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CASE NO. 1631 CRB-6-93-1
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 1, 1994
METROPOLITAN INSURANCE CO.
TRAVELERS INSURANCE CO.
SECOND INJURY FUND
The claimant was represented at the trial proceedings by Michael S. Miles, Esq., 35 Pearl Street, New Britain, CT 06051. On appeal the claimant was represented by Lawrence S. Brick, Esq., 836 Farmington Avenue, Suite 210, West Hartford, CT 06119.
The respondents were represented by Janine M. D’Angelo, Esq., Law Offices of Christine L. Harrigan, P.O. Box 9802, New Haven, CT 06536-0802.
The Second Injury Fund was represented by Loida John, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120. The Second Injury Fund did not file a brief or appear at oral argument.
This Petition for Review from the January 14 1993 Finding and Award of the Commissioner acting for the Sixth District was heard January 28, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. doe Santos and Nancy A. Brouillet.
JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the January 14, 1993 Finding and Award of the Commissioner acting for the Sixth District. In that Finding and Award the trial commissioner vacated an earlier ex parte approved Form 36-Notice to Compensation Commissioner and Employee of Intention to Discontinue Payments, and denied the respondents’ request to discontinue payments. The pertinent facts are as follows.
On February 19, 1988 the claimant sustained a back injury when she fell down some stairs while in the course of her employment. The claimant treated with Dr. Jeffrey Steckler, an orthopedic surgeon, for injuries sustained from the February 19, 1988 fall on a continuing basis. Due to a mix-up in Dr. Steckler’s office, medical reports were not forwarded to the respondent insurer after October, 1990.
The respondents filed a Form 36 dated September 10, 1991. That Form 36 stated as its grounds for discontinuance, “No medical treatment has been sought since October of 1990 which is required under section 31-294 of The Connecticut State Statutes”. The district file reveals that the Form 36 was received in the Sixth District Office September 12, 1991 and was stamped “Approved Unless Contested” with a facsimile signature of the commissioner. The Form 36 also contains language providing the following, “THE EMPLOYEE MAY REQUEST A HEARING BY THE COMPENSATION COMMISSIONER ON THE DISCONTINUANCE OR REDUCTION SET FORTH IN THIS NOTICE WITHIN TEN DAYS OF RECEIPT OF THIS NOTICE.”
It was alleged by claimant’s counsel in the formal hearing held in this matter January 9, 1992, that the Form 36 was received in his office sometime in September, 1991, during a period when he was absent from the state. Claimant’s counsel additionally alleged that a clerk in his office mistakenly filed the Form 36. Thereafter, claimant’s counsel sought to have a hearing before the trial commissioner for the purpose of contesting the trier’s September 12, 1991 approval of the Form 36.1
The trial commissioner vacated his earlier approval of the Form 36 on the basis that the approval was “ex parte” and was rendered on the mistaken representation that the claimant was no longer under medical treatment for her February, 1988 work-related injury. The respondents contend on appeal that the trier should not have vacated his September 12, 1991 approval of the Form 36 and that the claimant was no longer seeking medical treatment for her work-related injuries but the medical treatment she was receiving was due to an April 23, 1989 automobile accident.
We first consider whether it was error for the trier to open and vacate his earlier approval of the Form 36. Section 31-315 provides in pertinent part:
Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter shall be subject to modification, upon the request of either party... whenever it appears to the compensation commissioner after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question. (emphasis ours)
Sec. 31-296 provides in pertinent part:
Before discontinuing or reducing payment on account of total or partial incapacity under any such agreement, the employer, if it is claimed by or on behalf of the injured person that his incapacity still continues, shall notify the commissioner and the employee, by certified mail, of the proposed discontinuance or reduction and the reason therefor, and, such discontinuance or reduction shall not become effective unless specifically approved in writing by the commissioner. The employee may request a hearing on any such proposed discontinuance or reduction within ten days of receipt of such notice. (emphasis ours).
