Kronenberger v. AETNA Life & Casualty

The claimant was not represented at oral argument. Notice sent to Angelo Cicchiello, Esq., 364 Franklin Ave., Hartford, CT 06114.

The employer and its insurer were represented by Stephen Ekern, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

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

This Petition for Review from the January 11, 1996 Finding and Dismissal of the Commissioner acting for the Eighth District was heard October 11, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The employer and its insurer (hereinafter “respondent”) has petitioned for review from the January 11, 1996 Finding and Dismissal of the trial commissioner acting for the Eighth District. In that decision, the trial commissioner concluded that the respondent failed to provide timely notice to the Fund of its request to transfer liability pursuant to § 31-349. The respondent argues on appeal that in determining the 104 week period of disability, the trial commissioner erred by including the period from December 13, 1990 through April 30, 1991. We affirm the trial commissioner’s decision.

The trial commissioner found that the claimant sustained a compensable injury on February 17, 1986, which was the subject of an approved voluntary agreement. The respondent filed its notice of intent to transfer pursuant to § 31-349 with the Fund on February 26, 1991. The trial commissioner further found that the claimant was entitled to and did receive benefits for temporary total disability for the following periods: February 17, 1986 through February 25, 1986; April 24, 1989 through December 12, 1990; and May 1, 1991 through September 14, 1992. In addition, the trial commissioner found that the claimant was disabled from December 13, 1990 through April 30, 1991. The trial commissioner thus concluded that the respondent’s notice of February 26, 1991 was untimely as it was not filed within ninety days prior to the expiration of the claimant’s first one-hundred-four-weeks of disability as required by § 31-349. Specifically, the trial commissioner determined that the 104th week of disability occurred on April 14, 1991 and thus, in order to be timely, notice must have been received by the Fund on or before January 15, 1991.

In support of its appeal, the respondent argues that in determining the 104 week period of disability, the trial commissioner erred by including the period from December 13, 1990 through April 30, 1991. Specifically, the respondent argues that because the claimant signed a Stipulation which stated that the claimant was not entitled to receive benefits from December 13, 1990 through April 30, 1991, therefore said period should not be counted in the 104-week calculation under § 31-349. We disagree.

Section 31-349 (rev. to 1985) provides in relevant part: “As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier must, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case . . . .” The one-hundred-four-week period refers not to the number of weeks of benefits paid to the claimant, but rather to the “first one hundred four weeks of the claimant’s disability.” Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 391 (1993). We have held that a claimant’s restriction to light duty was sufficient evidence that the claimant was disabled within the meaning of Vaillancourt, despite the fact that he “did not request benefits during this period, and may or may not have been entitled to benefits....” Lillo v. Dichello Distributors, 14 Conn. Workers’ Comp. Rev. Op. 1, 3, 1843 CRB-3-93-9 (April 28, 1995). In Lillo, supra, the claimant’s restriction to light duty prevented him from returning to his former position and instead he returned to a janitorial position at a reduced rate of pay. Compare Innocent v. St. Joseph’s Medical Center, Case No. 3114 CRB-7-95-7 (Jan. 10, 1997) (trial commissioner found claimant was not disabled during period she returned to light duty in her former position at same rate of pay).

Moreover, in Six v. Thomas O’Connor & Co., 235 Conn. 790 (1996), our Supreme Court addressed the issue of the determination of the 104 week period of disability where the claimant had signed an agreement which stated that he was not entitled to receive workers’ compensation benefits for a certain period. The court concluded that where the facts supported a determination that the claimant was actually disabled during said period, the trial commissioner was correct in not excluding those weeks from the determination of the 104 week period of disability. The court found that the claimant’s restriction to light duty during the period in question supported the trial commissioner’s conclusion that he was disabled, despite his agreement to the contrary. Id. at p. 800.

Similarly, in the instant case the trial commissioner was not required to omit the period from December 13, 1990 through April 30, 1991 in calculating the 104 week period merely because the claimant had signed a stipulation which stated that she was not disabled during that period. Rather, the trial commissioner was entitled to review the record and determine whether the claimant was actually disabled. Significantly, the trial commissioner found that the medical reports of Dr. Calderon and Dr. Becker established “that the claimant was actually disabled during the period December 13, 1990 through April 30, 1991.” (Finding B). This determination of actual disability is supported by the medical evidence, including Dr. Calderon’s release of the claimant to light duty work with numerous restrictions in a report dated December 27, 1990. (Finding No. 11).

