CASE NO. 2033 CRB-4-94-5
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 25, 1995
CARL J. LIANO
CITY OF BRIDGEPORT
The claimant was represented by George C. Springer, Jr., Esq., 99 West Main St., Suite 301, New Britain, CT 06051.
The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.
This Petition for Review from the April 26, 1994 Finding and Award of the Commissioner acting for the Fourth District was heard January 13, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and Amado J. Vargas.
JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the Finding and Award of the Commissioner for the Fourth District. The claimant’s cross-appeal is still pending as well. The respondent challenges the commissioner’s inclusion of outside overtime benefits in the claimants’ “weekly compensation” under § 7-433b(b) C.G.S. for the purpose of determining the benefit cap under that section, along with the award of interest and attorney’s fees to the claimant. The claimant argues in his cross-appeal that the commissioner improperly failed to recalculate his benefits based on a later date of injury, that he failed to order reimbursement retroactive to 1983, that he failed to award interest at a 12 percent rate, and that he failed to award an educational allowance. We dismiss the respondent’s appeal and sustain part of the cross-appeal.
The claimant was employed by the Bridgeport Police Department, and filed a claim on September 18, 1979 under § 7-433c C.G.S. based on injuries related to heart disease and hypertension that were suffered in the course of his duties as a police officer. He became totally disabled as a result of those conditions on May 16, 1983. The claimant successfully established his entitlement to § 7-433c benefits, and subsequently claimed that the city owed him additional benefits, as it had failed to include in the § 7-433b(b)1 cap on his weekly payments inside and outside overtime paid to active members of the police department in the same employment status that the claimant held at the time of his injury. The commissioner agreed and awarded him inside and outside overtime benefits under the authority of Szudora v. Fairfield, 214 Conn. 552 (1990). The respondent has appealed the outside overtime portion of that award.
The facts of this particular claim are identical to those in Fitzgerald v. City of Bridgeport, 2121 CRB-4-94-8 (decided July 21, 1995), in which we decided that Szudora could be relied on by the trial commissioner in including both inside and outside overtime in the claimant’s benefits. As there is no reason to reiterate our reasoning here, we simply rely on Fitzgerald in affirming the trial commissioner’s decision on the issue of overtime.
The respondent also argues that there are no facts to support the commissioner’s decision that it unreasonably contested the claimant’s claim. Section 31-300 C.G.S. provides in relevant part:
In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in his award interest at the rate prescribed in section 37-3a and a reasonable attorney’s fee in the case of undue delay in adjustments of compensation and may include in his award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney’s fee .... In cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney’s fee.
Here, the commissioner concluded that the respondent’s failure to pay the overtime calculations constituted an unreasonable contest. He thus awarded interest at a rate of six percent per year on the unpaid portions of the benefits due the claimant, and noted that the claimant was entitled to attorney’s fees as well, for which no award was made due to a lack of evidence as to counsel’s fees.
In light of the decision reached above on the issue of outside overtime, we cannot say that there was no evidence to support the commissioner’s finding of unreasonable contest. The respondent did little to effectively distinguish this situation from the one in Szudora, supra, and it is conceivable that the commissioner had good reason to believe that its attempt to distinguish Szudora from the claimant’s case was not made in good faith. On the record before us, we cannot say that the commissioner’s decision was an abuse of discretion. See Tyc v. Calabrese Construction Co., 13 Conn. Workers’ Comp. Rev. Op. 71, 1529 CRB-5-92-10 (December 29, 1994); Wheeler v. Bender Plumbing Supply of Waterbury. Inc., 10 Conn. Workers’ Comp. Rev. Op. 140, 1186 CRD-5-91-3 (June 5, 1992). Thus, a determination must be made regarding the proper sum to be awarded for attorney’s fees.
Similarly, on his cross-appeal the claimant argues that the commissioner should have awarded the claimant 12 percent interest per annum instead of six percent as a result of the respondent’s unreasonable delay in remitting the dependency allowances and overtime payments due the claimant. The language of § 31-300 does not make the use of the 12 percent interest rate mandatory, however; the commissioner has discretion not only to award interest, but to set a lower interest rate as well. Tyc, supra; see also Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 125 (1992). Thus, the six percent figure stands.
The primary focus of Liano’s cross-appeal is the argument that the commissioner improperly failed to use a compensation rate and to recalculate benefits based on a May 16, 1983 date of injury or reinjury. The commissioner found that the claimant suffered a compensable injury on September 18, 1979, and based compensation on the maximum rate prevailing on that date. However, there is also a finding that the claimant has been totally disabled since May 16, 1983. The claimant sought to amend the Finding and Award to reflect a “totally incapacitating reoccurrence” of his condition on May 16, 1983, with a compensation rate based on that date, but his Motion to Correct was denied.
The claimant now argues that under § 31-307b C.G.S., the commissioner should have used the 1983 date of injury as the starting point for calculating his average weekly wage under § 31-310 C.G.S. The claimant also alleges error in the commissioner’s failure to rule that he was entitled to retroactive overtime payments from 1983 through 1990. The respondent counters that the claimant presented no evidence to support a finding of a new injury or a recurrence on May 16, 1983. It further argues that the principle of res judicata applies, as this issue was determined in prior proceedings.
