Mulligan v. N.C.H. Corporation Chemsearch Division

The claimant was represented by Kerry M. Wisser, Esq., Weinstein & Wisser, 1001 Farmington Avenue, West Hartford, CT 06107.

The respondents were represented by Michael Tierney, Esq. and Thomas H. Cotter, Esq., Cotter, Cotter & Sohon, P.O. Box 5660, Bayview Station, Bridgeport, CT 06610.

This Petition for Review from the August 20, 1992 Finding and Order of the Commissioner acting for the Seventh District was heard June 11, 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 sustained a compensable injury to his back and other body parts on April 10, 1987. Said injury, which arose out of a motor vehicle accident, also resulted in a third party action in Superior Court. The respondent-employer intervened in that third party action. On February 13, 1992, the third party action resulted in a stipulated judgment of $1,500,000, which judgment is presently the subject of an appeal to our Supreme Court.

The respondents have not paid any workers’ compensation benefits to the claimant since February 13, 1992. It is the respondents’ contention that, since February 13, 1992, they have not been required to make further compensation payments to the claimant until he has exhausted the amount received in the third party action. The respondents base their claim to a future credit on General Statutes Sec. 31-293(a) and Enguist v. General Datacom, 218 Conn. 19 (1991).

The trial commissioner, however, found that the respondent-insurer improperly terminated compensation benefits without a Form 36 having been approved by a workers’ compensation commissioner. He therefore ordered the respondent-insurer to pay to the claimant or for his benefit all such amounts that are due him under Chapter 568 of the General Statutes, retroactive to February 13, 1992 and continuing thereafter as they may be due the claimant. We affirm the trial commissioner.

Before a respondent may properly terminate payment on account of total or partial incapacity if it is claimed that the incapacity continues, a notice by which the employer indicates an intention to discontinue or reduce payments under an Agreement or Award (a Form 36) must be submitted to and approved by the commissioner pursuant to General Statutes Sec. 31-296. Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 120 n. 4, cert. denied, 223 Conn. 920 (1992); Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 44-45, 1111 CRD-4-90-9 (1992). “[A] condition precedent to the discontinuance of payments is a valid approved Form 36, Platt v. UTC/Pratt & Whitney Aircraft Div., 3 Conn. Workers’ Comp. Rev. Op. 3, 164 CRD-6-82 (1985).” Muir v. Trailways of New England, 4 Conn. Workers’ Comp. Rev. Op. 120, 121, 419 CRD-6-85 (1987).

The respondents here did not properly file and obtain commissioner approval of a Form 36 prior to discontinuing the claimant’s benefits. The failure to comply with these procedural prerequisites is fatal to any attempt to terminate workers’ compensation payments to the claimant, regardless of the merits or the reasons for such termination. The respondents’ claim to the contrary notwithstanding, Sec. 31-293(a) “cannot be interpreted to permit an employer to suspend or discontinue benefits unilaterally without commission approval. It is not the employer who adjudicates rights in the system. That is the commissioner’s prerogative.” Applebee v. State of Connecticut, 8 Conn. Workers’ Comp. Rev. Op. 142, 143, 841 CRD-5-89-4 (1990).

Accordingly, the commissioner correctly determined that the respondents’ failure to file a Form 36 required them to continue to pay benefits to the claimant and to pay benefits retroactive to the date of discontinuance. Under these circumstances, we need not address the justification for discontinuance urged by the respondents before the trial commissioner and again on appeal.

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

Additionally, pursuant to Sec. 31-301c(b), we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.