CASE NO. 4506 CRB-7-02-3
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 5, 2003
GARY J. WILSON
CITY OF STAMFORD
CONNECTICUT INTERLOCAL RISK MANAGEMENT AGENCY
The claimant was represented by Gary J. Wilson, Esq., 4 Daniels Farm Road, Trumbull, CT 06611.
The respondent was represented by Scott Wilson Williams, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430.
These Petitions for Review from the March 7, 2002 Finding and Award and the April 19, 2002 Ruling on Respondent’s Motion to Correct/Motion for Articulation of the Commissioner acting for the Seventh District were heard September 20, 2002 by a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent-employer, City of Stamford, and the claimant appeal from the Commissioner acting for the Seventh District’s March 7, 2002 Finding and Award and April 19, 2002 Ruling on Respondent’s Motion To Correct/Motion For Articulation. In that Finding and Order as amended by the trial commissioner’s granting in part of the Respondent’s Motion To Correct/Motion For Articulation, the trier ordered the respondent to continue claimant’s group health benefits pursuant to § 31-284b on days when the claimant sees a medical provider. The respondent took the instant appeal and the claimant following the granting in part of the Respondent’s Motion To Correct/Motion For Articulation filed a cross appeal. Both parties ask us to consider the issue of whether the trial commissioner erred in concluding that the claimant was entitled to § 31-284b benefits on days when the claimant sees a medical provider. The claimant contends that he continued to receive medical benefits pursuant to § 7-433c and thus, the respondent should continue to provide benefits pursuant to § 31-284b.
The pertinent facts in the instant matter were largely stipulated to by the parties. These facts include that the claimant suffered a myocardial infarction on or about July 8, 1991. Pursuant to a February 5, 1996 Finding and Award, the claimant was found entitled to benefits pursuant to § 7-433c due to the July 8, 1991 heart attack.
The essential issue pending before us is whether a claimant otherwise entitled to § 31-284b benefits is entitled to such benefits while receiving medical benefits and not receiving indemnity benefits. There is no dispute between the parties that claimant is entitled to § 31-284b benefits while receiving indemnity benefits. See Kelly v. Bridgeport, 61 Conn. App. 9 (2000), cert. denied, 255 Conn. 933 (2001), and Auger v. Stratford, 64 Conn. App. 75 (2001) (per curiam). Between the time the parties filed their respective appeals, this tribunal issued its opinion in Graham v. State/Univ. of Conn. Health Center, 4418 CRB-6-01-7 (July 23, 2002).1
In Graham, this tribunal engaged in a detailed analysis and review of the legal ratio decidendi of what we understood to be the Appellate Court’s holding in Kelly, supra. In Graham, we reviewed Kelly and Auger and concluded that those § 31-284b benefits only applied to instances where a claimant is eligible to receive indemnity benefits. We think Graham is sufficiently analogous to the instant matter and thus compels the conclusion that the trial commissioner’s March 7, 2002 Finding and Order must be reversed.
Like the claimant in Graham, the instant claimant’s injury occurred after the enactment of Public Act 91-32 which both the claimant in Graham and the instant claimant argue permits a different holding than that reached in Graham and applied today. We were not so persuaded in Graham, and are not so persuaded today. We therefore decline to use this opportunity to revisit our holding in Graham.
Finally, we note that in the course of the prosecution of this appeal, the claimant filed a Motion To Submit Additional Evidence. The evidence which the claimant sought to proffer was an affidavit from the World Gym demonstrating that the claimant has had a full year membership since 1992. Claimant contends that World Gym membership provides evidence of daily contact with a medical provider, the gym. Claimant contends that his activities at the gym are undertaken so as to reduce advancement of his heart disease and the potential for additional cardiac incidents. Ruling as we have the evidence the claimant seeks to proffer in his Motion To Submit Additional Evidence is not material to our consideration of the instant matter. See Admin. Reg. § 31-301-9.
For all the reasons expressed herein and in our prior opinion in Graham, supra, we reverse the March 7, 2002 Finding and Order of the Commissioner acting for the Seventh District.
Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.
1 We note that Graham v. State/Univ. of Conn. Health Center, 4418 CRB-6-01-7 (July 23, 2002) appeal docketed No. AC 23334 (Aug. 12, 2002) is currently pending before the Appellate Court. BACK TO TEXT