CASE NO. 3114 CRB-7-95-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 10, 1997
ST. JOSEPH’S MEDICAL CENTER
SECOND INJURY FUND
The claimant did not appear at oral argument.
The employer was represented by James Baldwin, Esq., formerly of Cotter, Cotter & Sohon, P.C., 500 Boston Post Rd., Milford CT 06460.
The respondent Second Injury Fund was represented by Michelle Truglia, Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the June 28, 1995 Finding and Award of the Commissioner acting for the Seventh District was heard June 14, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Robin L. Wilson.
JESSE M. FRANKL, CHAIRMAN. The respondent Second Injury Fund (“Fund”) has petitioned for review from the June 28, 1995 Finding and Award of the Commissioner acting for the Seventh District. In that decision, the trial commissioner determined that the employer provided timely notice to the Fund pursuant to § 31-349. In support of its appeal, the Fund contends that the employer failed to provide timely notice to the Fund. Specifically, the Fund contends that for purposes of the notice provision of § 31-349, the trial commissioner failed to include the period during which the claimant had returned to light duty work at her same rate of pay.
The trial commissioner found the following relevant facts. On April 12, 1988 the claimant sustained a compensable injury to her leg while working for the respondent employer. The claimant suffered from a preexisting degenerative condition which made the injury materially and substantially greater. The claimant was temporarily totally disabled from April 13, 1988 through September 18, 1989. On September 19, 1989 the claimant returned to light duty work at the same pay and the same number of hours as prior to her April 12, 1988 injury. The employer filed a notice with the Fund of its intent to transfer the claim pursuant to § 31-349 on April 12, 1990. In determining the 104 week notice period contained in § 31-349, the trial commissioner did not include the period of approximately twenty-seven weeks from September 18, 1989 through April 1, 1990.
Section 31-3491 (Rev. to 1987) provides in relevant part: “As 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 . . . .” We have stated that “(s)trict compliance with this provision is required in order to transfer liability under this section.” Pereira v. Taylor & Fenn Company, 14 Conn. Workers’ Comp. Rev. Op. 16, 17, 1816 CRB-1-93-8 (April 28, 1995) (citing Plesz v. United Technologies Corporation, 174 Conn. 181, 186-88 (1978); Kiernan v. Roadway Express, Inc., 15 Conn. App. 625, 630 (1988); Reising v. General Dynamics/Electric Boat Division, 13 Conn. Workers’ Comp. Rev. Op. 40, 1609 CRB-2-92-12 (Dec. 6, 1994)). The Connecticut Supreme Court has held that the 104 week notice period refers not to the number of weeks of benefits paid to the claimant, but rather to the “first one hundred four weeks of the claimant’s disability.” Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 391 (1993).
The Fund contends that the employer’s notice was untimely because the claimant’s period of light duty employment from September 18, 1989 through April 1, 1990 should be counted in determining the 104 week period under § 31-349. The Fund contends that the claimant was continuously disabled from the date of injury, April 12, 1988. Thus, in the Fund’s view, the 104 week period expired on April 8, 1990 and the notice had to have been filed ninety days prior, by January 9, 1990. (Fund’s Brief at 3). The Fund relies on Vaillancourt, supra, and Lillo v. Dichello Distributors, 14 Conn. Workers’ Comp. Rev. Op. 1, 1843 CRB-3-93-9 (April 28, 1995) in support of its contention that the claimant was continuously disabled throughout that period, and that the notice was untimely filed as a result.
The Fund’s reliance on Lillo, supra, is misplaced. In that case, the Compensation Review Board affirmed the trial commissioner’s determination that the claimant was disabled during a period in which he was “unable to return to his previous position” due to medical restrictions and had returned to a different light duty position at a reduced rate of pay. Lillo, supra, at 2. Similarly, the Vaillancourt decision does not mandate a reversal of the trial commissioner. In that case, the court rejected the argument that twenty-four weeks should not be included in the determination of the 104 week period under § 31-349 because the employer and its insurer had recouped the benefits paid during that period from a third party law suit. The court concluded that the 104 week period refers to the first 104 weeks “of the claimant’s disability, not to the number of weeks the claimant’s employer has paid out-of-pocket benefits.” Vaillancourt, supra, at 393. Furthermore, the court stated “our decision today is narrow, and does not address issues not yet before this court.” Id. fn. 10.
Our Supreme Court has repeatedly stated that the “power and duty of determining the facts rests on the commissioner, the trier of facts.” Six v. Thomas O’Connor & Co., 235 Conn. 790, 798 (1996). “The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Id. at 799. Moreover, the court has stated:
It is likewise immaterial that the facts permit the drawing of diverse inferences. The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court....
Six, supra, at 799 (citations omitted).
In the instant case, there is sufficient evidence in the record to support the trial commissioner’s determination that the claimant was not disabled during the period from September 18, 1989 through April 1, 1990. Specifically, the trial commissioner found that the claimant was returned to work at her former position as a housekeeper at her regular rate of pay2, and thus concluded that she was not entitled to any benefits, including benefits under § 31-308a.3 In contrast, in Lillo, supra, the claimant was unable to perform his old job and therefore returned to a totally different position as a janitor at a much reduced rate of pay. Based upon the trial commissioner’s findings of fact and reasonable inferences based upon those facts, we conclude that the trial commissioner properly determined that the claimant was not disabled within the meaning of § 31-349 during the period at issue.
The trial commissioner’s decision is affirmed.
Commissioners George Waldron and Robin L. Wilson concur.
1 We note that the notice provision of 31-349 was recently amended by P.A. 95-277, §3 and by P.A. 96-242, §1. BACK TO TEXT
2 The Fund argues in its brief that the employer seeks to extend the 104 week notice period by “intentionally depriving the claimant of actual wage loss during a period of temporary partial disability.” (Fund’s Brief at p. 7). We find no merit to this argument. We note that a claimant’s return to work when he is medically able to so return is an important goal in workers’ compensation. BACK TO TEXT
3 We note that the case of Pereira, supra, is distinguishable from the case at hand. In Pereira, the board determined that the claimant was disabled, pursuant to the notice provision of § 31-349, during a period that he was not eligible to receive partial benefits pursuant to § 31-308a. The board explained that the claimant had waived his eligibility for such benefits by failing to conduct a light duty job search. BACK TO TEXT