State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Matey v. Estate of Sarah Dember

CASE NO. 4532 CRB-05-02-05

CASE NO. 4488 CRB-07-02-02

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 14, 2003

MARY LOU MATEY

CLAIMANT-APPELLANT

v.

ESTATE OF SARAH DEMBER

EMPLOYER

NO RECORD OF INSURANCE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Laurence Parnoff, Esq., 1566 Park Avenue, Bridgeport, CT 06604.

The Estate of Sarah Dember did not appear in proceedings before the trial commissioner, nor in proceedings before the Compensation Review Board. Courtesy copy sent to Gary Ginsberg, Esq., 377 Main Street, West Haven, CT 06516, and Jerome Schweitzer, Esq., 555 Forest Road, Orange, CT 06477.

The Second Injury Fund was represented by Michelle D. Truglia, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

These Petitions for Review from the January 29, 2002 and May 20, 20021 Finding and Awards of the Commissioner acting for the Seventh District were heard November 22, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The extensive history of prior proceedings pertaining to this claim were well described in the Supreme Court’s opinion in Matey v. Dember, 256 Conn. 456 (2001). Insofar as it relates to this appeal the pertinent procedural history begins with the claimant’s automobile accident occurring August 9, 1984 in which the claimant was injured. The automobile accident arose out of and in the course of the claimant’s employment as a home care aide to an elderly woman, Sarah Dember. On October 13, 1984 Sarah Dember died. The claimant in this matter did not file a claim for Workers’ Compensation benefits until July 8, 1985. Counsel for Sarah Dember’s estate notified the Workers’ Compensation Commission that the executors were denying the claim on the basis that the claimant was not Sarah Dember’s employee and that the claim was barred by order of the Probate Court.

The Second Injury Fund was then involved in the matter by virtue of its statutory charge set out in § 31-355. Sec. 31-355 confers liability for the payment of compensation to the Fund when an employer is unable or fails to pay benefits.2 In its opinion in Matey, supra, the Supreme Court concluded, inter alia, the Second Injury Fund was liable for payments which would otherwise be the employer’s responsibility but for its legal incapacity.3

However, an additional wrinkle was added when the claimant settled her third party civil suit against the city of Waterbury. The Fund claimed it was entitled to reduce the amount of claimant’s award under the Workers’ Compensation Act pursuant to § 31-355 by the amount of her recovery in the third party action. The Fund’s right to intervene in the civil suit pursuant to § 31-293 was ultimately determined in the Supreme Court’s opinion in Matey, supra. The court held that the Fund was entitled to consideration of its claims for a credit pursuant to § 31-293. Following the Supreme Court’s opinion in Matey, supra, additional proceedings were held in the Seventh District. While the commissioner’s January 29, 2002 Finding and Award reflects a number of issues presented, the commissioner’s Finding and Award was limited to a determination of what benefits, if any, were due the claimant for the period from July 1, 1995 through December 31, 2001.

The commissioner determined that the claimant was totally disabled from July 1, 1995 through December 31, 2001 and was entitled to temporary total benefits in the amount of $175, 219.38.4 On February 4, 2002 the Second Injury Fund filed a Motion to Correct5 which the commissioner granted on that same date. On February 7, 2002 the claimant filed a Motion to Correct and a Petition For Review. Portions of the claimant’s Motion to Correct were granted by the commissioner in his May 2, 2002 Order. On May 16, 2002 the Fund filed a Petition for Review and Motion to Correct in which the Fund sought clarification of the trier’s granting of Paragraph 10 of the claimant’s Motion to Correct Finding and Award filed February 7, 2002 that correction amended paragraph 10 so as to read:

By finding the claimant to be entitled to temporary total disability payments from August 9, 1984 to June 30, 1995, minus any set-off to which the Second Injury Fund may be entitled to under Conn. Gen. Stat. Sec. 31-293.

On June 7, 2002 the Fund withdrew its appeal from the Commissioner’s May 2, 2002 order relating to the claimant’s Motion to Correct filed February 7, 2002. On May 20, 2002 the commissioner issued another Finding and Award in which he concluded the claimant was temporary totally disabled from January 1, 2002 until June 30, 2002. On May 28, 2002 claimant petitioned for review from the trier’s May 20, 2002 Finding and Award.6 The claimant’s appeal from the May 20, 2002 presents many of the same issues raised in claimant-appellant’s appeal from the January 29, 2002 Finding and Award and thus we consider them together.

