Crowe v. DBD, Inc.

The claimant was represented by James Kernan, Esq., Kernan & Henry, First Federal Plaza, P. O. Box 2156, Waterbury, CT 06722. Counsel did not appear at oral argument. The matter was decided on the papers submitted and record before the Compensation Review Board.

The respondents were represented by Howard I. Levine, Esq., Law Offices of Grant H. Miller, Jr., 29 South Main St., West Hartford, CT 06107-2445.

This Petition for Review from the December 20, 1993 Finding Dismissal and Award of the Commissioner acting for the Seventh District was heard December 16, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the December 20, 1993 Finding Dismissal and Award of the Commissioner for the Seventh District. The claimant argues that the commissioner erred by retroactively approving the respondents’ Form 36. We reverse the trial commissioner’s decision.1

The claimant was employed by the respondent employer on November 30, 1990, when he injured his right upper extremity, including his right hand. A voluntary agreement was approved on October 15, 1991. Although the claimant alleged continuing total disability, the respondents filed a Form 36 seeking to discontinue total disability benefits, which the commissioner granted effective August 30, 1992, with permanent partial disability benefits retroactively commencing on April 30, 1992. The commissioner concluded that April 30, 1992 was the maximum medical improvement date based on the medical reports, and dismissed the claimant’s appeal from the granting of the Form 36. She also found that the claimant was entitled to 50 percent permanent partial disability of the right upper extremity. The claimant appealed from that decision.

In the claimant’s Motion to Correct, he sought to alter the finding as to the percentage of his permanent partial disability. The commissioner granted the motion, and issued an Amended Finding and Award changing the claimant’s specific indemnity award to 60 percent of the right upper extremity. The claimant did not, however, challenge the finding as to the date of his maximum medical improvement in the Motion to Correct. Therefore, we are bound by that factual finding on appeal. See Wright v. Institute of Professional Practice, 1790 CRB-3-93-8 (decided April 18, 1995). Our review is accordingly limited to a determination of whether the commissioner correctly applied the law to the facts found.

The respondents filed Forms 36 on February 11, 1992, February 12, 1992, and October 12, 1992, each time seeking to discontinue the claimant’s total disability benefits. The first and second forms were not approved by the commissioner. At a hearing on December 9, 1992, the commissioner approved the most recent Form 36 effective August 30, 1992, with permanent partial disability benefits retroactively commencing on April 30, 1992. The claimant argues that this was improper under § 31-296 C.G.S.,2 as payments under a voluntary agreement cannot be discontinued until a hearing is completed if the Form 36 is contested.

The outcome of this case is controlled by our recent decision in Stryczek v. State of Connecticut/Mansfield Training School, 1765 CRB-2-93-6 (decided May 4, 1995). There, the respondents filed a Form 36 on August 8, 1988, but the commissioner did not discontinue benefits until November 14, 1991, the date of the last formal hearing. We held that, in granting a Form 36, the commissioner should discontinue benefits effective on the filing date of the form unless extenuating circumstances support the use of a later date. “When Form 36 procedure is considered in conjunction with § 31-307, it becomes evident that the legislature intended that a claimant should stop receiving total disability benefits as soon as possible after his or her incapacity ceases, effective on the date the incapacity ceases. There is no imaginable reason why the legislature would intend a different result where a voluntary agreement is in effect.” Id. We also noted that § 31-296 requires a commissioner to wait before approving a Form 36, but does not speak directly to the effective date of such approval.

“Here, there is no dispute that the Form 36 approved by the commissioner on December 9, 1992 was dated October 12, 1992.” Despite the fact that the claimant reached maximum medical improvement on April 30, 1992, the earliest date on which termination of benefits can become effective is the filing date of the Form 36. Stryczek, supra; Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 44, 1111 CRD-4-90-9 (Jan. 28, 1992). We hold that the case must be remanded for entry of an order approving the Form 36 and terminating total disability benefits as of the date the Form 36 was filed.

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

1 A cross-appeal filed by the respondents was withdrawn on October 17, 1994. BACK TO TEXT

2 Section 31-296 provides in relevant part: “Before discontinuing or reducing payment on account of total or partial incapacity under any [voluntary] 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 of such payments, with the date of such 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 receipt of such notice . . . . The commissioner shall not approve any such discontinuance or reduction prior to the expiration of the period for requesting a hearing or the completion of such hearing, whichever is later.” BACK TO TEXT