CASE NO. 4371 CRB-4-01-3
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 8, 2002
CITY OF BRIDGEPORT
The claimant was represented by George Springer, Jr., Esq., Butler, Norris & Gold, 254 Prospect Avenue, Hartford, CT 06106.
The respondent was represented by Frank May, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.
These Petitions for Review from the March 2, 2001 Finding and Award of the Commissioner acting for the Fourth District were heard October 5, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and A. Thomas White, Jr.
JOHN A. MASTROPIETRO, CHAIRMAN. Both parties have petitioned for review from the March 2, 2001 Finding and Award of the Commissioner acting for the Fourth District. In that decision, upon remand from this board, the trial commissioner determined that the respondent overpaid the claimant $42,523.61 and ordered the claimant to repay this overpayment via a $100 reduction in the claimant’s weekly benefits. In support of his appeal, the claimant contends (1) that he was not mentally competent during the formal hearing in this matter; and (2) that an adjustment for inside overtime was not part of the respondent’s appeal. In its appeal, the respondent argues that the $100 weekly payment is too small and that interest is due on the $42,523.61 overpayment pursuant to § 31-301(g).
A brief procedural history is in order. In Czujak v. Bridgeport, 3535 CRB-4-97-2 (June 10, 1998), aff’d, 55 Conn. App. 789 (1999), cert. denied, 252 Conn. 920 (2000), the board set forth the facts as found by Commissioner Tracy in her January 31, 1997 decision, including that the claimant suffered a myocardial infarction on October 16, 1981 which caused considerable brain damage. The claimant was a regular member of the paid municipal police department of the city of Bridgeport, which entitled him to § 7-433c benefits. A Finding and Award was approved for the claimant’s accepted claim on November 27, 1984. The trier found that the claimant was entitled to the maximum compensation rate of $310.00 per week for his injury, subject to the § 7-433b(b) cap.1
Furthermore, after the award was approved, the claimant signed an accounting summary that specified a base compensation rate of $310 per week, with a $157.27 differential between the claimant’s retirement pension and full pay. He received weekly total disability payments of $157.27 from April 11, 1984 to July 1995, at which time they increased to $282.27. In the 1990 decision, Szudora v. Fairfield, 214 Conn. 552, 558-59 (1990), the court held that the term “weekly compensation” in § 7-433b(b) includes all forms of weekly remuneration, including overtime. Subsequently, in 1994, the claimant for the first time sought to adjust the cap on his benefits to account for the inclusion of inside and outside overtime payments made to Bridgeport patrolmen. However, no one attempted to modify the 1984 Finding and Award before the fall of 1994.
Based on Szudora, supra, and the board’s decision in Marone v. Waterbury, 3117 CRB-5-95-7 (Jan. 10, 1997), which had not yet reached the supreme court, the commissioner in her January 31, 1997 decision ordered that inside and outside overtime be included in the claimant’s § 7-433b(b) cap as of the April 1990 date of the Szudora decision. She also awarded the claimant an attorney’s fee and 6% interest for the respondent’s undue delay in payment of the outside overtime adjustments. In its June 10, 1998 decision, the board applied Marone v. Waterbury, 244 Conn. 1 (1998) and found that the trial commissioner had no authority to adjust the § 7-433b(b) cap as the claimant’s award was final in 1984. The board thus reversed the trier’s January 31, 1997 decision that inside and outside overtime should be included in the calculation of the § 7-433b(b) cap, and, of course, reversed the trier’s award of attorney’s fees and interest based on undue delay. Furthermore, in the June 10, 1998 decision, the board remanded the matter for a determination of the overpayment made to the claimant.
Pursuant to the board’s June 10, 1998 remand, the trial commissioner in the instant case determined that the respondent had overpaid the claimant $42,523.61 and that the “claimant does not dispute the overpayment figure of $42,523.61.” Findings, ¶ 15. The trial commissioner reviewed the claimant’s monthly expenses, his § 7-433c benefits, and his pension disability benefits, and ordered a $100 per week deduction in the claimant’s § 7-433c benefits until the $42,523.61 overpayment is complete.
We will now address the claimant’s argument on appeal that he was mentally incompetent at the time of the formal hearing, and thus the trial commissioner “erred in proceeding against the claimant and in issuing a Finding and Award.” Claimant’s Brief, p. 2. We find no error. The issue in the instant case was a determination of the overpayment, and the claimant does not dispute the determination of the $42,523.61 overpayment figure. Findings, ¶ 15. Furthermore, the claimant’s wife testified at the formal hearing regarding the finances, as she testified that she was the one in charge of the household finances. Moreover, the claimant has been competently represented by an attorney throughout these proceedings. We thus find no merit to the claimant’s argument that it was improper, based upon the claimant’s alleged mental incompetence, for the trial commissioner to issue a decision regarding the overpayment and repayment schedule.
