CASE NO. 1741 CRB-4-93-5
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 30, 1995
UNITED PARCEL SERVICE
LIBERTY MUTUAL INSURANCE CO.
The claimant was represented by Karen E. Souza, Esq., Law Offices of Alan E. Silver, P.C., 275 Orange St., New Haven, CT 06510.
The respondents were represented by James Sullivan, Esq., Maher & Williams, P. O. Box 550, 1300 Post Road, Fairfield, CT 06430-0550.
This Petition for Review from the May 12, 1993 Finding and Dismissal of the Commissioner acting for the Fourth District was heard June 10, 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.
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the May 12, 1993 Finding and Dismissal of the Commissioner acting for the Fourth District. The claimant argues on appeal that the commissioner abused her discretion in concluding that the claimant was not entitled to additional compensation benefits under § 31-308a C.G.S. We reverse the decision of the trial commissioner.
The claimant, Kevin O’Connor, was injured in the course of his employment with the respondent United Parcel Service on October 16, 1989. Pursuant to a voluntary agreement, the claimant received temporary total disability and temporary partial disability benefits from March 19, 1990 until January 14, 1991, and 39 weeks of specific indemnity benefits from April 11, 1991 until January 8, 1992 based on a 7.5 percent permanent partial disability of the claimant’s lower back.
On February 17, 1992, the claimant enrolled in a full-time accounting course of study at Stone Academy that had been sanctioned by the Division of Workers’ Rehabilitation (DWR). He completed the course on November 13, 1992 and began working for another employer three days later for $400 per week. The claimant had received no state subsistence during his time at Stone Academy. At the time of his work-related injury, the claimant’s average weekly wage was $647.24 per week.
The commissioner found that the claimant had received a lump sum advancement of 13 weeks of § 31-308a benefits from the respondent insurer in August of 1992 at the rate of $231 per week, which figure was based on the attribution of a $300 weekly work capacity to the claimant. The commissioner noted that an August 17, 1992 medical report from the claimant’s treating physician rated the claimant at a 5 percent permanent partial disability of the lower back, down 2.5 percent from the percentage in the voluntary agreement. The commissioner concluded from the new medical evidence that the claimant’s disability had decreased, and that he was entitled to no additional benefits under § 31-308a. The claimant appeals that decision.
The first argument we must address is the respondents’ contention that the claimant’s petition for review was not filed within the time limit prescribed by § 31-301 (a), which states that “[a]t any time within ten days after entry of an award by the commissioner, . . . either party may appeal therefrom to the compensation review board by filing in the office of the commissioner . . . an appeal petition . . . .” Here, the claimant’s petition for review was filed on May 26, 1993, fourteen days after the entry of the commissioner’s Finding and Dismissal. The respondents do not contest the claimant’s assertion that he received the commissioner’s decision on May 17, 1993, simply arguing that the claimant was required to file his appeal by May 22, 1993 as long as he received notice of the decision before that date. The respondents are entitled to raise this defense in their brief because it implicates the subject matter jurisdiction of this Board over the claimant’s appeal. Johnston v. ARA Services Inc., 7 Conn. Workers’ Comp. Rev. Op. 19, 20, 765 CRD-7-88-8 (June 29, 1989).
The respondents’ argument is consistent with the position that this Board took in Conaci v. Hartford Hospital, 11 Conn. Workers’ Comp. Rev. Op. 184, 186-87, 1263 CRD-1-91-7 (Sept. 14, 1993), where we concluded that § 31-301 (a) required this Board to dismiss a claimant’s appeal where the claimant received notice of the decision eight days after it was entered and failed to file the appeal within the original ten-day appeal period. However, the Appellate Court has recently reversed our decision in that case. Conaci v. Hartford Hospital, 36 Conn. App. 298 (1994). They have concluded that the constitutional requirements of due process and principles of reasonable statutory construction both require that “the proper interpretation of the limitation period contained in General Statutes § 31-301 (a) is that the ten day period begins to run on the day on which the party wanting to appeal is sent meaningful notice of the commissioner’s decision.” Id., 303. Thus, this Board was instructed in Conaci to determine the date on which notice of the commissioner’s decision was sent to the parties, as no finding on that issue had yet been made in that case.
Similarly, no finding has been made in this case as to the date that notice was sent to the claimant. In light of the Conaci decision, it is clear that such a determination will have to be made here as well. It is questionable, however, whether this Board has the power to make that determination itself, as doing so will require an evidentiary hearing.
