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Schiano v. Bliss Exterminating

CASE NO. 1341 CRD-4-91-11

CASE NO. 1852 CRB-4-93-9



DECEMBER 7, 1994













The claimant was represented by Richard G. Kascak, Jr., Esq., Mihaly & Kascak, 925 White Plains Road, Trumbull, CT 06611.

The respondent employer and respondent insurer were not represented at oral argument.

The respondent Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the September 16, 1993 Finding and Award of the Commissioner for the Fourth District was heard February 25, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Nancy A. Brouillet.


JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the Fourth District Commissioner’s September 16, 1993 Finding and Award. The claimant suffered a compensable work-related back injury in an accident occurring on February 25, 1986. His claim was transferred to the Second Injury Fund on April 12, 1988 pursuant to §31-349. A voluntary agreement approved in April of 1989 established that the claimant was fifty percent permanently partially disabled and was entitled to 260 weeks of specific disability benefits pursuant to §31-308(b). The claimant was also found to be temporarily totally disabled from October 15, 1989 onward.

Meanwhile, the claimant brought a negligence action against the third party responsible for the accident. The employer and the Second Injury Fund both intervened pursuant to §31-293 (a). The action was ultimately settled for $70,000, of which the claimant and his wife received $30,000 as compensation for his injuries and his wife’s loss of consortium. The employer’s insurer, which had a lien for $62,358, received $12,500 of the proceeds, and the Second Injury Fund, which had a lien for over $100,000, received $10,000 of the proceeds. The commissioner found that, as a result of this settlement, the claimant and the Second Injury Fund reached a “moratorium” agreement which applied to 108 weeks of specific disability benefits and would be deducted from any unpaid specific disability benefits. He further found that an additional hearing would be required to determine the amount of benefits paid. The claimant has appealed from that decision.1

The claimant disagrees with the commissioner’s conclusion that General Statutes §31-293 entitles the Second Injury Fund to a credit for workers’ compensation benefits paid by the Fund where the claimant received a settlement against a third-party tortfeasor for an amount less than the amount of the Second Injury Fund’s lien. He argues that under Enquist v. General Datacom, 218 Conn. 19 (1991), only the excess of a claimant’s recovery from a third party over the amount of past compensation that an employer has become obligated to pay can be used as a credit by an employer against liability for future payments. Where, as in this case, the recovery in the third party action is less than the employer’s lien, the claimant contends that the employer (or Second Injury Fund) is not entitled to a continuing offset credit.

We think that both the language of §31-293(a) and Enquist were properly interpreted by the commissioner.2Enquist held that the “claim of the employer” which takes precedence over the claim of the injured employee pursuant to the statute includes “an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury.” Enquist v. General Datacom, supra, 218 Conn. 23-24. It also held that “an employer is entitled to a credit for unknown future benefits against the net proceeds of a third party recovery...”. Id., 26. There is nothing in either Enquist or Love v. J.P. Stevens & Co., 218 Conn. 46 (1991), to indicate that an employer who has not recovered enough in a civil suit to fully reimburse it for claims paid to an injured employee loses its right to credit the amount of a claimant’s award in the same suit against compensation payments not yet paid to the claimant. Indeed, such a result would contravene the established policy against an employee receiving compensation for the same injury from both the third party wrongdoer and the employer. Enquist v. General Datacom, supra, 26. We conclude that the language of §31-293 (a) is consistent with the commissioner’s finding that the Second Injury Fund is entitled to an offset for specific disability benefits due the claimant.

The claimant also disputes the commissioner’s finding that the parties had agreed to a “moratorium” on benefits which should apply to specific disability benefits. The claimant asserts that there was in fact no “meeting of the minds” by which the existence of a contract could be found. We disagree. Although the claimant did introduce evidence supporting his position that he had never agreed to a $30,000 credit in favor of the Second Injury Fund, there was also testimony that the claimant’s attorney in fact understood that the Fund was proposing a credit rather than a mere postponement of benefits, and that this credit would be taken against whatever benefits were currently being paid, i.e., permanent partial disability benefits. The commissioner was entitled to rely on that testimony, and we will not substitute our findings for his. See Fair v.People’s Savings Bank, 207 Conn. 535 (1988). Moreover, the commissioner’s finding is consistent with §31-293, which, as discussed above, entitles an employer to an offset for funds recovered by a claimant in a third party action. We do point out, however, that the statute does not specifically authorize the commissioner to enforce the credit against permanent partial disability benefits as opposed to temporary total disability benefits. See Raccio v. Townsend Industries, 10 Conn. Workers’ Comp. Rev. Op. 12, 946 CRD-3-89-11 (1991).

The claimant further asserts that it was improper for the commissioner to find that the “moratorium” applied to the entire $30,000 received by the claimant and his wife in the settlement with the third party, as there was no finding made as to how much of that amount was received in settlement of the loss of consortium claim. We agree. Section 31-293’s employer entitlement to a credit for amounts recovered from a third party does not extend to a settlement received by a claimant’s spouse for damages resulting from her loss of the claimant’s consortium. This case must be remanded and a finding made as to how much, if any, of the third-party settlement was made in satisfaction of the loss of consortium claim.

We find no support for the claimant’s assertion that the commissioner improperly concluded that the evidence regarding the payment of benefits was unclear and required a further hearing. The commissioner is hardly expected to render a decision on insufficient evidence if a subsequent hearing would clarify the matter. This is not the equivalent of a decision maker improperly failing to exercise his discretion, e.g. State v. O’Neill, 200 Conn. 268 (1986). It would be ridiculous for this Board to require commissioners to issue findings based on insufficient evidence, and we decline to do so.

The matter is remanded to the commissioner for further proceedings consistent with this opinion.

Commissioners Michael S. Miles and Nancy A. Brouillet concur.

1 The claimant filed a motion for judgment of default for lack of diligence in defending the appeal on the ground that the appellee Second Injury Fund filed a copy of its trial brief in lieu of a proper appellee’s brief addressing the issues raised on appeal by the claimant (see Practice Book § 4066), and did so two days before oral argument, thus prejudicing the claimant. We decline to exercise our discretion to set aside the judgment of the trial commissioner pursuant to Practice Book § 4055. We did, however, grant the claimant’s motion to strike the brief of the Second Injury Fund, and prohibited the Fund’s counsel from raising new issues at oral argument pursuant to Practice Book § 4108. BACK TO TEXT

2 General Statutes §31-293 (a) provides in relevant part that “[i]f the employer and the employee join as parties plaintiff in the action and any damages are recovered, the damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of the recovery . . . . The rendition of a judgment in favor of the employee or the employer against the third party shall not terminate the employer’s obligation to make further compensation which the commissioner thereafter deems payable to the injured employee. If the damages . . . are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee. . . . For the purposes of this section, the claim of the employer shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of the injury.” BACK TO TEXT

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