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Lillo v. Dichello Distributors

CASE NO. 1843 CRB-3-93-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 28, 1995

ERNEST LILLO, SR.

CLAIMANT-APPELLEE

v.

DICHELLO DISTRIBUTORS

EMPLOYER

EBI INDEMNITY COMPANY

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Donald C. Cousins, Esq., Cousins & Johnson, 2563 Main St., Stratford, CT 06497, who filed a brief but did not appear at oral argument.

Respondent employer and insurer were represented by David C. Davis, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike., Vernon CT 06066.

The respondent Second Injury Fund was represented by J. Sarah Posner, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the August 30, 1993 Finding and Award of the Commissioner acting for the Third District was heard October 7, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent Second Injury Fund has petitioned for review from the August 30, 1993 Finding and Award of the Commissioner for the Third District. This appeal presents the issue of whether the employer and its insurer (hereinafter “respondents”) provided timely notice to the Second Injury Fund (hereinafter “Fund”) pursuant to § 31-349 C.G.S.

The commissioner found the following relevant facts. On May 4, 1987 the claimant suffered an acute myocardial infarction, which constituted a compensable injury which had been made substantially and materially greater due to a preexisting coronary artery disease. The claimant was temporarily totally disabled for twenty-three weeks, from May 4, 1987 until October 12, 1987. The claimant returned to work on October 12, 1987, with instructions from his physician, Dr. Seltzer, that he could not return to his previous position which had involved heavy lifting. Instead, the claimant performed janitorial duties for which he earned approximately $8,000 to $10,000 less per year than he had earned in his previous position. In a report dated July 2, 1991, Dr. Seltzer rated the claimant as having a permanent impairment of between thirty and fifty percent. Although Dr. Seltzer did not rate the claimant’s permanent impairment until July 2, 1991, in a subsequent letter dated June 2, 1993, Dr. Seltzer stated that the claimant had “reached maximum medical improvement following rehabilitation in 10/87.” (Finding No. 39) The respondents first noticed the Fund of the intent to transfer the claim pursuant to § 31-349 C.G.S. by a letter dated April 8, 1991 which was received by the Fund on April 11, 1991.

In his Finding and Award, the trial commissioner found that the claimant suffered a 37.5 percent permanent partial disability of the heart which entitled him to 292.5 weeks of benefits pursuant to § 31-308(d) C.G.S. The trial commissioner further determined that the claimant’s permanent partial disability commenced on July 2, 1991, the date of Dr. Seltzer’s report. The trial commissioner thus ordered the Fund to accept the transfer of the second injury claim effective January 23, 1993, which marked the eighty-first week of permanent partial disability benefits from the date of July 2, 1991.1 In determining the 104 week notice period contained in § 31-349 C.G.S., the trial commissioner did not include the period of approximately three years and eight months, from October 12, 1987 through July 2, 1991, during which the claimant had returned to light duty work with the respondent employer.

The Fund contends that the respondents’ notice of claim for transfer to the Second Injury Fund was untimely under § 31-349 C.G.S. At the time that the respondents sought transfer to the Fund in April, 1991, Section 31-349 (Rev. to 1983) provided that “[a]s a condition precedent to the liability of the second injury fund, the employer or his insurance carrier must, ninety days prior to the expiration of the first one-hundred-four-week period, notify the custodian of the second injury fund of the pending case . . . .” Strict compliance with this provision is required in order to transfer liability under this section. Plesz v. United Technologies Corporation, 174 Conn. 181, 186-88 (1978); Kiernan v. Roadway Express, Inc., 15 Conn. App. 625, 630 (1988); Reising v. General Dynamics/Electric Boat Division, 1609 CRB-2-92-12 (decided Dec. 6, 1994). The Connecticut Supreme Court has held that the 104 week notice period refers not to the number of weeks of benefits paid to the claimant, but rather to the “first one hundred four weeks of the claimant’s disability.” Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 391 (1993).

The Fund contends that the claimant was continuously disabled throughout that 104-week period, and that the notice was untimely filed as a result. Based upon the trial commissioner’s findings of fact, we conclude that the claimant was disabled within the meaning of Vaillancourt, supra, during the period between October 12, 1987 and July 2, 1991. Specifically, throughout this period, the claimant was physically unable to return to his previous position pursuant to his physician’s restrictions, and was assigned to a light duty position at a decreased salary. The fact that the claimant did not request benefits during this period, and may or may not have been entitled to benefits during this period, does not change the fact that he was disabled. See Vaillancourt, supra; see also Six v. Thomas O’Connor & Co., 1621 CRB-1-93-1 (decided Dec. 27, 1994). The employer clearly had knowledge of the claimant’s disability based upon his physician’s return-to-work limitations, which the employer not only followed, but which also led the employer to decrease the claimant’s annual earnings. We thus conclude that the 104 week period under § 31-349 C.G.S. was not interrupted by the claimant’s return to work.

Accordingly, the 104 week notice period ran continuously from the date of the claimant’s injury on May 4, 1987. Therefore, the ninetieth day before the expiration of the 104 week period would have elapsed in early February, 1989. Notice of this case was not sent to the Fund until April 11, 1991. We thus conclude that notice to the Fund was untimely pursuant to § 31-349 C.G.S.2

The trial commissioner’s order pursuant to § 31-349 C.G.S. is reversed, and this matter is remanded with direction to vacate the order of transfer of liability to the Second Injury Fund.

Commissioners Angelo L. dos Santos and Michael S. Miles concur.

1 The claimant’s twenty-three weeks of temporary total benefits combined with eighty-one weeks of permanent partial benefits totals 104 weeks of benefits. BACK TO TEXT

2 Based upon the above decision, the respondents’ appeal of the trial commissioner’s order dated October 18, 1993 which requires the respondents to pay the claimant’s benefits during the appeal period is rendered moot. We therefore will not address that issue. In addition, we note that at the oral argument before this Board, the respondents’ attorney withdrew its motion to dismiss which was filed on January 10, 1994. BACK TO TEXT

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