State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Miller v. Hopkins School

CASE NO. 5084 CRB-3-06-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 18, 2007

JUDITH L. MILLER

CLAIMANT-APPELLEE

v.

HOPKINS SCHOOL

EMPLOYER

and

UTICA MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Jennifer Collins, Esq., Guendelsberger & Taylor, 28 Park Lane, New Milford, CT 06776.

The respondents were represented by G. Randall Avery, Esq., Avery, Crone & Cassone, 25 Third Street, Stamford, CT 06905.

This Petition for Review from the April 7, 2006 Finding and Award of the Commissioner acting for the Seventh District was heard December 15, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the April 7, 2006 Finding and Award of the Commissioner acting for the Seventh District.1 On appeal they challenge the trier’s findings regarding an alleged agreement concerning the amount of permanency benefits that had been paid to the claimant prior to the formal hearing. We affirm the trial commissioner’s decision.

The claimant suffered a compensable lumbar spine injury April 16, 2001, after falling from a scaffold. The respondents filed a Form 36 on February 2, 2003, requesting that benefits be converted from temporary total disability to permanent partial disability. The respondents’ examiner had diagnosed a 5% permanent partial disability with a maximum medical improvement date of January 22, 2003. The claimant’s treating physician diagnosed a 7% permanent partial disability with a maximum medical improvement date of March 3, 2003. The Form 36 was approved at a March 20, 2003 informal hearing, but benefits were converted to temporary partial disability rather than permanent partial disability. No formal hearing was sought on the Form 36.

The parties subsequently attempted to agree on the date of maximum medical improvement, along with several other issues, including the correct base compensation rate. An informal hearing was held on April 28, 2003, though there is no record of a ruling having been issued. The parties agree that a compromise of 6% was made on the permanency rating.2 Shortly before the December 16, 2003 formal hearing, they also settled on a February 14, 2003 maximum medical improvement date. The transcript of that formal hearing reflects that the parties had reached a pre-trial agreement regarding all issues except the claimant’s entitlement to a discogram, but neither party explained the nature and scope of this agreement on the record. Transcript, pp. 4-5. In a July 16, 2004 Finding and Award, Commissioner Leonard S. Paoletta ruled that the claimant’s benefits had been correctly classified as temporary partial disability payments as of April 28, 2003.3 That decision was not appealed, nor did the respondents move to correct that finding as being extraneous to the remaining disputed issue.

In the proceedings below, the parties relied on the trier’s notes from the December 2003 formal hearing as evidence of the agreement. The claimant alleged that the parties had agreed at pre-trial discussions to increase her weekly compensation rate from $511.09 to $547.29. She also alleged she had been paid none of the 22.44 weeks of permanency to which she was entitled under § 31-308(b) C.G.S. by virtue of the 6% permanent partial incapacity rating. The claimant contended at the July 5, 2005 formal hearing that the respondents had reneged on the December 16, 2003 pre-trial agreement, and sought interest and attorney’s fees. Meanwhile, the respondents alleged that only 2.44 weeks of benefits remained due. They introduced no accounting of benefits paid to support this claim, however, as the sole basis of their assertion was the alleged agreement.

The trial commissioner concluded that the claimant’s temporary partial disability benefits commenced on February 3, 2003, and should have ended on February 14, 2003, the maximum medical improvement date. The respondents’ obligation to pay advances against permanency arose once the parties agreed on a maximum medical improvement date, which agreement was reached on December 16, 2003. The trier further noted that the parties failed to reduce their pre-trial agreement to writing under § 31-297a C.G.S. The trier categorized the parties’ informal discussions and commissioner’s notes as insufficient bases upon which to ground the precise terms of an agreement. The trier concluded that there was no evidence of an agreement to adjust the base compensation rate, and left the upward adjustment of that rate open for determination at future hearings.

