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Infante v. Mansfield Construction

CASE NO. 3067 CRB-4-95-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 18, 1996

MICHAEL INFANTE

CLAIMANT-APPELLEE

v.

MANSFIELD CONSTRUCTION

EMPLOYER

and

ZURICH-AMERICAN INS. GROUP

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Daniel Shepro, Esq., and Janine Becker, Esq., Willinger, Shepro, Tower & Bucci, P.C., 855 Main St., Bridgeport, CT 06605.

The respondents were represented by Kevin J. Maher, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430.

This Petition for Review from the May 15, 1995 Finding and Award of the Commissioner acting for the Fourth District was heard June 14, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the May 15, 1995 Finding and Award of the Commissioner acting for the Fourth District. In that decision, the commissioner found that the claimant was injured in an automobile accident on November 19, 1986, and that the respondent insurer had been paying temporary total disability benefits to the claimant on account of that injury for 6½ years, even though a voluntary agreement had never been completed. The respondents stopped making payments on June 26, 1993, without filing a Form 36. They had agreed to pay for certain improvements to the claimant’s home to facilitate his incapacity, but had failed to do so. They had also discontinued payments to the nursing and physical therapy services that the claimant had been using at the direction of his physicians, and had stopped paying the claimant’s prescriptions and medical bills.

The commissioner specifically found all paid and unpaid charges to be reasonable, as they had not been challenged by the respondents. He ruled that the insurer had completely failed to produce any credible evidence that the claimant was not in the course of his employment at the time of his injuries, noting that they had accepted the claim years earlier. He also found that the respondents had failed to produce credible evidence that there was a mutual mistake in computing the claimant’s compensation rate, and denied their Motion to Modify. He concluded that the claimant’s injury was indeed compensable, and ordered the respondents to pay the claimant temporary total disability benefits from June 27, 1993 to date at the rate of $166.67 per week plus cost of living adjustments, continuing until a Form 36 is approved by a trial commissioner. He also ordered the respondents to pay statutory interest and attorney’s fees for unilaterally discontinuing benefits and unreasonably contesting the claim pursuant to § 31-300 C.G.S. Finally, he ordered the respondents to pay all outstanding medical bills and to reimburse the claimant for the cost of the improvements to his home that they had previously agreed to pay for. The respondents then appealed that decision, along with the denial of their Motion to Correct.1

Firstly, the respondents challenge the commissioner’s conclusion that the injury was compensable at all, contending that it did not arise out of and in the course of the claimant’s employment. The main problem with this line of defense is that the respondents did nothing to contest the compensability of the claimant’s injury for over six years, a fact the commissioner mentioned repeatedly in his findings.

Admin. Reg. § 31-296-2 allows an employer or insurer who doubts the causal connection between employment and injury to make payment without prejudice, so long as both the claimant and commissioner are notified as such, a formal notice of intent to contest liability (Form 43) accompanies such notice, and the payments without prejudice extend not more than six weeks. There is no evidence that a Form 43 was ever filed in this case. Moreover, the respondents stopped noting in February of 1987 that the claimant’s payments were being made without prejudice, and continued to make such payments for many years afterward. (Claimant’s Exhibit J). The commissioner found that they had indeed accepted the compensability of the claim. This is clearly borne out by the record, and by the commissioner’s findings as to the length of time between the injury and the attempt to contest liability. We need look no further into the circumstances of the claimant’s injury, as the finding of compensability is affirmed.

Next, we turn to the respondents’ argument that the commissioner erred by ordering the respondents to pay the bills for certain services obtained by the claimant, especially the improvements to his home. The respondents argue that the language in § 31-294 [now § 31-294d] requiring the employer to “furnish such medical and surgical aid or hospital or nursing service, including medical rehabilitation services, as such physician or surgeon deems reasonable or necessary” does not encompass items such as custom vans and home modifications, as these are not medical services.

Despite the respondents’ objections, it is perfectly clear from Claimant’s Exhibit A that a representative of the respondent insurer specifically agreed to pay for these items. This situation is similar to Valentino v. United Parcel Service, 13 Conn. Workers’ Comp. Rev. Op. 142, 1907 CRB-4-93-11 (February 1, 1995), where this board held that an insurer had to honor its agreement to compensate family members for their home caregiving services. Even though the relevant statute did not require the insurer to compensate the family for its services, it also did not prevent the employer from agreeing to do so. The very same principle applies here: the respondents did not have the right to breach their agreement to pay for home improvements simply because they were arguably not compelled to make those payments under § 31-294d. As the commissioner found all of the charges to be reasonable, we see no obstacle to his order that the respondents reimburse the claimant for the cost of the items they agreed to provide.

Finally, the respondents challenge the commissioner’s denial of their Motion to Modify the claimant’s compensation rate. The commissioner found that the insurer initially paid the claimant $166.67 per week after reviewing his earnings, based on a wage statement showing that the claimant worked only two weeks prior to the accident and made a total of $500. After paying at this rate for 6 or 7 years, the insurer sought to modify that rate, but failed to persuade the commissioner that a mutual mistake had occurred in regard to the compensation rate. Although the commissioner could have exercised his discretion to grant the motion to modify pursuant to § 31-315 C.G.S. had he found a mutual mistake of fact, he did not find that such an error had occurred. See Ericson v. Perreault Spring & Equipment Co., 9 Conn. Workers’ Comp. Rev. Op. 171, 173, 1008 CRD-5-90-4 (July 17, 1991). The respondents have not shown that this finding was arbitrarily reached, having offered little evidence to establish that the parties were operating under a mistaken understanding of the facts at the time the respondents began paying compensation. Accordingly, there was no error in the commissioner’s denial of the Motion to Modify the compensation rate.

The trial commissioner’s decision is affirmed.

Commissioners George A. Waldron and Robin L. Wilson concur.

1 The claimant filed a Motion to Dismiss the appeal on the ground that the respondents’ Reasons for Appeal were filed more than ten days after their petition for review. See Admin. Reg. § 31-301-2. Prior to the filing of that motion, and immediately after the petition for review was filed, the respondents filed a Motion for Extension of Time requesting three weeks beyond the ruling on their Motion to Correct to file Reasons of Appeal, which was granted on June 22, 1995. As that time constraint was not disregarded by the respondents, we deny the claimant’s Motion to Dismiss the appeal. BACK TO TEXT

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