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Hummel v. Marten Transport, Ltd.

CASE NO. 4760 CRB-5-03-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 19, 2004

DEBRA HUMMEL, Dependent Widow of Henry Hummel, (DECEASED)

CLAIMANT-APPELLEE

v.

MARTEN TRANSPORT, LTD.

EMPLOYER

and

CRAWFORD & COMPANY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Al Desrosiers, Esq., Cousins & Desrosiers, 2563 Main Street, Stratford CT 06615.

The respondents, Marten Transport, Ltd. and Crawford & Company, were represented by Erica Todd, Esq., Trotta, Trotta & Trotta, 900 Chapel Street, 12th Floor, P.O. Box 802, New Haven, CT 06503.

This Petition for Review from the November 18, 2003 Finding and Award of the Commissioner acting for the Fifth District was heard July 30, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr. and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, Marten Transport, Ltd. and Crawford & Company have appealed from the November 18, 2003 Finding and Award of the Commissioner acting for the Fifth District. We remand this case to the trial commissioner for further proceedings consistent with this opinion.

On April 24, 2003 a Finding and Award was issued regarding compensability. The trial commissioner in that proceeding found the decedent’s underlying heart attack and resulting widow’s claim were compensable. The respondents filed a timely appeal to the Compensation Review Board of that decision. On May 3, 2004 this board affirmed that trial commissioner’s finding and award. See, Hummel v. Marten Transport, Ltd., 4667 CRB-5-03-5 (May 3, 2004). On May 24, 2004 the respondents appealed the underlying case to Connecticut’s Appellate Court and as of this date that appeal is still pending. The claim to date is unpaid. The average weekly wage was found to be $623.59, resulting in a base compensation rate of $389.03. The commissioner ordered the respondents to pay all benefits due from November 25, 1997 pursuant to § 31-306 C.G.S.

Subsequent to the underlying decision formal hearings were held regarding the issue of a § 31-301(f) C.G.S. order as well as penalties under §§ 31-300 and 31-303. The trial commissioner found that in light of the pending appeal § 31-301(f) was applicable and ordered the respondents to pay the claimant widow benefits from November 25, 1997 to November 25, 2003, excluding cost of living adjustments which the parties were ordered to work out. The respondents were further ordered to pay weekly indemnity benefits to the claimant-widow as of November 25, 2003 plus cost of living adjustment increases, which the parties were also ordered to work out. The issues pertaining to penalties under §§ 31-300 and 31-303 were ordered to remain open and subject to future discussions and hearings.

The respondents have appealed this finding and award. The award was made pursuant to § 31-301(f) which states,

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.

In order for § 31-301(f) to be enforceable the trial commissioner must make an order which spells out the specific amount of benefits that are to be paid. Yablonski v. Danbury Hospital, 15 Conn. Workers’ Comp. Rev. Op. 166, 3107 CRB-7-95-7 (February 13, 1996). The order in this case was not specific enough to meet the requirements of § 31-301 (f). The cost of living adjustments were not calculated and specifically ordered. Furthermore, the respondents contend that the claimant-widow may be receiving social security widow’s benefits and that the workers’ compensation benefits should be offset by that amount under § 31-307(e). See Rayhall v. Akim Co., 263 Conn. 328 (2003). This issue was raised by the respondents in the proceedings below. See Respondents’ November 4, 2003 Brief. Although the claimant contends that § 31-307(e) does not apply to a person collecting widow’s benefits we believe that this is a legitimate issue that should be addressed as part of the proceedings below. Therefore, this case must be remanded for further proceedings for a specific order regarding the amount of benefits that are due to the claimant-widow.

The respondents contend that the entire award of benefits should not be paid to the claimant because §§ 31-301(d) and 31-301(f) C.G.S. as read together are contradictory.

