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Weich v. Goss & DeLeeuw Machine Co.

CASE NO. 2040 CRB-6-94-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 5, 1998

LARRY WEICH

CLAIMANT-APPELLEE

v.

GOSS & DELEEUW MACHINE CO.

EMPLOYER

and

ORION GROUP

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was not represented at oral argument. He was represented at the formal hearing by Neil Johnson, Esq., 250 Hudson St., Hartford, CT 06106.

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

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

This Petition for Review from the April 29, 1994 Findings of Facts and Award of Compensation of the Commissioner acting for the Sixth District was heard March 10, 1995 before a Compensation Review Board panel consisting of Commissioners George S. Waldron, Roberta S. D’Oyen (Tracy) and Amado J. Vargas.

OPINION

GEORGE S. WALDRON, COMMISSIONER. The respondents have petitioned for review from the April 29, 1994 Findings of Facts and Award of Compensation of the Commissioner acting for the Sixth District. They argue on appeal that the trier erroneously found that their notice to the Second Injury Fund was untimely. We affirm the trial commissioner’s decision.

The claimant sustained two compensable back injuries. The first occurred on January 19, 1987; the second, on August 17, 1987. Following the second injury, the claimant was totally disabled until January 28, 1988. The commissioner concluded from certain medical reports that the claimant was capable of light duty work and partially disabled after January 28, 1988. This status continued until January 3, 1989, when the claimant was again totally disabled by Dr. Krompinger. After surgery in February, he remained totally disabled until the doctor returned him to work on August 20, 1989 with a 40-pound lifting limit. Dr. Krompinger assessed him with a twenty percent permanent partial impairment on November 16, 1989, the claimant’s date of maximum medical improvement. The claimant endured one additional period of total disability, from November 28, 1990 until January 14, 1991, before being authorized to return to work.

The commissioner concluded from these facts that the respondents’ February 6, 1990 notice to the Second Injury Fund was untimely under § 31-349 C.G.S. He calculated that the one hundred fourth week of disability occurred on or about August 16, 1989, and that notice was due at least 90 days before that date under the statute. The respondents’ argument that the claimant did not make a claim for benefits between January 21, 1988 and February 9, 1989 did not persuade the trial commissioner otherwise, as he interpreted Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382 (1993), as requiring him to include that period in the 104 weeks of disability.

Our Supreme Court has recently issued a decision that is dispositive of this case. In Innocent v. St. Joseph’s Medical Center, the Court stated that “disability” under § 31-349 “refers to a claimant’s degree of medical impairment, rather than the inability to work or loss of earning capacity.” Even though the claimant in that case had returned to light duty work at full pay, thus entitling her to no disability benefits, the Court held that the period she worked light duty had to be included in the calculation of the one-hundred-four-week period under § 31-349. As notice of the respondents’ intent to transfer liability for the claimant’s injury was not provided to the Second Injury Fund by the expiration of the ninetieth day prior to the running of the 104 weeks, the claim for transfer had to be denied as untimely. In ruling as such, the Court overruled the conclusion of the trial commissioner, as well as this board’s affirmation of the trier’s decision. See Innocent, 3114 CRB-7-95-7 (decided Jan. 10, 1997). The Court cited Vaillancourt, supra, Six v. Thomas O’Connor & Co., 235 Conn. 790 (1996), and Williams v. Best Cleaners, 237 Conn. 490 (1996), in support of its holding in Innocent.

Given that decision, our course of action here is greatly circumscribed. The trial commissioner stated in his conclusions that the claimant’s failure to seek compensation for the disputed period was immaterial because he still may have been entitled to compensation under § 31-308(a) C.G.S. The trier also made a finding that the claimant might have been entitled to benefits for that period “due to his partial disability after his second injury.” He declined to change that finding in ruling on the respondents’ Motion to Correct, relying instead on three separate medical reports dated January 21, 1988, January 28, 1988, and August 2, 1988, each corroborating the claimant’s light duty capability during that time. The claimant also had a light duty job on October 3, 1988. The respondents challenge the conclusion that the claimant was disabled between January 21, 1988 and February 9, 1989, because he made no claim and was paid no benefits during that time. In light of Innocent, that argument must fail.

Where there is evidence to support a commissioner’s conclusion regarding the dates of a claimant’s disability, this board should not interfere with that finding. Marano v. Timex Corp., 14 Conn. Workers’ Comp. Rev. Op. 207, 209, 1774 CRB-5-93-7 (July 27, 1995), citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); see also, Six, supra, 799 (the commissioner alone is charged with drawing the inferences from the evidence that he finds most reasonable). There is evidence to support the commissioner’s decision that the claimant was disabled during the interval in question here. Pursuant to Innocent, that period of disability must be counted in the statutory 104 weeks. Thus, we must affirm the trial commissioner’s decision that notice to the Fund was untimely.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

Workers’ Compensation Commission

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