“The board . . . must not disturb the commissioner’s conclusion as long as it is sustainable by the underlying facts.” Six, supra, at 801. The commissioner acts as the fact-finder in a workers’ compensation case, and is charged with determining the credibility of evidence; this board must not usurp that function. Id., 798-99; Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979). In the instant case, the trial commissioner’s determination that the claimant was disabled from December 13, 1990 through April 30, 1991 is amply supported by the record, and thus may not be disturbed.

The trial commissioner’s decision is affirmed.

Commissioner George Waldron concurs.

COMMISSIONER ROBIN L. WILSON, CONCURRING. I concur with the majority’s conclusion that the respondent in the instant case failed to file timely notice with the Fund in accordance with § 31-349. I further concur with the holding that the determination of whether the claimant was disabled pursuant to § 31-349 was an issue of fact for the trial commissioner to determine, and was not dependent upon the stipulation signed by the claimant.

I write separately in order to distinguish Innocent v. St. Joseph’s Medical Center, 3114 CRB-7-95-7 (decided Jan. 10, 1997) and to further elaborate on what I believe to be the Supreme Court’s ruling in Six, supra. In Innocent, supra, the trial commissioner found that the claimant’s period of light duty employment should not be counted in determining the 104 week period under § 31-349 where the claimant had returned to work at her former position as a housekeeper at her regular rate of pay. The board affirmed the trial commissioner’s decision because there was sufficient evidence in the record to support the determination that the claimant was not disabled and was not entitled to receive workers’ compensation benefits during that period.

Furthermore, it is my opinion that the Six, supra, case cited by the majority is strictly limited to the facts of that case. The Supreme Court in Six, supra, emphasized that this board “must not disturb the commissioner’s conclusion as long as it is sustainable by the underlying facts...” Six, supra, at 801. In that decision, the court concluded that an agreement entered into by the claimant wherein the claimant stated that he was not entitled to any disability benefits for a certain period did not preclude the trial commissioner from finding that the claimant was indeed disabled pursuant to § 31-349. Significantly, the court stated:

Six, supra, at 801; see also Kelley v. New England Railroad Construction Co., 45 Conn. App. 448 (1997).

The court thus concluded that where the trial commissioner’s determination that the claimant was disabled during said period was supported by the underlying facts, they were not going to disturb such finding. The issue of whether the court would have affirmed the trial commissioner’s decision if the trial commissioner had determined that the claimant was not entitled to receive any benefits under the Workers’ Compensation Act was not addressed in Six, supra. It is my opinion that given the court’s analysis in Six, supra, had the commissioner made a finding of nonentitlement, and said finding was supported by the evidence, the obvious outcome would be that said finding would not be disturbed, thus rendering the respondent’s notice to the Fund timely.

It is also my opinion that where a claimant is as a matter of law not entitled to receive any benefits under the Workers’ Compensation Act, it would be an abuse of discretion for a trial commissioner to count such weeks in determining the 104 week period under § 31-349. I thus take exception to the statement in Lillo, supra, that a claimant’s restriction to light duty was sufficient evidence that the claimant was disabled pursuant to § 31-349 where the claimant “may or may not have been entitled to benefits....” Lillo, supra, at 3.

The court in Six, supra, did not address the issue of whether the determination of the 104 weeks of disability may include periods of time where a claimant is as a matter of law not entitled to receive benefits under the Workers’ Compensation Act. “It is a general rule that a case resolves only the issues explicitly decided in the case.” Civardi v. Norwich, 231 Conn. 287, 300 (1994), quoting State v. Ouellette, 190 Conn. 84, 91 (1983). The traditional doctrine is that the precedential value of a decision should be limited to the four corners of the factual setting in that decision. State v. Ouellette, supra, at 91, citing, inter alia, Armour & Co. v. Wantock, 323 U.S. 126, 132-33, 65 S. Ct. 165, 89 L. Ed. 118 (1944), reh. denied, 323 U.S. 818, 65 S. Ct. 427, 89 L. Ed. 649 (1945). Thus, Six, supra, is not controlling regarding the issue of whether a claimant may be deemed disabled pursuant to the § 31-349 notice provision when the claimant is not entitled to receive workers’ compensation benefits as a matter of law or when the trial commissioner makes a finding of nonentitlement which is supported by the record.