State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Cogle v. Town of West Hartford

CASE NO. 4872 CRB-6-04-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 17, 2005

LEIGH A. COGLE

CLAIMANT-APPELLANT

v.

TOWN OF WEST HARTFORD

EMPLOYER

and

WEBSTER INSURANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Diane Chace, Esq., Weber & Carrier, LLP, 24 Cedar Street, New Britain, CT 06052.

The respondents were represented by Douglas Drayton, Esq., and Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the September 28, 2004 Finding and Award of the Commissioner acting for the Sixth District was heard May 13, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the September 28, 2004 Finding and Award of the Commissioner acting for the Sixth District.1 In that Finding and Award the commissioner awarded the claimant § 31-308(a) benefits for the period August 8, 2002 through October 25, 2002 but did not award § 31-308(a) benefits for the entire period sought by claimant, i.e., from August 8, 2002 through April 15, 2003. The pertinent facts in this matter are as follows:

The claimant was employed as a Police Officer by the Town of West Hartford. On September 15, 2000, the claimant sustained a compensable injury to her low back, hip-sacroiliac region. On August 5, 2002 her treating physician, Dr. Andrew Wakefield, released the claimant for full duty. The claimant returned to work August 7, 2002 but only worked for that day. From August 8, 2002 until April 15, 2003 the claimant remained out of work.

The respondents filed a Form 36 on the basis of claimant’s treating physician’s August 5, 2002 release to full duty. On October 2, 2002, Dr. Wakefield submitted a medical note to the respondents in which he stated claimant had work restrictions. On October 25, 2002, respondents filed a Form 43 in which it contested liability for, inter alia, both temporary total disability and temporary partial disability benefits. See Finding ¶ 6. There is no dispute that during the disputed period the claimant had a partial work capacity and received payments from the respondent employer. It is also not disputed that between August 8, 2002 and April 15, 2003 the claimant did not seek work within her restrictions, nor did the Town have light duty available for the claimant.

Checks sent to the claimant by the respondents between August 8, 2002 and September 26, 2002 indicated they were Workers’ Compensation payments. From September 27, 2002 through the end of January 2003, payments made to the claimant were attributed to sick time. At the end of January, claimant’s sick leave was exhausted and no further payments were made. On November 7, 2002, the claimant received a letter from the respondent employer explaining that the payroll records were being adjusted so as to retroactively charge the employee for sick time back to August 8, 2002. Finding ¶ 7. On April 22, 2003 the respondents filed another Form 36 on the basis of claimant’s physician’s release to full duty as of April 15, 2003.

The only issue presented for review is whether the trial commissioner erred in failing to award § 31-308(a) benefits for the entire period from August 8, 2002 through April 15, 2003 as a matter of law. The claimant contends the appropriate legal mechanism to discontinue payments is a Form 36. She further argues the Form 43 filed by the respondents on October 25, 2002 was legally inappropriate for the purpose of discontinuing her benefits and should not serve as a basis for determining the duration of § 31-308(a) benefits.

Section 31-296 requires a claimant be advised of a respondents’ intention to discontinue or reduce payments when the parties have reached an agreement as to compensation. The notice informing the claimant of the respondents’ intention to reduce or discontinue benefits is a Form 36.2 Respondents are not required to file a Form 36 in the absence of an agreement between the parties. The agreement need not always be reduced to writing. See § 31-296a. However, in instances where the agreement is not in writing the trial commissioner must determine if an agreement existed. In the instant matter an approved Form 36 was filed on the basis of claimant’s physician’s August 5, 2002 release to full duty.

Any agreement as to claimant’s entitlement and the category of benefits to which she was entitled, effectively ended with the approval of the Form 36 filed pursuant to the claimant’s August 5, 2002 release to full duty. The claimant’s return to active duty in addition to the approved Form 36 ended the respondents’ obligation to continue benefits. Further, in Findings ¶ C the commissioner found, “The claimant never advised the respondent employer that she had had a relapse and that she was claiming benefits for the entire length of time from August 8th to April 15, 2003.” Thus, no agreement existed and the respondents were not compelled to file a Form 36. See Sellers v Sellers Garage, Inc., 80 Conn. App. 15 (2003).

Finally, as to any issue which arguably lies relating to the commissioner’s conclusion the claimant was only entitled to temporary partial benefits from August 8, 2002 through October 25, 2002, we note the claimant did not challenge the factual findings of the trial commissioner.3 In order to prove entitlement to § 31-308(a)4 benefits a claimant must prove she was ready and willing to perform other work. In Finding ¶ D the trial commissioner found:

Even though . . . the risk analyst for the employer Town testified that it normally does not require policemen and firemen to do job searches some evidence of the fact must be shown and the burden is upon the claimant to show that she was ready and willing to perform other work in the same locality pursuant to Section 31-308(a) of the Connecticut General Statutes.

The commissioner’s conclusion will not be disturbed unless without evidentiary support or based on unreasonable or impermissible inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). The appellant has not persuaded this board that the commissioner’s conclusion was erroneous as a matter of law.

We therefore affirm the September 28, 2004 Finding and Award of the Commissioner acting for the Sixth District.

Commissioners Stephen B. Delaney and Michelle D Truglia concur.

1 Extensions of time were granted to the appellant during the pendency of this appeal. BACK TO TEXT

2 We have previously outlined the Form 36 procedure and the instances in which it must be filed prior to reducing or discontinuing benefits. See Hurley v. Bridgeport, 14 Conn. Workers’ Comp. Rev. Op. 366, 2037 CRB-4-95-9, (September 26, 1995); Platt v. UTC/Pratt & Whitney Aircraft Div., 3 Conn. Workers’ Comp. Rev. Op. 3, 7, 164 CRD-6-82 (August 16, 1985). BACK TO TEXT

3 A number of the trier’s factual findings were based on a joint stipulation of facts entered by the parties. See Finding ¶ 1. Our review of the file in this matter does not indicate that the appellant filed a Motion To Correct. Thus, the factual findings of the trial commissioner were unchallenged by the appellant. BACK TO TEXT

4 Sec. 31-308(a) provides:

If any injury for which compensation is provided under the provisions of this chapter results in partial incapacity, the injured employee shall be paid a weekly compensation equal to seventy-five per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by the injured employee before his injury, after such wages have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, and the amount he is able to earn after the injury, after such amount has been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, except that when (1) the physician attending an injured employee certifies that the employee is unable to perform his usual work but is able to perform other work, (2) the employee is ready and willing to perform other work in the same locality and (3) no other work is available, the employee shall be paid his full weekly compensation subject to the provisions of this section. Compensation paid under this subsection shall not be more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309, and shall continue during the period of partial incapacity, but no longer than five hundred twenty weeks. If the employer procures employment for an injured employee that is suitable to his capacity, the wages offered in such employment shall be taken as the earning capacity of the injured employee during the period of the employment. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: December 13, 2005

Page URL: http://wcc.state.ct.us/crb/2005/4872crb.htm

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