In order to prevent endless litigation and to insure the finality of judgments, the res judicata doctrine has evolved to bar further litigation of a cause of action that has already been adjudicated. Orselet v. DeMatteo, 206 Conn. 542, 544-45 (1988). When a plaintiff in a lawsuit recovers a valid judgment, his original claim is extinguished, being replaced by rights upon the judgment. Id., citing Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 364 (1986). Determining the scope of the extinguished claim must be done pragmatically, “giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations . . . .” Id., 36465. The applicability of res judicata as a defense depends on the peculiar facts of the case. Orselet, supra, 548.
The respondent cites a Finding and Award dated August 11, 1983 and a Supplemental Finding and Award dated November 7, 1986 as evidence that the issue of whether a new injury or recurrence occurred on May 16, 1983 has already been decided. The first award merely states that the claimant learned of his heart disease on or about September 18, 1979 while in the respondent’s employment, thus entitling him to § 7-433c benefits. In the supplemental award, the claimant was found to be temporarily totally disabled due to his heart disease, and his compensation rate was found to be $204.00 per week. There is no mention of a May 16, 1983 injury or date of disability.
This Board is cognizant of the need for finality in litigation. We are also aware of the continuing jurisdiction of a workers’ compensation commissioner over a claim, as a claimant’s future disability and entitlement to benefits cannot always be determined in advance. In this case, the documents cited by the respondent do not show that the claimant’s alleged May 16, 1983 injury was ever considered by the commissioner or raised by either party. This would hardly be unusual in the workers’ compensation forum, including the § 7-433c claims administered here. Cf. McNulty v. Stamford, 37 Conn. App. 835 (1995) (awards under § 7-433c are not benefits payable pursuant to Workers’ Compensation Act). Moreover, the finding that the claimant was totally disabled as of May 16, 1983 would not be facially inconsistent with the 1979 date of injury. We thus hold that the respondent has not proven the applicability of res judicata to this issue.
The commissioner stated in paragraph 9 of his Finding and Award that “the date of injury and the weekly compensation rate are found to be those accepted in the voluntary agreements on file, September 18, 1979 and $204.00 respectively.” He then stated in paragraph 11 that “Claimant has been and is entitled to temporary total disability benefits since May 16, 1983.” Rather than finding that the claimant suffered a new injury or a recurrence, the finding simply addresses the period of the claimant’s total disability.
In Mulligan v. F. S. Electric, 231 Conn. 529 (1994), our Supreme Court decided that a claimant’s benefits should be calculated on the basis of his earnings preceding his incapacity rather than his injury when the two dates differ, regardless of whether or not the specific date of injury is discernible. Id., 539-40’. “Given the legislature’s intent to treat injured workers equally and to provide all incapacitated workers with compensation based on their loss of earning power, we decline to adopt” a result whereby workers with traumatic injuries that cause delayed incapacity would receive benefits based on their earnings preceding their injuries, regardless of their actual lost earning power. Id., 545.
We believe that Mulligan applies equally to § 7-433c cases, insofar as the statute says that an employee “shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under [the Workers’ Compensation Act].” The claimant here was not found to be disabled until May 16, 1983. Therefore, under § 31-310, his average weekly wage must be determined on the basis of his wages during the twenty-six weeks prior to that date, rather than the 1979 date of injury. We also note, however, that the claimant’s claim of entitlement to an educational allowance under § 31-308b(3) (repealed 1991) must fail, as the September 18, 1979 date of injury stands, and P.A. 80-284 was not yet effective on that date.
The commissioner ‘s Finding and Award stated that the claimant sought “greater weekly compensation benefits from 1990 on,” and his award was thus limited to benefits accruing after that date. As to the claim that Liano’s weekly wage calculation between 1983 and 1990 should take into account overtime earned, we note that Szudora, supra, does not prevent a commissioner from including overtime in a wage calculation for § 7-433c benefits accruing before 1990. The claimant is also correct in asserting that it is the respondent, not the claimant, who has the burden of proving the amount of the cap under § 7-433b(b). However, when the claimant disputes the evidence offered by the respondent as to the cap, it is necessarily incumbent on him to take steps to prove the respondent’s figures incorrect.
From the record, it appears that during the formal hearing, the claimant requested that he be reimbursed for overtime benefits improperly omitted from wage calculations for the period before 1990. (See Transcript, p. 3). The problem arises with regard to the cap. The claimant offered evidence that other police officers earned overtime after 1990, but apparently did not seek to obtain overtime records for the period before that date. The commissioner therefore had no evidence before him to contradict the respondent’s wage records establishing a lower cap for the period before 1990. It follows that he did not err in failing to award overtime reimbursement for the years before 1990, as there was nothing in the record to contradict the § 7-433b(b) cap established for those years.
The respondent’s appeal is dismissed. The claimant’s cross-appeal is sustained only with respect to the calculation of his average weekly wage under § 31-310. The case is remanded for entry of an order consistent with this opinion, as well as for a determination of the attorney’s fees due the claimant.
Commissioners Roberta S. D’Oyen and Amado J. Vargas concur.
1 Section 7-433b(b) provides in relevant part that “the cumulative payments . . . for compensation and retirement or survivors benefits under section 7-433c shall be adjusted so that the total of such cumulative payments received by such member or his dependents or survivors shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his death or retirement . . . .” BACK TO TEXT