Section 31-301(d) states,

When any appeal is pending, and it appears to the Compensation Review Board that any part of the award appealed from is not affected by the issues raised by the appeal, the Compensation Review Board may, on motion or of its own motion, render a judgment directing compliance with any portion of the award not affected by the appeal; or if the only issue raised by the appeal is the amount of the average weekly wage for the purpose of determining the amount of compensation, as provided in section 31-310, the commissioner shall, on motion of the claimant, direct the payment of the portion of the compensation payable under his award that is not in dispute, if any, pending final adjudication of the disputed portion thereof. In all appeals in which one of the parties is not represented by counsel, and in which the party taking the appeal does not prosecute the case within a reasonable time from the date of appeal, the Compensation Review Board may, of its own motion, affirm, reverse or modify the award.

A plain reading of these two sections of the statute reveals that each section serves a separate purpose. Section 31-301(d) allows the Compensation Review Board to render a judgment directing compliance for any portion of an award not affected by the appeal. In this case § 31-301(d) does not apply because compensability of the entire award is the issue of the appeal.1 Section 31-301(f) deals only with the period in which the appeal is pending, in that it mandates that the claimant “shall receive all compensation and medical treatment payable under the terms of the award.” Section 31-301(f) clearly states that a claimant shall receive all benefits and medical treatment due pending appeal. Although the respondents brought forth the possibility that the respondent should pay only the benefits due as of the date of the award, the language of the statute entitles the claimant to receive all of the benefits due.

The respondents argue § 31-301(d) and § 31-301(f) are unconstitutional as a violation of due process, depriving the respondents’ of a property right. The respondents contend that this violates the United States Constitution and respective State Constitution Due Process Clause of the Fourteenth Amendment. Respondents’ May 26, 2004 Brief, p. 6. This board lacks the plenary authority to review constitutional challenges presented to it on appeal. See Stevenson v. Edward W. Stevenson & Sons, 4480 CRB-8-02-1 (January 8, 2003); Thompson v. State/Univ. of Conn. Health Ctr., 4355 CRB-8-01-2 (January 15, 2002). However, we note in Coley v. Camden Associates, 243 Conn. 311 (1997), our Supreme Court examined § 31-301(f) and explained, “the method chosen by the legislature of accelerating payment to a claimant does not affect a substantive right of the insurer because a claimant is statutorily obligated to repay, with interest, all benefits received by the claimant to which it is found the claimant was not entitled.” Id., p. 318. The court reasoned that because § 31-301(g) requires the claimant to repay any benefits paid plus specified interest if the claimant’s award is ultimately reversed on appeal, the respondents’ substantive rights were not affected.

The respondents argue in this case the amount to be paid would be in excess of $210,000 due to the five and one half years this action was pending through no fault of the employer. The respondents argue that the claimant’s inability to repay the award should be considered. In Dowling Considine v. Slotnik, 3468 CRB 4-96-11 (May 6, 1998), the respondents argued it should not be forced to make any payment to claimant, an illegal alien, under § 31-301(f) until the entire appeal process of the case was complete because of a fear that any payments made to the claimant would prove unrecoverable if the respondents prevailed on appeal. The board stated, “The respondents do not have the right to ignore the laws of the state of Connecticut because they are concerned that they might have a hard time getting their money back from the claimant if they ultimately win this case. That is not the way our legal system works.” While the board acknowledged the respondents’ practical and financial concerns, it held that the claimant had a right to payment of the benefits while the case was pending under § 31-301(f). Here too we acknowledge the respondents have realistic financial concerns about paying the entire sum due to the claimant, however, § 31-301(f) states that the claimant shall receive all compensation due. However, given the respondents’ arguments on appeal this board questions the respondents’ decision not to pay any compensation benefits during the pendency of the appeal. Therefore, we remand this case for further proceedings to establish the amount of all of the compensation due to the claimant’s widow.

We hereby remand this case to the trial commissioner for further proceedings consistent with this opinion.

Commissioners A. Thomas White, Jr. and Charles F. Senich concur.

1 Section 31-301(d) also deals with two other situations that are not applicable to this case. Section 31-301(d) states if the only issue on appeal is the amount of the average weekly wage for the purpose of determining compensation under § 31-310, the commissioner may order payment of the portion of the compensation which is not in dispute. Furthermore under § 31-301(d), in cases where one party is pro se and the party taking the appeal fails to prosecute the case within a reasonable amount of time the Compensation Review Board on its own may affirm, reverse or modify the award. BACK TO TEXT

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