Six v. Thomas O’Connor & Co.

The claimant did not appear at oral argument, as her position is not affected by the issues on appeal.

The respondents, Thomas O’Connor & Co. and GAB Business Services were represented by David A. Kelly, Esq., Montstream & May, P. O. Box 1087, Glastonbury, CT 06033.

Respondent Second Injury Fund was represented by J. Sarah Posner, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the April 8, 1993 Corrected Finding and Award of the Commissioner acting for the First District was heard January 14, 1994 before a Compensation Review Board panel consisting of Commissioners John A. Arcudi, Angelo L. dos Santos, and Nancy A. Brouillet.

OPINION

JOHN A. ARCUDI, COMMISSIONER. Respondents, Thomas O’Connor & Co. and GAB Business Services, appeal the First District January 8, 1993 Finding and Award, as corrected by the April 8, 1993 ruling on appellee Second Injury Fund’s motion to correct.1 The claimant injured his left knee on August 4, 1987 and received §31-307 temporary total disability benefits from August 5, 1987 to January 5, 1988. Claimant also received §31-308(a) temporary partial disability benefits from January 5, 1988 until April 23, 1990, benefits to which he was not entitled, as acknowledged in an agreement dated February 20, 1992.

Because the claimant had a pre-existing physical impairment before the August, 1987 work injury, the employer respondent, by notice to the Second Injury Fund of November 27, 1989, claimed transfer of liability to the Fund pursuant to §31-349 C.G.S. The commissioner found that notice had been completed on April 23, 1990, the date when the February 2, 1990 voluntary agreement was sent to the Fund. This notice was deemed timely in the commissioner’s January 8, 1993 decision, but in the subsequent April 8, 1993 ruling granting the correction sought by the Fund, the April 23, 1990 notice was found to be untimely, and therefore the §31-349 claim for transfer of liability was denied.

“[T]he power and duty of determining the facts rests on the commissioner, the trier of facts . . . . The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979). Among the corrected facts offered by the Second Injury Fund was a finding that “Respondent’s Exhibit A for I.D. purports to be an acknowledgment by the claimant that he was not entitled to temporary total benefits from January 5, 1988 to April 23, 1990”. (Emphasis added.) This was the one change denied by the commissioner in the Fund’s motion to correct. Thus, the finding that “[t]he claimant has acknowledged that he was not entitled to these temporary partial benefits . . . ” is still valid. (Emphasis added).

The commissioner found that claimant received 141 weeks of disability payments from August 5, 1987 to April 23, 1990, but if the weeks from January 5, 1988 to April 23, 1990 are subtracted, then claimant would have only received 21 or 22 weeks of disability by April 23, 1990. Notice by the end of the 22nd week would have complied with the then §31-349 requirement that notice be completed by the 91st week, i.e., ninety days before the expiration of the 104th week. Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382 (1993) held that the “one hundred four weeks” refer “to the first one hundred four weeks of the claimant’s disability, not to the number of weeks the claimant’s employer has paid out-of-pocket benefits”. Id., 393. It is the period that claimant actually experiences disability that controls the notice requirement.

Claimant acknowledged “[t]here would seem to be no entitlement to any disability benefits” after January 5, 1988 in his agreement with the respondents. The commissioner refused the Second Injury Fund’s request to amend his finding in that regard, and there is no other evidence regarding the existence of any actual disability in the findings. Thus, there lacks evidence to support a finding that claimant was disabled between January 5, 1988 and his maximum medical improvement date in 1990. The notice to the Fund under §31-349 after 22 weeks of disability complied with statutory requirements and must be deemed timely, as it was perfected April 23, 1990.

The decision of the commissioner is reversed. This matter is remanded with direction to order the transfer of liability for payments to the Second Injury Fund effective December 16, 1991, the end of the 104th week.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

1An appeal was filed by the Second Injury Fund from the uncorrected version of the Finding and Award, but was subsequently withdrawn. BACK TO TEXT