The issues before us today are (1) whether the trial commissioner erred in his calculation of the claimant’s compensation rate, (2) whether the trial commissioner erred in finding the claimant totally disabled through December 31, 2001 (3) whether the claimant was entitled to interest pursuant to § 31-300 and § 31-303.7

Our understanding of the proceedings and rulings of the commissioner pertinent to the appeal issues remaining on review are as follows. On January 29, 2002 the Commissioner Acting for the Seventh District issued a Finding and Award in which he concluded that the claimant was entitled to temporary total disability benefits with appropriate Cost of Living Adjustments [COLAs] for the period from July 1, 1995 through December 31, 2001. The trial commissioner denied the claimant’s request for interest and penalties against the Second Injury Fund. On May 20, 2002 the trial commissioner issued another Finding and Award in which he found the claimant entitled to temporary total disability benefits from January 1, 2002 until June 30, 2002. We begin our review by considering whether the trial commissioner properly calculated the temporary total disability benefits including COLAs to which the claimant was entitled to during this period. In her brief the claimant contends the trial commissioner’s calculation of her compensation rate was incorrect. We agree but not for the reasons proffered by the claimant. In fact our computation of the benefits for which the claimant was entitled between July 1, 1995 and December 31, 2002 and the amount calculated by the trier differ marginally. The trier concluded that the claimant was entitled to $175,219.38; our calculation finds that the claimant was entitled to $179,849.24. As we noted in Meyer v. Raybestos Products Co., 3610 CRB-8-97-5 (October 20, 1998), “the method of calculating those COLAs expressly requires a comparison between the maximum weekly wage on the date of injury with the maximum weekly wage applicable to the year in which [the claimant] is currently entitled to benefits.” In the instant case this requires a calculation of the COLA for each October 1 following the claimant’s date of injury and applying that annual adjustment to the claimant’s base compensation rate of $276.66.8

The next issue for consideration is whether the trier erred in concluding that the claimant was totally disabled for the period from July 1, 1995 to December 31, 2001. We note that following the trier’s January 29, 2002 Finding and Award the trier issued a Finding and Award May 20, 2002 in which he concluded that the claimant was entitled to temporary total disability benefits for the period of January 1, 2002 until June 30, 2002. Specifically, the claimant objects to the trier providing an end date to the claimant’s period of total disability. On appeal the claimant contends that the trier’s ruling effectively shifts the burden of proof as to the claimant’s disability status onto the claimant. The claimant argues that the trier’s determination contravenes the Form 36 procedure established under § 3 1-296 and that as his client is “permanently” totally disabled she should not have to prove her continuing disability. We disagree. The claimant’s incapacity does not fall within the class of injuries set out in § 31-307c thus she does not meet the criteria of being “permanently” totally disabled. See Covaleski v. Casual Corner, 4419 CRB-1-01-7 (June 27, 2002). The burden of proof as to the claimant’s continued total disability status remains with the claimant.

We note in the trier’s May 2, 2002 partial granting of the claimant’s Motion To Correct set out in Paragraph 12 the commissioner granted the claimant’s correction which stated, “By finding that the Fund has the affirmative duty of establishing that the claimant’s total permanent disability has ended before terminating weekly Workers’ Compensation wage loss.” We think that the trier’s granting of this correction effectively tempers the claimant’s concern that the termination of her entitlement to compensation will occur before she is given an opportunity to present evidence that she continues to be totally disabled.

