CASE NO. 4749 CRB-1-03-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 28, 2004
STATE OF CONNECTICUT/UNIVERSITY OF CONNECTICUT HEALTH CENTER
The claimant appeared pro se.
The respondent was represented by Philip Schulz, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the October 29, 2003 Ruling Re: State’s Motion for An Order of Repayment of Benefits by the Claimant of the Commissioner acting for the First District was heard by the Compensation Review Board May 28, 2004 before a panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White Jr., and Charles F. Senich.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the October 29, 2003 Ruling Re: State’s Motion for An Order of Repayment of Benefits by the Claimant of the Commissioner acting for the First District. In that ruling the trial commissioner found the claimant was overpaid indemnity benefits in the amount of $93,790.68. The commissioner ordered the claimant repay the respondent, State of Connecticut at the rate of $50 per week.
The claimant appellant filed this appeal on November 12, 2003. The claimant did not file a Motion to Correct or Reasons of Appeal. No documents in support of her appeal were filed other than her appeal petition until the matter was scheduled for oral argument before the Compensation Review Board for the purpose of permitting the appellant to show cause why the appeal should not be dismissed on the basis of her failure to prosecute the appeal with proper diligence. See Practice Book § 85-1. Thereafter, on March 23, 2004 the claimant filed her appellant brief. Oral argument was heard May 28, 2004 by this panel.
The pertinent facts in this matter are as follows. On July 17, 1998, the claimant suffered a compensable injury to her neck and trapezius muscles. The respondent stipulated and agreed to this fact. However, the claimant litigated the extent of injuries flowing from the July 17, 1998 injury claiming that she also sustained other injuries including her knees and back. The respondent disputed the compensability of these injuries. Proceedings were held before Commissioner Ernie R. Walker acting on behalf of the First District. In the proceedings before Commissioner Walker, the claimant claimed that as a result of the July 17, 1998 incident and the Functional Capacity Evaluation conducted November 23 and November 24, 1998 relating to her claim, she also injured her knees, coccyx and back.
At various points in its defense of the claim the respondent filed Forms 36. Thus, also before Commissioner Walker was the legal validity of a Form 36 which sought to terminate temporary total incapacity payments to the claimant effective July 13, 1999. The commissioner formally approved the Form 36 as part of the May 3, 2002 Finding and Dismissal.
In the May 3, 2002 Finding and Dismissal the commissioner found the claimant entered into a Stipulation for Full and Final Settlement with the respondent for an injury occurring on June 7, 1990. That Stipulation was approved August 15, 1995 and provided that the claimant, for the sum of $40,000, agreed that the respondent was entitled to a moratorium of five years from the date of the Stipulation approval for any workers’ compensation claim of injury to her Achilles tendon, low back and both knees flowing from the June 7, 1990 injury.1
In the May 3, 2002 Finding and Dismissal the trial commissioner dismissed the claimant’s claim for injury to her low back, coccyx, shoulders and bilateral knees. See ¶ J of the May 3, 2002 Finding and Dismissal. The commissioner found that the claimant was not entitled to either temporary total or temporary partial benefits from July 13, 1999 through November 28, 2001. Additionally, the commissioner ordered that a formal hearing be scheduled for the purpose of determining the claimant’s financial position vis à vis repayment. It is the subsequent proceedings and determination as to the issue of the claimant’s financial position and repayment ruling that we now consider on review.
The instant matter was heard by Commissioner Michael S. Miles acting for the First District. In his October 29, 2003 Ruling, Commissioner Miles noted no appeal was taken from the May 3, 2002 Finding and Dismissal2 and incorporated that decision by reference as well as finding it to be the “law of the case.” Thus, the instant proceedings went forward wherein the commissioner took evidence as to the claimant’s financial circumstances and considered additional evidence as to over payments from the period of November 29, 2001 to May 3, 2002 in the amount of $13,310. The total overpayment for which the claimant was liable was $93,790.68.
In the October 29, 2003 Ruling the commissioner noted that the claimant raised arguments sounding in § 31-290a and § 31-313 and her assertion that she was ready, willing and able to return to the respondent but that the respondent would not take her back. See Finding, ¶ 19. The commissioner also noted that the claimant testified she applied for State Disability Retirement and was still awaiting a decision. See Finding, ¶ 15. The commissioner further advised the claimant she was free to pursue any recourse available to her pursuant to § 31-290a and § 31-313 given these claims.
The trial commissioner concluded, in part, that the claimant was to repay the respondent at the amount of $50 per week subject to modification by either party on the basis of a substantial change of circumstance. The claimant filed this appeal and as the commissioner noted at the proceedings below, the claimant focused a significant portion of her oral argument on her claimed capacity to work and the respondent’s refusal to provide same. However, that issue was not decided by the commissioner in his October 29, 2003 Ruling. Moreover, it appears that evidence and argument as to the claimant’s alleged capacity to work and the respondent’s alleged failure to provide same were part of the proceedings before Commissioner Walker. The only issue before Commissioner Miles was to determine; the overpayment amount, whether the claimant had the financial ability to repay the debt and if so, the terms of repayment.
Nothing in the documents submitted by the claimant in support of her appeal, provide a basis for legal error on the part of the commissioner in his October 29, 2003 Ruling. Commissioner Miles noted in his October 29, 2003 Ruling that the claimant did not appeal from Commissioner Walker’s May 3, 2002 Finding and Dismissal and as such it constitutes the “law of the case.” As the bulk of claimant’s argument in this appeal concerns matters outside the scope of the proceedings before Commissioner Miles and as the claimant has not presented a legal basis for error on the part of Commissioner Miles in his October 29, 2003 Ruling, the ruling stands.
We, therefore, dismiss the claimant’s appeal from the October 29, 2003 Ruling Re: State’s Motion for An Order of Repayment of Benefits by the Claimant of the Commissioner acting for the First District.
Commissioners A. Thomas White, Jr. and Charles Senich concur.
1 In Finding ¶ 13 in the May 3, 2002 Finding and Dismissal, the commissioner referred to the approved Stipulation for Full and Final Settlement and noted that the Stipulation provided, in pertinent part:
The claimant agree[s] that the State of Connecticut shall be entitled to a moratorium of five years from the date of approval of the stipulation with respect to any workers’ compensation which the claimant could otherwise bring against the State of Connecticut with respect to her Achilles tendon, low back and both knees. The claimant therefore agrees that she will waive her right to bring any workers’ compensation claim for any prior injury, contemporaneous injury or subsequent injury which she has or may have suffered [or] will suffer, which injury arises out of the course of her employment with the State of Connecticut for a period of five years from the date of approval. BACK TO TEXT
2 Additionally, we note the claimant was represented by counsel in the proceedings related to the May 3, 2002 Finding and Dismissal. BACK TO TEXT