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Kelley v. New England Railroad

CASE NO. 2274 CRB-2-95-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 23, 1996

PETER KELLEY

CLAIMANT-APPELLEE

v.

NEW ENGLAND RAILROAD

EMPLOYER

and

EMPLOYERS INS. OF WAUSAU

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Al Ghiroli, Esq., 150 West Main St., Branford, CT 06405.

The respondents were represented by Robert McGann, Esq., McGann, Bartlett & Brown, 281 Hartford Tpke., Vernon, CT 06066.

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

This Petition for Review from the January 13, 1995 Finding and Award of the Commissioner acting for the Second District was heard December 1, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The Second Injury Fund has petitioned for review from the January 13, 1995 Finding and Award of the Commissioner acting for the Second District. The Fund argues on appeal that the trial commissioner improperly ordered that liability for the accepted claim be transferred to the Fund under § 31-349 C.G.S. We affirm the trial commissioner’s decision.

The claimant sustained a compensable injury to his lower back on July 3, 1990. After a period of total disability, a Form 36 was approved without contest on April 29, 1991, ending the claimant’s entitlement to temporary total disability benefits effective February 7, 1991. The reason given in the Form 36 for discontinuing benefits was because “employee reached maximum improvement.” One year later, a voluntary agreement was approved establishing a 22.5 percent permanent partial disability of the back with a maximum medical improvement date of May 7, 1991. The respondents notified the Fund on May 1, 1992 of their intent to seek transfer pursuant to § 31-349; said notice was received on May 7, 1992. Continuous benefits were paid to the claimant from the date of injury through September 24, 1993.

The key question in this case is whether or not timely notice was provided to the Fund. The respondents contended at the formal hearing that, even though the claimant was paid benefits for the period between February 7, 1991, and May 7, 1991, the retroactive approval of the Form 36 to February 7 and approval of the voluntary agreement with a maximum medical improvement date of May 7 indicates that the claimant was not entitled to receive benefits during the three-month interim period, and that said period should not be counted in the 104-week calculation under § 31-349.1 The claimant did not claim temporary partial disability for those three months. The trial commissioner agreed with the respondents, holding that receiving continuous payments was not the equivalent of being disabled, and that the period of actual disability is what controls the notice requirements. Thus, she concluded that notice was timely, and ordered the transfer of liability to the Second Injury Fund. The Fund has appealed that decision to this board.

At all relevant times, § 31-349(a) provided that “[a]s a condition precedent to the liability of the second injury fund, the employer or his insurance carrier shall, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case . . . .” The term “one-hundred-four-week period” refers to the first 104 weeks of the claimant’s disability under § 31-349. Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 394 (1993). “Disability,” in turn, refers to the inability of a claimant to work, as opposed to his degree of medical impairment, for the purposes of § 31-349. Williams v. Best Cleaners, 235 Conn. 778, 786 (1996).

This board recently has decided several cases that deal with the issue of a non-continuous 104-week period of disability for the purpose of Fund notification. Lillo v. Dichello Distributors, 14 Conn. Workers’ Comp. Rev. Op. 1, 1843 CRB-3-93-9 (April 28, 1995); Pereira v. Taylor & Fenn Co., 14 Conn. Workers’ Comp. Rev. Op. 16, 1816 CRB-1816 CRB-1-93-8 (April 28, 1995). One of those opinions, Six v. Thomas O’Connor & Co., 13 Conn. Workers’ Comp. Rev. Op. 69, 1621 CRB-1-93-1 (Dec. 27, 1994), was cited by the trial commissioner as authority for her decision below. Our Supreme Court has reversed our decision in Six, see 235 Conn. 790 (1996), on the ground that this board misconstrued the Six commissioner’s finding that “[t]he claimant has acknowledged that he was not entitled to . . . temporary partial benefits” for a certain period. The Court stated that, given the trial commissioner’s conclusion that notice to the Fund was untimely and the existence of evidence supporting that conclusion, this board should have construed the finding as a mere recitation of a statement rather than an adoption of the substance of that statement. “The board . . . must not disturb the commissioner’s conclusion as long as it is sustainable by the underlying facts.” Id., 801.

In this case, the trial commissioner’s ultimate conclusion was that notice was timely because the claimant was not actually disabled between February 7 and May 7, 1991. She also concluded that the respondents were not obligated to make payments to the claimant between February 7 and April 29, 1991, as the Form 36 became effective on the earlier date. As to the latter conclusion, retroactive approval of the Form 36 was not erroneous. The claimant did not object to the Form 36, and the notice provision of § 31-296 C.G.S. by its terms only applies when the claimant alleges continuing incapacity. Compare Stryczek v. State of Connecticut/Mansfield Training School, 14 Conn. Workers’ Comp. Rev. Op. 32, 1765 CRB-2-93-6 (May 4, 1995).

As to the commissioner’s ultimate conclusion, the valid retroactive approval of the Form 36 to February 7, 1991, and the absence of a claim for temporary partial disability benefits from that date to May 7, 1991, both support the commissioner’s conclusion that no § 31-349 disability existed during that three-month period. Although the treating physician’s report suggests that the claimant had certain employment restrictions after February 7, 1991, and was a good candidate for vocational rehabilitation or retraining, the Finding reciting that statement cannot be construed by this board as an acceptance of the substance of that report in light of the other findings supporting the commissioner’s conclusion. Six, supra, 801 (“we must interpret finding six with the goal of sustaining that conclusion in light of all of the other supporting evidence”). The commissioner acts as the factfinder in a workers’ compensation case, and is charged with determining the credibility of evidence; this board must not usurp that function. Id., 798-99; Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979).

There is a medical report attached to the voluntary agreement that supports the use of the May 7, 1991 maximum medical improvement date in that agreement. Moreover, there is nothing in the record that establishes as a matter of law that the claimant continued to be disabled during the three-month period preceding that date. The recent Supreme Court decision in Six has reemphasized the need for deference to the findings of the trial commissioner where it is possible to cull support for her decision from the record. Six, supra, 801. Because it was possible for the commissioner to infer that the claimant was not subject to any sort of work restriction during the three months in question, we must defer to that decision on appeal.

The trial commissioner’s decision is affirmed.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

1 Assuming continuous disability for 104 weeks, notice to the Second Injury Fund based on a July 3, 1990 date of injury would have been due on April 1, 1992. Because notice was not given to the Second Injury Fund until May 7, 1992, a gap of at least five weeks in the claimant’s period of disability would have to be established in order for notice to qualify as timely in this case. BACK TO TEXT

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