Additionally, we note that in the claimant’s Motion to Correct filed following the May 20, 2002 Finding and Award, the claimant objected to the trier’s finding in Paragraph D stating “Additional pro forma formal hearings will be scheduled at six-month intervals, at which time, the Claimant will be required to provide updated medical reports from treating physicians concerning her claim for temporary total disability benefits. Said hearings will be scheduled by the Seventh District Workers’ Compensation office, and while the personal appearance of the Claimant may not be necessary, medical reports can be forwarded to the Seventh District Workers’ Compensation office by mail, with copies being sent to the Second Injury Fund c/o the Attorney General’s office.” Given our conclusion that the burden of proving claimant’s continuing total disability status rests with the claimant, we think this finding, if anything serves to assure the claimant’s due process rights and is a proper exercise of the commissioner’s powers described in § 31-278. Thus, the commissioner’s ruling here does not violate claimant’s due process rights nor does it fly in the face of the procedures and case law developed around the Form 36.9

Finally, we reach the issue of whether the trier erred in failing to award interest pursuant to § 31-300 and § 31-303. Paragraph B of the January 29, 2002 Finding and Award states “ I find that because an order from the Workers’ Compensation Commission was not issued to the Second Injury Fund concerning payment, prior to this date, of the above benefits, no interest or penalties should be added thereto.” Thus, as there was no outstanding order of payment the interest provision of § 31-30310 is not applicable.

Sec. 31-300 provides in pertinent part:

In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in his award interest at the rate prescribed in section 37-3a and a reasonable attorney’s fee in the case of undue delay in adjustments of compensation and may include in his award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney’s fee. Payments not commenced within thirty-five days after the filing of a written notice of claim shall be presumed to be unduly delayed unless a notice to contest the claim is filed in accordance with section 31-297. In cases where there has been delay in either adjustment or payment, which delay has not been due to the fault or neglect of the employer or insurer, whether such delay was caused by appeals or otherwise, the commissioner may allow interest at such rate, not to exceed the rate prescribed in section 37-3a, as may be fair and reasonable, taking into account whatever advantage the employer or insurer, as the case may be, may have had from the use of the money, the burden of showing that the rate in such case should be less than the rate prescribed in section 37-3a to be upon the employer or insurer. (emphasis added)

As the claimant is only seeking interest and not attorney’s fees we can only infer that the basis of claimant’s counsel’s request for interest pursuant to § 31-300 is predicated on an allegation that there was a delay “in either adjustment or payment, which delay has not been due to the fault or neglect of the employer or insurer whether such delay was caused by appeals or otherwise . . . .” The first concern we have is that claimant’s counsel has failed to specifically state on what grounds he is seeking interest. At oral argument he characterized the Fund’s delay in payment as an unreasonable contest, yet in hearings before the trier, claimant’s counsel makes a passing reference to seeking interest at “either 10% or 20% rate whichever is higher.” See Oct. 4, 2001 Transcript p. 22. We should not have to infer the legal basis for the claimant’s claim for interest under the statute.

Secondly, the provision of the statute arguably at issue puts such awards within the trial commissioner’s discretion. “An award of such interest is a matter expressly committed to the trier’s discretion; thus, the commissioner is not compelled to award such interest at all. Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 181 (1974).” Bilotta v. Connecticut Natural Gas Corp., 4106 CRB-1-99-8 (October 5, 2000). A trier’s exercise of discretion which yields a result that a party deems unsuitable is not a basis for reversal without a demonstration that the result was an abuse of the trier’s discretion. Santiago v. PMI, Inc., 4513 CRB-6-02-4 (March 27, 2003) (trial commissioner’s exercise of discretion will not be overturned if conclusion was reasonable).

We therefore affirm the Commissioner acting for the Seventh District’s January 29, 2002 Finding and Award and May 20, 2002 Finding and Award and modify only in respect to the computation of the COLAs to which the claimant was entitled.

Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.

1 For the record we note that both sides sought continuances in this matter at various times. BACK TO TEXT

2 Sec. 31-355(b) provides in pertinent part: When an award of compensation has been made under the provisions of this chapter against an employer who fails or is unable to pay medical and surgical aid or hospital and nursing service required under this chapter or any type of compensation for disability, or both, whether for total or partial disability of a permanent or temporary nature, death benefit, funeral expense, or any adjustment in compensation required by this chapter, and whose insurer fails or is unable to pay the compensation, such compensation shall be paid from the Second Injury Fund. BACK TO TEXT

