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Herwerth v. City of Groton

CASE NO. 3105 CRB-2-95-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 24, 1996

GRAHAM HERWERTH

CLAIMANT-APPELLANT

v.

CITY OF GROTON

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Thomas B. Wilson, Esq., Suisman, Shapiro, Wool, Brennan & Gray, P.C., The Courtney Bldg., Tow Union Plaza, P. O. Box 1591, New London, CT 06320.

The respondent was represented by Mark O. Grater, Esq., Bartinik, Gianacoplos, Brown, Grater & Weiss, P.C., Century Professional Center, 100 Fort Hill Road, P. O. Box 942, Groton, CT 06340-0942.

This Petition for Review from the June 9, 1995 Finding and Award of Compensation Pursuant to C.G.S. 7-433c of the Commissioner acting for the Second 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 claimant has petitioned for review from the June 9, 1995 Finding and Award of Compensation Pursuant to C.G.S. 7-433c of the Commissioner acting for the Second District. He contends on appeal that the commissioner erred by granting the respondent’s Motion to Modify with a retroactive effective date. We agree, and reverse the trial commissioner’s decision.

The claimant, a now-retired police officer, had been receiving total disability benefits from the respondent as a result of an April 18, 1983 myocardial infarction. His treating physician, Dr. Rocklin, recommended bypass surgery, and a triple coronary artery bypass was performed by Dr. Shaw on October 17, 1989. Dr. Shaw continued to treat the claimant afterward, and commented on May 23, 1990 that he was satisfied with the claimant’s recovery and expected continued improvement. The claimant was subsequently monitored by Dr. Rocklin, who noted in 1991 that the claimant should try to lose some of the 80 pounds he had gained since surgery.

Dr. Dougherty, a cardiologist, examined the claimant in August 1993 and found he had light duty capability for selected sedentary work. He believed that the claimant had reached maximum medical improvement about three months after surgery, and had a 40 percent disability of the whole person as a result of his heart condition. Dr. Rocklin agreed with Dr. Dougherty as to the claimant’s work ability, and assigned the claimant a 60 percent heart impairment. The respondent then filed a Form 36 on September 22, 1993, seeking to discontinue benefits as of September 21, 1993. The Form 36 was approved at an informal hearing, and the commissioner recommended an October 28, 1993 maximum medical improvement date. The respondent filed a second Form 36 on January 6, 1994, seeking to stop the payment of compensation on January 4, 1994 because the claimant had reached maximum medical improvement on January 8, 1990. Another commissioner reaffirmed the October 28, 1993 date used at the prior hearing.

The respondent filed a Motion to Modify the previous decisions on December 14, 1994, seeking a finding that the claimant had reached maximum medical improvement on January 8, 1990 with a 50 percent permanent partial impairment of the heart, for which all benefits have been paid. The claimant opposed the motion, arguing that he was still totally disabled, and alternatively that the maximum medical improvement date should be no earlier than the date the Motion to Modify was filed. The commissioner found that the claimant had not been totally disabled since January 17, 1990, and that he was entitled to 468 weeks of permanent partial disability benefits for a 60 percent impairment of his heart, with credit given for payments made after January 17, 1990. The claimant has appealed that decision.

First, we note that the respondent filed a Motion to Dismiss on April 19, 1996 alleging that the claimant had filed late reasons for appeal. The claimant successfully requested an extension of time to file his reasons for appeal within 20 days of receipt of the commissioner’s decision on his Motion to Correct. According to the respondent’s Motion to Dismiss, the claimant received notice of denial of that motion on March 20, 1996. Reasons for Appeal were not filed until April 25, 1996, however, over two weeks after the April 9, 1996 due date.

Even though the respondent’s Motion to Dismiss was timely filed under Practice Book § 4056, we are not required to grant that motion. Brown v. Interstate Pallet Co., 3064 CRB-3-95-2 (decided Oct. 25, 1996). Late reasons for appeal make a petition for review voidable, not void. Sager v. GAB Business Services, Inc., 11 Conn. App. 693, 697 (1987). The claimant had filed an additional motion for extension of time to file reasons of appeal on April 22, 1996, claiming that the appellant’s attorney had been ill for several weeks; before the ruling denying that motion was even issued, the claimant had already filed his reasons of appeal. The respondent has shown no prejudice from this delay, either. We do not believe that these circumstances warrant dismissal of the appeal, and therefore deny the Motion to Dismiss.

If a claimant is receiving total or partial disability benefits under an award or agreement, and that claimant alleges that his incapacity continues to exist, an employer may not discontinue benefits without first filing a Form 36 prior to the proposed date of discontinuance. Stryczek v. State of Connecticut/Mansfield Training School, 14 Conn. Workers’ Comp. Rev. Op. 32, 34, 1765 CRB-2-93-6 (May 4, 1995); Platt v. UTC/Pratt & Whitney Aircraft Division, 3 Conn. Workers’ Comp. Rev. Op. 3, 7, 164 CRD-6-82 (Aug. 16, 1985). If the claimant objects to the Form 36 within the ten-day period of § 31-296 C.G.S., an informal hearing should be held as soon as possible where a ruling on the Form 36 can be issued. Normally, a trial commissioner should discontinue or reduce benefits effective on the date the Form 36 was filed, unless extenuating circumstances favor the use of a later date. Stryczek, supra, 34-35.

In this case, the respondent did not file a Form 36 until September 22, 1993. As the claimant maintained that his total disability continued, it would have been improper for a commissioner to retroactively discontinue the claimant’s total disability benefits prior to that date. Although the trial commissioner who considered the Motion to Modify was not bound by the findings of the commissioners at the informal hearings regarding the date of maximum medical improvement, see Anguish v. TLM, Inc., 14 Conn. Workers’ Comp. Rev. Op. 195, 196-97, 2286 CRB-7-95-1 (July 13, 1995), he was still prevented from discontinuing total disability payments effective prior to the date of the first Form 36. Crowe v. DBD, Inc., 14 Conn. Workers’ Comp. Rev. Op. 283, 285, 1941 CRB-7-93-12 (Sept. 11, 1995). It is also notable that both of the medical examinations that established a 1990 maximum medical improvement date were performed in the later months of 1993, leaving the claimant with no notice that his disability was being contested between 1990 and 1993. Therefore, the commissioner erred by ordering the commencement of permanent partial disability benefits effective on January 17, 1990.

The trial commissioner’s decision is reversed, and the case is remanded with direction that temporary total disability benefits not be discontinued until the date the first Form 36 was filed.

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

Workers’ Compensation Commission

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