It is indeed true that the Commission has a policy that (generally) a Form 36 will be approved unless contested within ten (10) days. See e.g., Platt v. UTC/Pratt & Whitney Aircraft Div., 3 Conn. Workers’ Comp. Rev. Op. 3, 6, n. 3 164 CRD-6-82 (1985). That time period is consistent with Sec. 31-296. However, we note that Sec. 31-296 provides that an “employee may request a hearing on any such proposed discontinuance... within ten days.” We think that the legislature’s use of the term “may” indicates that the time for contesting the Form 36 is directory as opposed to mandatory.
The use of “shall” and “may” which are words “commonly mandatory and directory in connotation, [is] a factor that evidences affirmative selectivity of terms with specific intent to be distinctive in meaning....[They] must then be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings.” Jones v. Civil Service Commission, 175 Conn. 504, 509 (1978).
Farricielli v. Personnel Appeal Board, 186 Conn. 198, 203 (1982).
Additionally our courts have held:
The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience.... If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.” (citations omitted).
Jones v. Mansfield Training School, 220 Conn. 721, 727 (1992).
We think that the “ten day” provision in Sec. 31-296 relates to order, system and dispatch and is therefore directory. Thus, where the ten day provision is not complied with, it is within the commissioner’s discretion as to whether the claimant shall be permitted to challenge an otherwise approved Form 36. In the instant matter, the commissioner recognized his discretionary powers and permitted the claimant to challenge the Form 36’s prior approval.
Furthermore, Sec. 31-315 C.G.S. provides the commissioner with the authority to re-open a matter where “changed conditions of fact have arisen which necessitate a change of such agreement or award in order to properly carry out the spirit of this chapter.” The factual finding by the trier that the facts were not as he presumed given the respondents’ assertion in their Form 36, i.e., “No medical treatment has been sought since October of 1990 which is required under section 31-294...” we think is a changed condition of fact which supports the trier’s reconsideration of the earlier Form 36 approval.
As our Appellate Court noted in Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 541-42 (1992), “While a workers’ compensation award may, under the appropriate circumstances, be opened, the decision to do so and to modify the award is within the sound discretion of the commissioner. Lucarelli v. Earl C. Dodds, Inc., 121 Conn. 640, 645 (1936).” Clearly as the trier vacated his earlier ruling, he obviously found the evidence to be of such character and force that its consideration compelled a different conclusion.
Finally, we consider the respondents claim that there was no evidence to support the trier’s conclusion that the claimant continued to receive medical treatment after October, 1990 for her February, 1988 injury and thus, claimant was not totally disabled. Whether the claimant was temporarily totally disabled is a factual finding within the purview of the trial commissioner. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454 (1951). See also, Woznicki v. Meriden Yellow Cab, 1509 CRB-8-92-9 (decided March 28, 1994); Dickey v. Harris Graphics, 1481 CRB-2-92-8 (decided March 22, 1994); French v. Town of Greenwich, 7 Conn. Workers’ Comp. Rev. Op. 115, 698 CRD-7-88-2 (1989).
The claimant’s treating physician, Dr. Jeffrey Steckler, testified before the commissioner. Our review of the testimony indicates that the trier’s factual findings and conclusion were based on reasonable inferences derived from the testimony of Dr. Steckler. See e.g.; Transcript of January 9, 1992 Formal Hearing pp. 9-20, 35-36, 48, 51-52. See also Dr. Steckler’s November 12, 1991 letter, Claimant’s Exhibit 1. We, thus, will not disturb the conclusion of the commissioner.
We therefore affirm the Finding and Award of the trial commissioner. Pursuant to Sec. 31-301c(b) we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.
Commissioner Angelo L. dos Santos and Nancy A. Brouillet concur.
1 The district file contains a November 18, 1991 letter from claimant’s counsel to the commissioner contesting the approval of the Form 36. We also note that the respondents on appeal claimed that the trier’s factual finding as to the events surrounding the receipt of the Form 36 in claimant’s counsel’s office were without evidence. Our review of the Transcript of the Formal Hearing of January 9, 1992 reveals the attorney’s statements as to the Form 36 receipt. See TR pp. 3-5. While we note that the trial commissioner probably should have sworn in the attorney and permitted him to testify as to the factual circumstances at issue, we think the respondents failure to object at the time of the formal hearing effectively to waived this defect. BACK TO TEXT
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