 261 (1993). We also note that this case was argued to this panel before McCurdy was decided by our Supreme Court. BACK TO TEXT

3 In light of our resolution of the claimant’s appeal, we do not address the constitutional challenge raised in his brief. BACK TO TEXT

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