State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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CRB Case Annotations re: Section 31-301(f)

Payments pending appeal.

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THESE ANNOTATIONS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY

Full texts of opinions, statutes and court decisions should be consulted and all citations and references fully researched by the reader.

The Annotations to Compensation Review Board Opinions are presented “as is” and the Commission makes no warranties as to the suitability of this information for any given purpose.
Please note also that Annotations change periodically due to several factors including, but not limited to, Appellate and Supreme Court decisions issued in workers’ compensation cases.

Hummel v. Marten Transport, Ltd., 5303 CRB-5-07-11 (May 14, 2008), aff’d, 114 Conn. App. 822 (2009), cert. denied, Conn. (2009).

Following remand, trial commissioner levied monetary penalties on respondent for failing to make payments pending appeal. Commissioner assessed 20% penalty on unpaid survivor’s benefits and burial benefits and awarded claimant legal fees for hearings where post-appeal relief was sought. Respondents appealed and CRB upheld trial commissioner. Respondent’s argument that they had meritorious appellate issues does not relieve them of obligations under § 31-301(f) C.G.S., see Gerte v. Logistec Connecticut, Inc., 5086 CRB-3-06-5, 5116 CRB-3-06-7 (April 27, 2007). See also, Hummel § 31-300 C.G.S., § 31-303 C.G.S.

Gerte v. Logistec Connecticut, Inc., 5086 CRB-3-06-5, 5116 CRB-3-06-7 (April 27, 2007).

Respondent appealed order of benefits following remand to trial commissioner in accordance with decision in Gerte v. Logistec of CT., 4820 CRB-3-04-06, (Gerte I). Respondent’s appeal continues to assert want of jurisdiction. CRB upheld award, reaffirming Gerte I. Respondents challenged order for payments pending appeal asserting such an order was void due to lack of jurisdiction. CRB upheld trial commissioner. There is no precedent wherein a jurisdictional dispute relieves respondent of obligation to pay pending appeal, mechanism exists under § 31-301(g) C.G.S. to recover sums advanced if respondent prevails at the Supreme Court on its appeal. See also, Gerte, § 31-278.

Hummel v. Marten Transport, LTD., 5080 CRB-5-06-4 (April 19, 2007), aff’d, 114 Conn. App. 822 (2009), cert. denied, Conn. (2009).

CRB affirmed trier’s award for sanctions and penalties where respondents made no payments following 31-301(f) order. Further, respondents’ arguments that payment of dependent’s benefits were not due on the basis of § 31-307(e) and a theory of double recovery were found to be without merit and thus, no basis for relief from § 31-301(f) existed. See, Hummel v. Marten Transport, LTD, 5080 CRB-5-06-4 (April 19, 2007) § 31-288, § 31-300, § 31-303, § 31-306, § 31-307(e).

Sullo v. State/Judicial Branch, 4796 CRB-1-04-3, 4831 CRB-1-04-7, 4978 CRB-1-05-7 (September 8, 2006).

Claimant is entitled to full amount of total disability payments pending appeal, regardless of whether a separate contract exists to pay a portion of payments as attorney’s fees. Respondent is not entitled to invoke § 31-327 and obtain discovery of fee agreement in order to protect itself in event claimant cannot repay benefits if award overturned on appeal. See also, Sullo, § 31-275(1), § 31-275(16), § 31-308(b).

Hicking v. State/Department of Correction, 4935 CRB-2-05-4 (April 10, 2006).

Decision reached on underlying appeal made appeal of § 31-301(f) order moot; original Finding and Award was enforceable against all parties. Decision on underlying appeal has res judicata effect regarding those issues and § 31-308a. Prior decision at Hicking, 4825 CRB-2-04-6 (July 14, 2005).

Horn v. State/Dept. of Correction, 4764 CRB-3-03-12 (January 24, 2005).

Statute requires employer/insurer to make payment of benefits pending appeal upon request by the claimant, rather than after entry of a separate § 31-301(f) award. See also, Horn, § 31-298, § 31-301(g). Prior decisions at Horn, 4177 CRB-3-00-1 (February 22, 2001), § 31-301. Factual findings, § 5-145a; Horn, 3727 CRB-3-97-11 (December 16, 1998), § 31-294c, § 5-145a.

Bailey v. State, 4744 CRB-1-03-10 (December 3, 2004).

See, Bailey, § 31-301(g); See also, Bailey, § 31-298.

Hummel v. Marten Transport, LTD., 4760 CRB-5-03-12 (November 19, 2004).

CRB remanded case to trier in order to make a specific order of benefits to be paid. See also, Hummel, § 31-307. Prior decision at Hummel, 4667 CRB-5-03-5 (May 3, 2004), appeal dismissed for lack of final judgment, 90 Conn. App. 9 (2005), cert. granted, 275 Conn. 913 (2005). Appellate court reasoned the determination of the amount of benefits to be paid was still pending before the trial commissioner, therefore, the case was dismissed for lack of final judgment.

Soares v. Glass Industries, 4140 CRB-3-99-10 (April 10, 2001).

