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Pelletier v. M & M Builders, Inc.

CASE NO. 1740 CRB-5-93-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 19, 1995

MARTIN PELLETIER

CLAIMANT-APPELLANT

CROSS APPELLEE

v.

M & M BUILDERS, INC.

EMPLOYER

and

NATIONAL GRANGE MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

CROSS APPELLANTS

APPEARANCES:

The claimant was represented by Daniel J. Mahaney, Esq. Mahaney, Geghan & Roosa, One Exchange Place, Waterbury, CT 06702.

The respondents were represented by Ruth A. Tower, Esq., Howard, Kohn, Sprague & FitzGerald, 237 Buckingham St., Hartford, CT 06126-0896.

This Petition for Review from the May 14, 1993 Finding and Award of the Commissioner acting for the Fifth District was heard May 20, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant and respondents have both petitioned for review from the May 14, 1993 Finding and Award of the Commissioner for the Fifth District. The claimant appeals the commissioner’s failure to award interest and attorney’s fees, and the respondents appeal the commissioner’s increase of the claimant’s average weekly wage by 50 percent pursuant to § 31-310 C.G.S. We affirm the trial commissioner’s decision in part, and reverse in part.

The claimant, Martin Pelletier, was seventeen years old on November 6, 1987, when he suffered a compensable injury in the course of his employment as a carpenter’s helper with the respondent M & M Builders, Inc. On that date, the claimant fell from a roof and fractured a vertebra in his neck, resulting in the total and permanent paralysis of his legs. At the time of the injury, the claimant was a high school senior and could only work part-time for the employer. Pursuant to a voluntary agreement between the parties, his average weekly wage was established as being $191.25, giving him a weekly compensation rate of $127.50.

At the time of the formal hearing, the claimant was employed full-time as a machine operator with the Torrington Company for $7.91 per hour. The commissioner found that, even considering the claimant’s current employment, the catastrophic injury suffered by the claimant entitles him to receive temporary total disability benefits on a permanent basis under § 31-307.1 He also found that the claimant’s age and status as a high school student, and thus a part-time employee, at the time of injury justified a fifty percent increase in his weekly compensation rate pursuant to § 31-310. Despite these findings, the commissioner declined to award attorney’s fees or interest against the respondents, stating that their position in this case was “somewhat viable” and that their behavior was not sufficiently “careless or negligent as regards the obligation of the carrier” under the Workers’ Compensation Act to justify such an award.

We first address the respondents’ appeal. The commissioner increased the claimant’s average weekly wage by fifty percent to $286.87 per week under §31-310. The relevant part of that statute provides that “[f]or the purpose of determining the amount of compensation to be paid in the case of a minor under the age of eighteen who has sustained an injury entitling him to compensation for total or partial incapacity for a period of fifty-two or more weeks, . . . the commissioner may add fifty per cent to his average weekly wage.” The respondents claim that the commissioner’s application of the statute to this case is inconsistent with the subordinate facts found and contrary to the statute’s purpose. We disagree.

The commissioner determined that the exercise of his discretion to increase the claimant’s wage rate was appropriate in this case because the claimant was a high-school student at the time of the injury and thus was available to work only part-time. The respondents argue that the intended purpose of the statute is to compensate a minor who, because of his age, was earning a lower hourly wage than an adult doing the same job. Because there is no evidence that the claimant was being paid less than an adult would have been paid for working as a carpenter’s helper, and because the claimant has been able to obtain employment despite his paralysis, the respondents contend that § 31-310 is inapplicable to this case.

The statute draws no such distinction. It merely gives the commissioner discretion to increase a seventeen-year-old claimant’s benefits by fifty percent when his injury will result in a year or more of incapacity. Given the humanitarian spirit of the Workers’ Compensation Act, it would be inappropriate for this Board to read into the general discretionary authority of § 31-310 a requirement that an increase only be awarded where it is shown that a claimant was being underpaid with respect to an adult on an hourly basis. A claimant who is still in high school is simply not available to work full-time unless he drops out, which career path we certainly do not encourage. It makes sense for a commissioner to be able to offset the increased impact that a long-term disability would have on a claimant once he became available for full-time employment by raising the claimant’s average weekly wage by fifty percent. We thus disagree with the respondents’ contention that the factual predicate for the increased award relied on by the commissioner was insufficient, as his grounds for applying the statute are within its intended purpose.

