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Hurley v. City of Bridgeport

CASE NO. 2037 CRB-4-94-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 26, 1995

TIMOTHY HURLEY

CLAIMANT-APPELLANT

v.

CITY OF BRIDGEPORT

EMPLOYER

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Daniel E. Brennan, Jr., Esq., Brennan, McNamara & Baldwin, P.C., 2 Daniels Farm Rd., P.O. Box 369, Trumbull, CT 06611-3904.

The respondent was represented by Margaret Corrigan, 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 March 10, 1995 before a Compensation Review Board panel consisting of Commissioner George Waldron and Commissioners Roberta Smith D’Oyen and Amado J. Vargas.

OPINION

GEORGE WALDRON, COMMISSIONER. The claimant has petitioned for review of the April 26, 1994 Finding and Award of the Commissioner acting for the Fourth District. In that decision, the commissioner found that the claimant, a police officer, suffered a ten percent permanent partial disability of the brain due to post traumatic stress syndrome. In addition, the commissioner found that the claimant was not totally disabled pursuant to § 31-307. The commissioner further found that the employer had paid the claimant his full wages from June 2, 1989 through December 15, 1990 while he was unable to work, but that these payments did not constitute temporary total disability payments. The commissioner thus found that the employer was not required to file a Form 36 prior to stopping these payments. In support of its appeal, the claimant disputes the commissioner’s award of a ten percent permanent partial impairment. In addition, the claimant disputes the commissioner’s determination that the employer had not made any temporary total disability payments to the claimant.

We will first address the employer’s motion to dismiss the claimant’s appeal due to the allegedly late filing of his reasons of appeal and motion to correct. The claimant filed a timely appeal on May 4, 1994 from the trial commissioner’s April 26, 1994 decision. Pursuant to § 31-301-2, the claimant’s reasons of appeal were required to be filed within ten days after filing the appeal. As the tenth day fell on a Saturday, April 14, 1994, the claimant properly filed his reasons of appeal on the next business day, Monday, April 16, 1994. Almahdi v. State of Connecticut/ Somers Correctional Institute, 11 Conn. Workers’ Comp. Rev. Op. 251, 1355 CRD-2-91-12 (Nov. 10, 1993) (citing Conn. Practice Book § 4010). Furthermore, although the employer contends that the claimant filed his motion to correct in an untimely manner, the trial commissioner nevertheless ruled on the motion to correct. Therefore, the commissioner impliedly extended the time in which to file the motion to correct. See Andrew v. Sal’s Express Co., 2 Conn. Workers’ Comp. Rev. Op. 110, 228 CRD-4-83 (Dec. 3, 1984). Accordingly, the employer’s motion to dismiss is denied.

We now turn to the merits of the claimant’s appeal. The claimant contends that the commissioner erred in finding a ten percent permanent partial disability. This board has consistently ruled that the determination of permanent partial disability is a question of fact for the trial commissioner. Moreover, where the medical opinions regarding permanent partial disability are in conflict, the trial commissioner’s determination must stand so long as there is evidence to support it. Salz v. Oliver’s Taverne, 12 Conn. Workers’ Comp. Rev. Op. 325, 326, 1593 CRB-8-92-12 (July 5, 1994). In the instant case, Dr. Rubinstein opined that the claimant did not sustain any permanent disability or functional loss of the use of the brain. Dr. D’Apice opined that the claimant sustained a ten to twenty percent permanent impairment “in a stable situation.” (Finding No. 18).

The claimant contends that Dr. Rubinstein’s medical opinion is contradictory in that he found that the claimant was unable to perform police work and several other types of work, but nevertheless concluded that the claimant sustained a zero percent permanent partial disability of the brain. To the contrary, a claimant’s reduced employability does not require an award of permanent partial disability. See Mansfield v. Connecticut, 12 Conn. Workers’ Comp. Rev. Op. 226, 1388 CRB-1-92-3 (March 23, 1994). Moreover, it is the commissioner, as the trier of fact, who determines with finality the credibility of the witnesses and the weight to be accorded their testimony. Salz, supra, at 327. The commissioner’s determination that the claimant sustained a ten percent permanent disability is amply supported by the medical evidence, and thus will not be disturbed.

In further support of its appeal, the claimant contends that the employer was required to file a notice indicating that it intended to stop payments prior to ending payments to the claimant effective December 15, 1994. We disagree. Pursuant to § 31-296 and §31-296a an employer who is paying workers’ compensation for total or partial incapacity under either a written or an oral agreement must notify the commissioner and the claimant of its intent to discontinue such payments by filing a Form 36 before the date of proposed discontinuance. In the instant case, the commissioner determined that the employer’s payments to the claimant from June 2, 1989 through December 15, 1990 did not constitute temporary total or partial disability payments, but rather constituted a continuation of his salary pursuant to his employment contract. The claimant does not contend that there was an order by a commissioner to pay temporary total or partial disability, nor does the claimant contend that a written or oral agreement to make workers’ compensation payments existed.1 Accordingly, the trial commissioner properly concluded that the employer was not required to file a notice prior to discontinuing such payments. See Lee v. Bridgeport Housing Authority, 12 Conn. Workers’ Comp. Rev. Op. 58, 1416 CRB-4-92-5 (Jan. 27, 1994).

The trial commissioner’s decision is affirmed.

Commissioners Roberta Smith D’Oyen and Amado J. Vargas concur.

1 We note that the claimant’s counsel stated during the formal hearing on February 2, 1993 that a claim for workers’ compensation was first filed approximately two years prior. (2/2/93 Transcript at p. 4). Thus, it appears that the initial claim for workers’ compensation had not yet been filed during the period from June 2, 1989 to December 15, 1990. BACK TO TEXT

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