CASE NO. 3634 CRB-04-97-04
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 5, 1998
MAACO OF GREATER BRIDGEPORT
The claimant was represented by John Blank, Esq., Blank & Blank, 853 Fairfield Avenue, Bridgeport, CT 06604.
The respondents were represented by Michael Tierney, Esq., 704 Stratfield Road, Fairfield, CT 06432.
This Petition for Review from the June 27, 1997 Finding and Award of the Commissioner acting for the Fourth District was heard February 20, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles
JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the June 27, 1997 Finding and Award of the Commissioner acting for the Fourth District. They argue on appeal that the trial commissioner erred by refusing to recharacterize certain temporary partial disability benefits already received by the claimant as permanent partial impairment benefits in conjunction with her approval of a Form 36. We affirm the trial commissioner’s decision.
The trier found that the claimant worked for the respondent Maaco on or about April 13, 1995, when he suffered an injury to his right foot. The respondents filed a Form 36 on February 14, 1996, indicating that the claimant was no longer totally disabled as per Dr. Katz, the treating physician. That Form 36 was approved effective that same day. On March 14, 1996, an independent medical examiner opined that the claimant had reached maximum medical improvement with a 15% permanent partial impairment of the right lower extremity. Dr. Katz concurred with that assessment on April 23, 1996. The respondents filed a second Form 36 on July 2, 1996, to which the claimant objected in an untimely manner. The respondents sought to recharacterize temporary partial disability benefits paid to the claimant after March 14, 1996 as advances against his specific indemnity benefits. The commissioner ruled that under § 31-296, the respondents could not recharacterize payments made before the July 2, 1996 approval date she gave to the Form 36. She noted that “[a]n attempt to recharacterize benefits before Notice of Intent to Discontinue or Reduce Benefits is unconscionable to the claimant and contrary to the spirit and letter of the Statutes.” The respondents have appealed that decision.
Section 31-296 C.G.S. states that an employer cannot discontinue or reduce payment on account of total or partial incapacity under any compensation agreement unless “the employer, if it is claimed by or on behalf of the injured person that his incapacity still continues, [notifies] the commissioner and the employee, by certified mail, of the proposed discontinuance or reduction and the reason therefor, and, such discontinuance or reduction shall not become effective unless specifically approved in writing by the commissioner.” We have held in many recent cases that the earliest date that a termination of benefits may become effective is the date on which the Form 36 is filed. Ryba v. West-Con, 3196 CRB-2-95-10 (Feb. 27, 1997); Torres v. Southern Connecticut Truck & Tire Center, 3144 CRB-3-95-8 (Feb. 5, 1997); Herwerth v. Groton, 3105 CRB-2-95-6 (Dec. 24, 1996), affirmed, 45 Conn. App. 922 (1997) (per curiam); Crowe v. DBD, Inc., 14 Conn. Workers’ Comp. Rev. Op. 283, 285, 1941 CRB-7-93-12 (Sept. 11, 1995); 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 benefits commence retroactively to the date of maximum medical improvement if it occurs prior to the filing date of the Form 36.” Torres, supra, citing Crowe, supra. We stress that § 31-296 expressly makes this Form 36 procedure applicable to payments that a claimant is receiving for either total or partial incapacity.
In the instant case, the commissioner found that the claimant received temporary partial benefits from February 14, 1996 through July 15, 1996 while he submitted job searches. One can infer from this finding that the claimant did not concede that his incapacity had ceased; by definition, a permanent partial disability rating implies that there will be some sort of permanent incapacity. As such, the claimant was entitled to notice under § 31-296 before his § 31-308(a) benefits were discontinued. The trial commissioner was correct in ordering that the maximum medical improvement date be treated as July 2, 1996 for administrative purposes.
The respondents argue that they should receive credit against the specific award for temporary partial disability payments made after the date of maximum medical improvement, which they identify as March 14, 1996 based on the medical reports. They contend that it is inconsistent with § 31-308(b) to require a Form 36 to be filed before temporary partial disability benefits may be discontinued in favor of permanent partial disability benefits, because a claimant is not entitled to § 31-308(a) benefits once he reaches maximum medical improvement. The explicit language of § 31-296 discussed above, which specifically refers to partial incapacity benefits, counsels otherwise.
The only type of partial incapacity benefits available under the Workers’ Compensation Act other than § 31-308(a) benefits are additional benefits for permanent partial disability under § 31-308a. However, § 31-308a did not come into effect until 1967, long after the “total or partial disability” language of § 31-296 was already in existence. Thus, the legislature had to have been referring to § 31-308(a) benefits when they used the phrase “total or partial incapacity” in § 31-296. We will not presume that the legislature enacted § 31-296 with a meaningless provision included in the statute. See Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 303 (1997). If a respondent wishes to reduce the alleged unjust enrichment that this Form 36 requirement may provide to a claimant, it should promptly file a Form 36 once a medical report is received stating that a claimant has reached maximum medical improvement. See Torres, supra (Nancy A. Brouillet, Commissioner, concurring).
The trial commissioner’s decision is accordingly affirmed.
Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.