As for the claimant’s ability to obtain other employment, we note that his entitlement to benefits under § 31-307 (e) is unaffected by his future wage earning capacity. Therefore, the commissioner was not required to refrain from applying § 31-310 simply because the claimant was employed at the time of the hearings.

We next address the claimant’s appeal. He argues that the commissioner’s refusal to assess liability for interest and attorney’s fees against the respondents was inconsistent with the facts found and contrary to § 31-300. In his view, the Workers’ Compensation Act clearly mandates the payment of total incapacity benefits to the claimant, leaving unsupported by the record the commissioner’s conclusion that the respondents’ behavior was not sufficiently egregious to warrant the awarding of interest or attorney’s fees. He also asserts that the respondents discontinued the payment of benefits on August 18, 1989 without the written approval of the commissioner. We need discuss only the latter argument in support of the claimant’s position.

Section 31-300 provides that “in any case where the commissioner finds that the employer or insurer has discontinued or reduced any [compensation] payment without having given such notice [of proposed discontinuance] and without the commissioner having approved such discontinuance or reduction in writing, the commissioner shall allow the claimant a reasonable attorney’s fee together with interest at the rate prescribed in section 37-3a on the discontinued or reduced payments.” Although the commissioner did not make a specific finding regarding the respondents’ receipt of approval to discontinue the claimant’s benefits, the respondents do not refute the claimant’s assertion that written approval for the discontinuance (i.e., the filing of a Form 36) was not obtained by the respondents before payment of benefits was stopped. The only Form 36 in the file was received by the Workers’ Compensation Commission on August 16, 1991, two years after the payment of benefits was discontinued. As we have determined above that the claimant was indeed entitled to temporary total benefits, it was incumbent upon the respondents to obtain permission from the commissioner before discontinuing the payment of compensation.

The respondents’ reliance on their alleged belief that the claimant was no longer entitled to benefits under § 31-307 once he found another job as a ground for affirming the trial commissioner’s ruling on the issue of interest and attorney’s fees is to no avail. First, it is not the place of the insurer to interpret the statutes of the Workers’ Compensation Act in the manner most favorable to them simply because no case law exists specifically addressing the applicability of a particular statute to the situation at hand. Indeed, such a situation is an appropriate time to seek the commissioner’s approval before discontinuing the payment of benefits.

Second, the language of § 31-300 as quoted above is mandatory, not discretionary, and does not provide an exception for a “good faith” unilateral discontinuance of benefits. See Carpentino v. Perkins Trucking Co., 5 Conn. Workers’ Comp. Rev. Op. 40, 42-43, 488 CRD-3-86 (April 6, 1988), affirmed, 18 Conn. App. 810 (1989) (per curiam). The statute clearly requires the commissioner to award interest and attorney’s fees if he or she finds that payment was discontinued without a commissioner’s prior written approval. As it is apparently undisputed that such approval was not acquired by the respondents, the only question left is the amount of attorney’s fees and interest that will be levied against the respondents.

The trial commissioner’s decision is affirmed with respect to the respondents’ appeal, and reversed with respect to the claimant’s appeal. On remand, the commissioner is instructed to make a finding regarding the issuance of prior written approval for the discontinuance of benefits. If such approval was not given, the commissioner is then required by § 31-300 to award attorney’s fees and interest against the respondents.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

1 At the time of the injury, § 31-307 provided in relevant part: “If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of the injury . . . . The following-described injuries of any person shall be considered as causing total incapacity and compensation shall be paid accordingly: . . . (e) any injury resulting in permanent and complete paralysis of the legs or arms or of one leg and one arm . . . .” BACK TO TEXT

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