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Torres v. Southern Connecticut Truck & Tire Center

CASE NO. 3144 CRB-3-95-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 5, 1997

IVAN TORRES

CLAIMANT-APPELLANT

v.

SOUTHERN CONNECTICUT TRUCK & TIRE CENTER

EMPLOYER

and

FIREMAN’S FUND INS. CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Andrew P. Dwyer II, Esq., Mihaly & Kascak, 925 White Plains Road, Trumbull, CT 06611.

The respondents were represented by Maureen Closson, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066.

This Petition for Review from the July 24, 1995 Finding on Specific Benefits of the Commissioner acting for the Third District was heard May 24, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Robin L. Wilson and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the July 24, 1995 Finding on Specific Benefits of the Commissioner acting for the Third District. He argues on appeal that the commissioner erred in determining the effective date of the respondents’ Form 36 and the consequent date that permanent partial disability benefits became payable. We reverse the trial commissioner’s decision.

The claimant sustained an injury to his right hand during the course of his employment with the respondent on March 6, 1991. The respondent insurer accepted liability for the injury. On December 13, 1993,1 the respondents filed a Form 36 seeking to terminate the claimant’s temporary total disability benefits. The claimant objected to the Form 36, and an informal hearing was held on January 26, 1994, where the commissioner approved the Form 36. The claimant alleged below that his attorney and the respondents’ attorney agreed that permanent partial disability benefits would commence on January 26, 1994, the approval date of the Form 36. The respondents deny making that agreement. Instead, they assert that the trial commissioner’s Finding and Award dated February 15, 1995 is controlling on that issue. There, the commissioner cited Dr. Goodkind’s report, which rated the claimant at 40 percent permanent partial disability with a maximum medical improvement date of July 28, 1992. The commissioner accepted that opinion, and found that the claimant reached maximum medical improvement as of July 28, 1992.

Taking administrative notice of the February 15, 1995 Finding and Award, the commissioner ruled that there was no dispute regarding the actual maximum medical improvement date. He concluded that the claimant’s permanent partial disability benefits should have commenced on July 28, 1992, with the respondents taking an appropriate credit for overpayment of temporary total disability benefits. The claimant has appealed that decision to this board.

An injured worker has the right to receive a permanent partial disability award once he or she reaches maximum medical improvement. McCurdy v. State, 227 Conn. 261, 268 (1993). The commissioner is not bound to cease payment of temporary total disability benefits as soon as maximum medical improvement is reached, however. He has the discretion to continue total disability payments where appropriate, as long as the injured worker has not requested a permanency award. Id., 268-69; Osterlund v. State, 129 Conn. 591, 597-600 (1943). Where an employer disagrees with a claimant’s contention that he or she is entitled to continuing total disability payments, it must file a Form 36 before discontinuing payment of total disability benefits. Section 31-296 C.G.S.; Herwerth v. City of Groton, 3105 CRB-2-95-6 (decided Dec. 24, 1996).

Here, the respondents filed a Form 36 with the district office on December 13, 1993, citing Dr. Goodkind’s report as the basis of its request to discontinue total disability benefits.2 The claimant objected to the Form 36, and a hearing was accordingly held. Our cases require that a respondent notify the commissioner and employee of a proposed discontinuance of benefits before the date of the proposed discontinuance. Platt v. UTC/Pratt & Whitney Aircraft Div., 3 Conn. Workers’ Comp. Rev. Op. 3, 7, 164 CRD-6-82 (Aug. 16, 1985). The earliest date that a termination of benefits may become effective is the date on which the Form 36 is filed. Stryczek v. State of Connecticut/Mansfield Training Center, 14 Conn. Workers’ Comp. Rev. Op. 32, 34, 1765 CRB-2-93-6 (May 4, 1995). Although the commissioner may determine that a later date is more appropriate, he cannot make permanent partial disability payments commence retroactively to the date of maximum medical improvement if it occurs prior to the filing date of the Form 36. Crowe v. DBD, Inc., 14 Conn. Workers’ Comp. Rev. Op. 283, 285, 1941 CRB-7-93-12 (Sept. 11, 1995). This is so despite the case law cited by the respondents stating that a claimant should stop receiving total disability benefits as soon as possible after his or her incapacity ceases; Stryczek, supra; the respondent is still charged with making timely requests to discontinue payment of benefits.