Next, we will address the claimant’s argument that the trial commissioner erred in denying his Motion to Correct. The claimant did not brief this issue. Nevertheless, we have reviewed the Motion to Correct. In that motion, the claimant requested a finding that his § 7-433c payments and his disability pension payments are not sufficient to pay his monthly expenses. To the contrary, the record supports the trial commissioner’s findings that the claimant received $3,859.11 monthly in combined pension disability payments and § 7-433c payments, with household monthly expenses of $2,100.00.
We will now address the claimant’s final argument that “Payments to the claimant as adjustments for inside overtime were not subject to the respondent’s appeal.” Claimant’s Brief, p. 3. The claimant did not brief this argument, but instead refers the board to his brief before the trial commissioner. We find no merit to the claimant’s argument. In the board’s June 10, 1998 decision, the case was remanded for a determination of an overpayment for “benefits paid by the respondent without prejudice for inside overtime. . . .” Czujak, supra, (emphasis added). There has been no written agreement approved by a trial commissioner wherein the respondent agreed with prejudice to pay the claimant based on a cap adjusted for inside overtime. Rather, the procedural history of this case clearly indicates that the adjustment of the § 7-433b(b) cap based on overtime, whether inside or outside overtime, has been diligently contested by the respondent. The fact that the respondent made some payments without prejudice based upon a higher cap which included inside overtime2 certainly did not preclude the respondent from pursuing its legal argument that no overtime should be included in the cap.
We will now address the respondent’s issues on appeal. The respondent argues that the weekly $100 reduction in the claimant’s benefits is too small. This determination, however, falls within the discretion of the trial commissioner as the trier of fact. See § 31-301(g). Here, the trier considered all of the relevant information presented during the formal hearing, including the monthly expenses and income of the claimant’s household. Although the respondent argues that the $100 payment is too small, we do not find it to be an abuse of the trial commissioner’s discretion, and thus we must affirm it.
Lastly, we turn to the respondent’s argument that the claimant is required to pay interest on the $42,523.61 overpayment pursuant to § 31-301(g). That section provides:
If the final adjudication results in the denial of compensation to the claimant, and he has previously received compensation on the claim pursuant to subsection (f)3 and this subsection, the claimant shall reimburse the employer or its insurer for all sums previously expended, plus interest at the rate of ten per cent per annum. Upon any such denial of compensation, the commissioner who originally heard the case or his successor shall conduct a hearing to determine the repayment schedule for the claimant.
Section 31-301(g) provides that the claimant must reimburse the employer, with interest, if the final adjudication results in the denial of compensation to the claimant. In the instant case, the claimant was paid benefits by the respondent based upon a § 7-433b(b) benefit cap which included overtime, which was found to be incorrect by the board in its June 10, 1998 decision. The claimant disputed that decision and appealed it to both the Appellate and Supreme Courts, with the final adjudication regarding the benefit cap occurring on January 19, 2000 when the Supreme Court denied certification of the claimant’s appeal. See Marone, supra. Accordingly, pursuant to § 31-301(g), interest must be paid on the $42,523.61, with interest owing as of January 19, 2000.
The trial commissioner’s decision is affirmed.
Commissioners Ernie R. Walker and A. Thomas White, Jr. concur.
1 The relevant portion of § 7-433b(b) states that “the cumulative payments, not including payments for medical care, for compensation and retirement or survivors benefits under section 7-433c shall be adjusted so that the total of such cumulative payments received by such member or his dependents or survivors shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his death or retirement.” BACK TO TEXT
2 The respondent notes in its brief that it made such payments without prejudice at the urging of a trial commissioner while the matter was being contested. Respondent’s Brief dated 8/23/01, p. 5, fn.1. BACK TO TEXT
3 Section 31-301(f) provides:
During the pendency of any appeal of an award made pursuant to this chapter, the claimant shall receive all compensation and medical treatment payable under the terms of the award to the extent the compensation and medical treatment are not being paid by any health insurer or by any insurer or employer who has been ordered, pursuant to the provisions of subsection (a) of this section, to pay a portion of the award. The compensation and medical treatment shall be paid by the employer or its insurer. BACK TO TEXT