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Brennan v. James V. Ursini, Company, Inc.

CASE NO. 4774 CRB-8-04-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 21, 2005

BERNARD BRENNAN

CLAIMANT-APPELLEE

v.

JAMES V. URSINI, COMPANY, INC.

EMPLOYER

and

ROYAL & SUNALIANCE INSURANCE

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Stephen F. Donohue, Esq., Kleban & Samor, P.C., 2425 Post Road, P.O. Box 763, Southport, CT 06890.

The respondents were represented by Christopher Powderly, Esq., P.O. Box 990029, Hartford, CT 06199.

This Petition for Review from the January 15, 2004, Finding and Award of the Commissioner acting for the Fourth District was heard August 27, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, James V. Ursini, Company and Royal & Sunalliance Insurance, have appealed from the January 15, 2004, Finding and Award of the Commissioner acting for the Fourth District.1 We remand the case to the trial commissioner for an articulation and further proceedings as necessary and consistent with this opinion.

The pertinent facts are as follows. The claimant sustained a compensable right wrist injury during the course of his employment on March 5, 1993. There were numerous hearings concerning the claimant’s injury. The issues in dispute were maximum medical improvement, permanent partial impairment, temporary partial benefits, credit for payments made and medical bills. On March 26, 2002 a stipulation to date was approved by Commissioner Frank Verrilli in order to resolve disputes regarding payment of specific and § 31-308a C.G.S. benefits. The approved stipulation provided for payment of 57.09 weeks of specific benefits and 65.52 weeks of § 31-308a benefits at the rate of $513 per week for a total payment of $62,898.93. The stipulation specifies that the respondent should receive a credit for 8.43 weeks of specific benefits which they already advanced. The stipulation states that maximum medical improvement was reached on April 7, 2000. Subsequent to the approval of the stipulation the respondents forwarded checks to the claimant on April 10, 2002 in the amounts of $7,741.47 for specific benefits and $31,339.89 for § 31-308a benefits. The respondents claim to have made payments totaling $31,852.17 after the maximum medical improvement date of April 7, 2000 but before the approval of the stipulation to date. The respondents allege there was a total payment of $63,192.06 to the claimant after the date of maximum medical improvement.

The trial commissioner found the respondents still owed the claimant $23,817.87 under the approved stipulation to date. The trial commissioner further ordered the respondents to pay interest at the rate of 20% on the $23,817.87 pursuant to § 31-303 C.G.S.

The respondents have appealed the finding and award. The respondents contend that because payments of $31,852.17 were made to the claimant prior to the approved stipulation to date but after the agreed date of maximum medical improvement the payments under the stipulation to date were paid and no additional monies are owed at this time.

The Workers’ Compensation Act does not specifically authorize settlement agreements, however, our courts have held that the ability to settle a compensation claim is inherent in the power to enter into a voluntary agreement pursuant to § 31-296 C.G.S. Muldoon v. Homestead Insulation Co., 231 Conn. 469, 480 (1994). The stipulation “is a compromise and release type of settlement similar to settlements in civil personal injury cases where a claim is settled with a lump sum payment accompanied by a release of the adverse party from further liability.” Id., 479, quoting J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985) pp. 207-208. A stipulation to date is “used to close out only a portion of a claim with the remainder left open,” or it may be “used to close out an entire claim but only to a certain date.” Id., 480, citing A. Sevarino, Connecticut Workers’ Compensation After Reforms (1994).

In this case the claimant came before the commissioner seeking payment in satisfaction of the stipulation to date. In order to make a finding as to whether the respondents had satisfied the stipulation to date the trial commissioner needed to determine what the $31,852.17 payments that the respondent made after the date of medical maximum improvement but prior to the approval of the stipulation to date represented. The respondents contend that those payments were permanency benefits under the stipulation. The claimant alleges that the language of the stipulation specified credits to the respondents of 8.43 weeks and nothing further, therefore, the respondents are not entitled to additional credits under the stipulation.

A case should be remanded to the trial commissioner when we cannot determine the basis for the decision below. Barnes v. Levine Distributors, 5 Conn. Workers’ Comp. Rev. Op. 49, 468 CRD-2-86 (April 7, 1988). Here, without a finding stating what the respondents’ payment of $31,852.17 represented we are unable to determine whether an underpayment existed. Therefore, we remand this case for an articulation of what the respondents’ $31,852.17 payments represent and we order the trial commissioner to hold any further proceedings he deems necessary in order to make such a determination.

Therefore, we remand the January 15, 2004, Finding and Award of the Commissioner acting for the Fourth District for an articulation.

Commissioners Ernie R. Walker and Howard H. Belkin concur.

1 We note that extensions of time were granted during the course of the appellate process. BACK TO TEXT

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Page last revised: February 18, 2005

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