CRB affirmed trier’s denial of Second Injury Fund’s § 31-301(g) claim. Fund sought reimbursement from insurer of overpayments made to claimant while Fund was paying pending appeal pursuant to § 31-301(f). Under statute, claimant must ultimately make restitution, as he is the one unjustly enriched. See also, Soares, § 31-300. Prior decision at Soares, 12 Conn. Workers’ Comp. Rev. Op. 189, 1377 CRB-3-92-1 (May 4, 1994), § 31-297, § 31-300, § 31-307b, § 31-315.

Karnane v. Saks Fifth Avenue, 4214 CRB-7-00-3 (March 29, 2001).

See, Karnane, § 31-349 (§ 31-301(f) was not dispositive in this case because appeal was taken from transfer order rather than from an award of benefits). Prior decisions at Karnane, 3918 CRB-7-98-10 (January 7, 2000), and Karnane, 3947 CRB-7-98-12 (November 7, 2000), aff’d, 67 Conn. App. 385 (2001).

Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001).

See, Mosman, § 31-298.

Muldoon v. New England Installation, 3552 CRB-4-97-3 (August 24, 1998).

See, Muldoon, § 31-300. Prior decision at Muldoon, 10 Conn. Workers’ Comp. Rev. Op. 255, 1226 CRD-4-91-5 (January 13, 1993), rev’d, 33 Conn. App. 695 (1994), rev’d, 231 Conn. 469 (1994), aff’d on remand, 37 Conn. App. 266 (1995); Muldoon, 3345A, 3345B CRB-4-96-5 (November 3, 1997); Muldoon, 3415 CRB-4-96-8 (November 3, 1997).

Dowling Considine v. Slotnik, 3468 CRB-4-96-11 (May 6, 1998).

See, Dowling, § 31-290, § 31-296, § 31-301. Appeal procedure. Prior decision at Dowling, 3062 CRB-4-95-5, 3277 CRB-4-96-2 (February 5, 1997), aff’d, rev’d and remanded in part, 244 Conn. 781 (1998)(with dissenting opinion) at § 31-275(9), § 31-288, § 31-301. Appeal procedure, § 31-307.

Coley v. Camden Associates, Inc., 3432 CRB-2-96-9 (February 28, 1997), rev’d, 243 Conn. 311 (1997).

Amendment to statute in P.A. 95-277 made employer or insurer liable for unpaid awards pending appeal instead of Second Injury Fund. CRB held that this change did not have a retroactive effect, despite Annechiarico v. Friendly Ice Cream Co., 6 Conn. Workers’ Comp. Rev. Op. 18, 640 CRD-7-87 (September 16, 1988). Good sense and justice require interpretation of statute consistent with remedial spirit of Workers’ Compensation Act. Allowing Fund’s layer of protection to be removed makes a claimant less likely to receive benefits until his appeal is resolved, as happened in this case. CRB will not read statute to affect more claimants than required by the express language of the amended statute. Use of “date of injury” rule affirmed. Reversed by Supreme Court, which held that the legislative change must be applied retroactively. The court explained that the legislation was procedural in nature and did not affect the parties’ substantive rights, and that the legislative intent to reduce the financial burden on the Fund would be undermined if it were applied prospectively only. Subsequent decision at Coley, 3432 CRB-2-96-9 (April 6, 1998), § 31-300, § 31-301. Appeal procedure, § 31-301. Factual findings, § 31-343.

Yablonski v. Danbury Hospital, 15 Conn. Workers’ Comp. Rev. Op. 166, 3107 CRB-7-95-7 (February 13, 1996).

The commissioner’s order that the Fund pay compensation benefits pursuant to § 31-301(f) C.G.S is not proper as there was no underlying order that the employer or its insurer pay the claimant any specified benefits.

Pereira v. Taylor & Fenn Co., 14 Conn. Workers’ Comp. Rev. Op. 16, 1816 CRB-1-93-8 (April 28, 1995).

Where underlying order being appealed is against Second Injury Fund itself, the Fund is still required to pay the award pending outcome of the appeal. See also, Pereira, § 31-298.

Laine v. New England Aircraft, 6 Conn. Workers’ Comp. Rev. Op. 138, 536 CRD-6-86 (April 5, 1989).

See, Annechiarico, § 31-301(f) infra [formerly 31-301(b)].

Brown v. Bon Dental Lab, 6 Conn. Workers’ Comp. Rev. Op. 132, 594 CRD-7-87 (March 28, 1989).

See, Annechiarico, § 31-301(f) infra [formerly 31-301(b)].

Waddington v. Electric Boat Division of General Dynamics, 6 Conn. Workers’ Comp. Rev. Op. 127, 720 CRD-2-88-4 (March 27, 1989).

See, Annechiarico, § 31-301(f) infra [formerly 31-301(b)].

Besade v. Interstate Security Services, 6 Conn. Workers’ Comp. Rev. Op. 83, 593 CRD-2-87 (January 13, 1989), no error, 212 Conn. 441 (1989).

Second Injury Fund liable for payment pending appeal even though claim predated statute’s enactment. Subsequent decision at Besade, 12 Conn. Workers’ Comp. Rev. Op. 103, 1383 CRB-2-92-2 (February 28, 1994), aff’d, 37 Conn. App. 903 (1995).

Annechiarico v. Friendly Ice Cream Co., 6 Conn. Workers’ Comp. Rev. Op. 18, 640 CRD-7-87 (September 16, 1988).

Application of law permitting payment of benefits pending appeal may be applied retrospectively.

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