The commissioner ruled that the respondents had been obligated to pay the claimant 22.44 weeks of permanent partial disability benefits at the $511.09 rate at the time of the December 16, 2003 agreement, commencing February 14, 2003. Those benefits would have run their course as of July 22, 2003. Thus, the claimant should have received a lump sum payment within a reasonable time after the December 16, 2003 agreement. As no accounting of benefits had been introduced into evidence to show that part of the 6% permanency rating had already been paid, the trier awarded the claimant 22.44 weeks of benefits for a total of $11,468.86, along with 10% interest, compounded annually, beginning on January 1, 2004. The trier also awarded $750 in attorney’s fees. The respondents have petitioned for review from that decision. They have also appealed the denial of their Motion to Correct, which sought to establish a concession by the claimant that only 2.44 weeks of benefits remained outstanding.

When a claimant has a compensable injury to a body part listed in § 31-308(b) C.G.S., upon reaching maximum medical improvement, he or she is entitled to compensation for the permanent partial impairment “in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation.” Section 31-295(c) states, “If the employee is entitled to receive compensation for permanent disability to an injured member . . . , the compensation shall be paid to him beginning not later than thirty days following the date of the maximum improvement of the member . . . and, if the compensation payments are not so paid, the employer shall . . . pay interest at the rate of ten per cent per annum on such sum or sums from the date of maximum improvement.” Under our law, a claimant who is collecting temporary partial disability benefits becomes entitled to receive permanent partial disability benefits upon reaching maximum medical improvement, and either party can request that this shift be made. See Rayhall v. Akim Co., 263 Conn. 328, 357-58 (2003); Krol v. A.V. Tuchy, Inc., 4613 CRB-4-03-1 (January 29, 2004), aff’d, 90 Conn. App. 346 (2005). Such a change could occur by agreement of the parties, by judicial finding after a properly-noticed evidentiary hearing, or following the filing of a Form 36 that is approved by the commissioner.

A respondent may seek authorization to take prior payments of temporary partial disability benefits and reclassify them as permanent partial disability benefits if maximum medical improvement was reached in the past, but the earliest the permanency benefits can commence is the filing date of the Form 36. Hyde v. Stop & Shop Companies, 3728 CRB-4-97-11 (February 18, 1999); Crowe v. DBD, Inc., 14 Conn. Workers’ Comp. Rev. Op. 283, 285, 1941 CRB-7-93-12 (September 11, 1995). Here, the respondents had filed a Form 36 seeking to establish that the claimant was at maximum medical improvement, and to commence permanent partial benefits in lieu of total disability benefits. Instead, as determined by three separate commissioners, that Form 36 converted benefits to temporary partial disability as of February 3, 2003. The issue of maximum medical improvement subsequently remained open until the parties reached an agreement on December 16, 2003, based on the trial commissioner’s findings.

In order for the respondents to discontinue temporary partial disability benefits in favor of permanency prior to December 16, 2003, some additional step would thus have been necessary. The respondents did not file a second Form 36 seeking to terminate temporary partial disability benefits, nor is there any proof (such as an accounting record) that payments made after the February 14, 2003 maximum medical improvement date were either offered by the respondent or acknowledged by the claimant as permanency benefits that were being accepted in lieu of temporary partial disability. Therefore, the respondents must establish that a binding agreement was reached addressing the amount of permanency benefits that remained due in order to establish grounds for reclassifying any of the previously paid benefits as permanency.

However, the trier found no proof that the claimant had agreed to reclassify temporary partial disability benefits as permanency.4 We find no error in this regard. Nothing had been reduced to writing, and the parties now disagree as to the nature of the arrangement they negotiated orally prior to the December 16, 2003 formal hearing. Accordingly, it was the commissioner’s duty to base her decision on those facts and prior findings that were undisputed, and on the law. The trier thus entered the award required by § 31-308(b), which was for 22.44 weeks of permanency benefits, upon finding that the claimant had reached maximum medical improvement with a 6% permanent partial disability to her lumbar spine.5 Section 31-295(c) required the 10% per annum award of interest made by the commissioner, while § 31-300 allowed for an attorney’s fee based on an unreasonable contest of liability. See, e.g., Collazo v. Microboard Processing, 4912 CRB-4-05-1 (January 19, 2006)(absence of memorialized agreement left respondents vulnerable to testimony concerning nature of said agreement, and to finding that their conduct following breach of agreement was unreasonable).

The trial commissioner’s decision is hereby affirmed. Insofar as the payment of benefits may have been delayed pending resolution of this appeal, interest is awarded pursuant to § 31-301c(b).

Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno concur.

1 The claimant and the respondents both filed motions for a postponement of the October 20, 2006 oral argument and the extension of relevant briefing deadlines. This board granted those motions, and oral argument on this appeal was rescheduled for December 15, 2006. BACK TO TEXT

2 The claimant’s counsel testified that this compromise occurred in March 2003, even though the claimant was awarded temporary partial disability benefits rather than permanency by the commissioners who considered the March 2, 2003 Form 36 in conjunction with an updated report by the claimant’s treating physician. July 5, 2005 Transcript, p. 27. BACK TO TEXT

3 The formal hearing notice for the December 16, 2003 formal hearing had listed four disputed issues, including permanent partial disability benefits and maximum medical improvement. However, the July 16, 2004 Finding and Award lists the only issue to be decided as whether a discogram was reasonable and necessary medical treatment. In that decision, the trial commissioner approved the discogram, which had been opposed by the respondents’ examiner on the ground that the claimant had reached maximum medical improvement and needed no further diagnostic studies. Paragraph 15 of the award explains that the Respondents’ Form 36 was approved on March 4, 2003, converting claimant’s benefits to payment of permanent partial disability, while ¶ 16 explains that the approval of the Form 36 was reviewed on March 20, 2003 in conjunction with an updated medical report, whereupon benefits were reclassified as temporary partial. Paragraph 17 then states that further review resulted in an April 28, 2003 ruling that the benefits were correctly classified as temporary partial disability payments. In his orders, the trier upheld the April 28, 2003 ruling on the Form 36. BACK TO TEXT

4 The claimant objected that permanent partial disability had not been reduced to a voluntary agreement, nor did the record state that prior payments would be attributed to the specific award that was outstanding. July 5, 2005 Transcript, p. 26. The respondents contend that the parties reached an agreement prior to the December 16, 2003 formal hearing as to the maximum medical improvement date, the 6% permanent partial disability rating, and the prior payment of 20 weeks of benefits. They contend that they initially agreed to “evaluate the contention of the claimant that the compensation rate previously used . . . was not correct, and amend the voluntary agreement in accord with any correction due.” Respondents’ Proposed Findings, ¶ 3. They go on to explain that the insurer recalculated the compensation rate, determined that it was not erroneous, and declined to make an adjustment. Id., ¶ 8. In their view, this did not invalidate or run counter to the parties’ agreement. The claimant, meanwhile, contends that her concession that 20 weeks of permanency benefits would be credited to the respondents was made in exchange for an increase in the compensation rate. When the rate was not increased, the claimant considered the agreement breached. Claimant’s Proposed Findings, ¶ 17. The end result of this exchange is that there is insufficient proof of an agreement between the parties on this issue. We are left with a situation in which communications between the parties appeared to break down, with letters by claimant’s counsel apparently not being answered; Transcript, p. 38; and/or being disregarded because they were inconsistent with the respondents’ understanding of the situation and their responsibilities. Id., p. 44. This resulted in a claim for sanctions against the respondents. BACK TO TEXT

5 These factual findings were not contested by the respondents in their Motion to Correct, and neither party disputes that they agreed on a 6% permanency rating and compromised on a February 14, 2003 maximum medical improvement date. Insofar as either or both of those matters may have been discussed or resolved during the negotiations preceding the December 16, 2003 formal hearing, there is no written agreement declaring that the establishment of a maximum medical improvement date or a 6% permanency rating was part of a larger agreement whose terms were interdependent and not severable; see, e.g., Venture Partners, Ltd. V. Synapse Technologies, Inc., 42 Conn. App. 109, 118 (1996); nor did either party contest the February 14, 2003 date of maximum medical improvement or the 6% permanency rating at the proceedings below based on contrary medical evidence. Therefore, the trier reasonably found that the parties had successfully negotiated an agreement on these issues by December 16, 2003, and the trier thereafter treated them as settled facts of the case, which triggered the respondent’s statutory obligation under § 31-295(c) to pay § 31-308(a) benefits that were due, irrespective of fault or neglect. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: October 23, 2007

Page URL: http://wcc.state.ct.us/crb/2007/5084crb.htm

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