In Fair v. People’s Savings Bank, 207 Conn. 535 (1988), our Supreme Court stated that “under General Statutes § 31-301 (a) and § 31-301-8 of the Regulations of Connecticut State Agencies, the review division’s hearing of an appeal from the commissioner is not a de novo hearing of the facts. Although the review division may take additional material evidence, this is proper only if it is shown to its satisfaction that good reasons exist as to why the evidence was not presented to the commissioner. Otherwise, it is obliged to hear the appeal on the record and not ‘retry the facts.’” Id., 538-39. We note also that in situations where additional evidence may be considered by this Board, § 31-301-9 contemplates a written motion by a party seeking to introduce the additional evidence. No such motion has been filed in this case.
Along with our doubt as to the authority of this Board to conduct an evidentiary hearing in this situation, we observe that our decision on the merits would require a remand to the trial commissioner in the event that we were to find that the claimant’s petition for review was timely. Given that, we believe that the most appropriate course of action for this Board is to remand this case to the commissioner for a determination of the date that notice of her Finding and Dismissal was sent to the claimant as well as for further findings regarding the issue discussed below. Such a result is consistent with the interests of judicial economy and allows the workers’ compensation entity better equipped for fact-finding to make the evidentiary determination necessary on the notice issue.
In order to avoid the colossal delay to the resolution of this appeal that could result from our failure to address the claimant’s argument, we have decided to rule on that issue as well, with the understanding that the resulting decision would be moot in the event that the claimant’s petition for review proves to have been untimely filed. The claimant contends that the commissioner improperly determined that he was ineligible for discretionary benefits under § 31-308a despite having made findings which strongly support his entitlement to such additional compensation. It is indeed apparent from the Finding and Dismissal that the commissioner based her decision to deny additional § 31-308a benefits largely, if not solely, on the medical report showing a decrease in the claimant’s percentage of disability. We must determine whether that decision constituted an abuse of the commissioner’s discretion. Matteson v. American Standard, Inc., 11 Conn. Workers’ Comp. Rev. Op. 74, 76, 1216 CRD-2-91-4 (May 4, 1993).
At the time of the claimant’s injury, § 31-308a provided in relevant part that the commissioner “may award additional compensation benefits for such partial permanent disability equal to two-thirds of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury and the weekly amount which such employee will probably be able to earn thereafter, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age, but not more than the maximum provided in section 31-309.” An award under this section is discretionary, but the commissioner’s discretion is not unfettered. Burgos v. United Technologies, 12 Conn. Workers’ Comp. Rev. Op. 204, 207, 1441 CRB-4-92-6 (March 15, 1994). The focal point of a § 31-308a claim should be the claimant’s earning capacity. Id. “Generally, the requirements of proof in a claim for Sec. 31-308a C.G.S. discretionary benefits will contain some of the elements of a Sec. 31-308 (a) C.G.S. claim along with the pure factual determinations allocated to the trial commissioner and considered discretionary regarding the loss of claimant’s earning capacity vis-à-vis claimant’s age, physical incapacities, work restrictions, nature of injury, etc.” Lageux v. Rene Dry Wall Co., Inc., 9 Conn. Workers’ Comp. Rev. Op. 177, 180, 876 CRD-6-89-6 (Aug. 13, 1991).
Here, the commissioner determined that the claimant had gone to school full-time in a course of study approved by the DWR, where he received no state subsistence, and had become employed immediately after graduation in a full-time job that paid him $247.24 less than he had earned at the time of his injury. Thus, the evidence suggests that the claimant has suffered a diminished earning capacity. These facts were not addressed in the commissioner’s conclusion that the claimant was not entitled to additional discretionary benefits.
Although the decrease in claimant’s percentage of permanent back disability may be worthy of note in determining § 31-308a benefits, it is not appropriate for the commissioner to consider only that factor in denying an award of benefits where other evidence strongly suggests a diminished earning capacity. In particular we note that the claimant’s participation in a program approved by the DWR (and nonreceipt of state subsistence at that time) would appear to create a circumstance in which an award of § 31-308a benefits is particularly appropriate. Thus, we conclude that the commissioner’s conclusion was unsupported by the facts found. See Farina v. Tony’s Auto Sales, 11 Conn. Workers’ Comp. Rev. Op. 96, 98, 1282 CRD-5-91-8 (May 14, 1993).
The case is remanded to the trial commissioner for a determination of the date that notice was sent to the claimant as discussed above. If the petition for review is determined to have been timely filed, the commissioner is then directed to reconsider the claimant’s § 31-308a claim in accordance with this opinion.
Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.