3 The chronology of opinions relating to Workers’ Compensation matters issued by this tribunal and our appellate courts is as follows: Matey v. Dember, 5 Conn. Workers’ Comp. Rev. Op. 104, 516 CRD-5-86 (June 14, 1988). (Average weekly wage computation which took into account employer’s furnishing of room and board must be supported by evidence, and trier correctly concluded he lacked the jurisdiction to decide the issue of whether the claimant’s claim was time barred by probate law, i.e., § 45-205 statute of non-claim), Matey v. Dember, 210 Conn. 626 (1989)(per curiam) (dismissed appeal from CRD as premature as further evidence necessary) Matey v. Dember, 1189 CRD-5-91-3 (April 5, 1991)(appeal moot where commissioner granted Second Injury Fund’s Motion to Reopen) Matey v. Dember, 3153 CRB-5-95-8 (January 10, 1997)(CRB held trial commissioner correctly denied Fund’s Motions to Reopen where Fund did not allege a change in the claimant’s capacity, degree of dependence or any change of conditions warranting re-opening and the Fund’s attempt to re-litigate the Commission’s jurisdiction over the claim was not permitted as the question was previously heard and decided, matter was reversed and remanded for the limited purpose of entering an award against the employer so that the liability of the Fund could be invoked pursuant to §31-355(a)) Matey v. Dember, 3848 CRB-7-98-6 (July 7, 1999) (the CRB held, inter alia, that the Fund was not entitled to a set off pursuant to § 31-293, and that the Fund was not entitled to a de novo hearing as to its jurisdictional claims.) Matey v. Dember, 256 Conn. 456 (2001) (Supreme court held Fund entitled to set off against civil suit proceeds but Fund not entitled to a de novo hearing to contest liability.) BACK TO TEXT

4 On February 8, 2002 the commissioner directed the Fund to make payments pursuant to § 31-355. BACK TO TEXT

5 The Second Injury Fund’s February 4, 2002 Motion To Correct merely sought to correct some typographical errors in the January 29, 2002 Finding and Award. BACK TO TEXT

6 On July 18, 2002 the trial commissioner also issued an Interim Order for payment of Medical Benefits. The claimant petitioned for review and following that appeal the commissioner withdrew his order on July 30, 2002. At oral argument the claimant withdrew appeal issues related to an Interim Order for Medical Benefits. BACK TO TEXT

7 The claimant filed an additional appeal issue in Case No. 4488 CRB-7-02-2 in which claimant’s counsel challenged the trier’s interim award of medical benefits. At oral argument that appeal issue was withdrawn. BACK TO TEXT

8 Although we cannot precisely state why the trier determined a different total than we did, we suspect that the differences in our calculations may rest on the use of the percentage calculations listed and referred to by both parties in the Commission’s Memorandum No. 2001-04. While the percentages listed in that memo provide a convenient method for determining a COLA calculation, the effect of “rounding off” the annual percentage difference in the maximum rates may skew the resulting dollar amounts when the calculation of benefits is made for a period covering multiple years as in this case. As the claimant was injured prior to 1990 she is entitled to have her compensation rate adjusted by flat dollar COLA increases through October 1990. To determine the COLA after October 1, 1991, the claimant’s compensation rate with the accrued dollar COLAs for preceding years is then adjusted annually by a percentage increase in the maximum rate of compensation over the prior year’s maximum compensation rate. See Gil v. Courthouse One, 239 Conn. 676 (1997), see also Rutledge v. State, 63 Conn. App. 370 (2001). BACK TO TEXT

9 We note that in claimant’s counsel’s brief he argues that “the Finding and Award should be reversed in so far as it limits Temporary Total benefits and a remand order entered requiring that the Award be amended to include weekly Temporary Total benefits to be paid until an appropriate Form-36 is submitted and approved.” If that is what the claimant wanted the commissioner to find then claimant’s counsel should have so stated in his Motion To Correct filed February 7, 2002. BACK TO TEXT

10 Sec. 31-303 provides: Payments agreed to under a voluntary agreement shall commence on or before the tenth day from the date of agreement. Payments due under an award shall commence on or before the tenth day from the date of such award. Payments due from the Second Injury Fund shall be payable on or before the tenth business day after receipt of a fully executed agreement. Any employer who fails to pay within the prescribed time limitations of this section shall pay a penalty for each late payment, in the amount of twenty per cent of such payment, in addition to any other interest or penalty imposed pursuant to the provisions of this chapter. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: December 16, 2004

Page URL: http://wcc.state.ct.us/crb/2003/4488crb.htm

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