The claimant also cites an alleged agreement between claimant’s and respondents’ counsel to make the Form 36 effective as of January 26, 1994. This agreement was referred to by another attorney for the claimant at a hearing on June 9, 1995. We cannot say that the commissioner was required to accept this testimony and presume the existence of such an agreement from it. Thus, the commissioner did not err in not finding that such an agreement existed. However, he did err in allowing the respondents to take credit for permanent partial disability payments beginning on July 28, 1992. Even though there is no dispute with his finding that maximum medical improvement occurred on that date, as discussed above, the commissioner was not permitted to order the cessation of total disability benefits before December 13, 1993, the date the respondents’ Form 36 was filed. Therefore, we reverse the commissioner’s decision, and hold that approval of the Form 36 be ordered effective as of December 13, 1993.

Commissioners Robin L. Wilson concurs.

NANCY A. BROUILLET, COMMISSIONER, CONCURRING. Although I agree with the result reached by the majority, I write separately to clarify my reasoning. In Stryczek, supra, this panel held that “in granting a Form 36, a trial commissioner should discontinue or reduce benefits effective on the date the Form 36 was filed, unless extenuating circumstances dictate that a later date is more appropriate.” Id., 34.

There are limited situations where a Form 36 should be approved retroactively, however. For example, if the claimant returns to work, temporary total disability should be discontinued effective on the date of the return to work, even if a Form 36 is not filed until later. Kelley v. New England Railroad, 15 Conn. Workers’ Comp. Rev. Op. 206, 2274 CRB-2-95-1 (April 23, 1996) (retroactive approval of Form 36 not erroneous, as claimant did not object or allege continuing incapacity). Likewise, if an award of permanent partial disability paid pursuant to an approved voluntary agreement ends, a Form 36 should not be required. Cf. Landry v. North American Van Lines/Transtar, Inc., 1971 CRB-2-94-2 (decided Aug. 16, 1996) (claimant’s term of light duty ended once he left work, as did his period of partial incapacity; thus, entitlement to benefits ceased immediately). As this board recognized in Stryczek, the legislature intended that a claimant should stop receiving temporary total disability benefits as soon as possible after his or her incapacity ceases, effective on the date the incapacity ceases. Id., 34.

Moreover, § 31-296 provides in relevant part: “Before discontinuing or reducing payment on account of total or partial incapacity under any [voluntary] agreement, the employer, if it is claimed by or on behalf of the injured person that his incapacity still continues, shall notify the commissioner and the employee, by certified mail, of the proposed discontinuance or reduction of such payments . . . .” (Emphasis added). This section presumes a good faith contest of the Form 36 with some reasonable basis for opposing the Form 36.

The equities of the instant matter mandate that the Form 36 not be approved prior to the date of filing of December 13, 1993. While the claimant reached maximum medical improvement on July 28, 1992, he alleged that he continued to be totally disabled. As the trial commissioner ultimately rejected this claim, the claimant does receive the benefit of the payment of the additional weeks of compensation. A commissioner simply cannot order permanent partial disability payments to commence retroactively to the date of maximum medical improvement if it occurs prior to the filing of the Form 36. Herwerth, supra; Crowe, supra. However, a respondent can reduce this claimed unjust enrichment by promptly filing a Form 36 once a medical report effecting the claimant’s disability status is received.

The Workers’ Compensation Act should be broadly construed to accomplish its humanitarian purpose. Kinney v. State, 213 Conn. 54, 58-59 (1989). Mindful of that purpose, a Form 36 should not be approved prior to the date it is filed with this Commission, absent an actual return to work or fraud.

1 The Form 36 was dated December 7, 1993, but was not received by the Third District office until December 13, 1993. Thus, the latter date is the operative filing date for the Form 36. BACK TO TEXT

2 The respondents maintain that they also filed a Form 36 in January of 1993, but that it was never ruled on by the commissioner. This Form 36 is not part of the case file, and was not placed into evidence by the respondents. Thus, we will not consider it in the merits of our decision. We note, however, that a Form 36 that is held in abeyance by a trial commissioner should not remain unaddressed for more than 30 days. At that point, the commissioner should schedule a hearing on the request to discontinue payments. As we stated in Stryczek v. State of Connecticut/Mansfield Training School, 14 Conn. Workers’ Comp. Rev. Op. 32, 34-35, 1765 CRB-2-93-6 (May 4, 1995), a hearing on the discontinuation of benefits should be completed as soon as possible after a claimant objects to a Form 36, and a decision should ensue quickly. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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