Liano v. City of Bridgeport

The respondent was represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the September 23, 1996 Finding and Award of the Commissioner acting for the Fourth District was heard May 23, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the September 23, 1996 Finding and Award of the trial commissioner acting for the Fourth District. In that decision, the trial commissioner found that the claimant had a light duty work capacity and thus denied the claimant’s request for temporary total disability benefits pursuant to § 31-307. In addition, the trial commissioner found that the respondents were entitled to a credit for benefits which had been advanced to the claimant subsequent to September 21, 1994. In support of his appeal, the claimant contends that he continues to be temporarily totally disabled. In addition, the claimant contends that because his claim is for benefits under § 7-433c, therefore the provisions of the Workers’ Compensation Act, such as for the filing of a Form 36, do not apply to his claim.

Section 7-433c provides compensation for police officers and firefighters who suffer from heart disease or hypertension. “Unlike eligibility for benefits under the Workers’ Compensation Act, a claimant under § 7-433c need not show that ‘the disease resulted from the employee’s occupation or ... occurred in the line and scope of his employment.’” Zaleta v. Fairfield, 38 Conn. App. 1, 5 (1995) (citations omitted). Accordingly, § 7-433c has been labeled “bonus legislation” which provides “special compensation.” Id. Nevertheless, the procedure for determining recovery under § 7-433c is the same procedure as under the Workers’ Compensation Act. Id. at 6; see also Janco v. Town of Fairfield, 39 Conn. Sup. 403, 405 (1983). Indeed, § 7-433c specifically states that compensation is to be paid “in the same amount and the same manner as that provided under Chapter 568 (the Workers’ Compensation Act).” Sec. 7-433c; see also Janco, supra, 405-6.

Accordingly, the procedure regarding the filing of a Form 36 (“Notice of Intent to Discontinue Benefits”) applies to claims under § 7-433c. In the instant case, the trial commissioner took judicial notice of a prior decision issued by anther trial commissioner on October 18, 1995 which granted the respondents’ Form 36 effective September 21, 1994. That decision was affirmed by the Compensation Review Board in Liano v. City of Bridgeport, Case No. 3199 CRB-4-96-2 (March 25, 1997). The trial commissioner in the instant case thus found that the weekly benefits paid to the claimant subsequent to September 21, 1994 should be considered to be advances against the award of permanent partial disability.1 (Findings d and e). We find no error.

We will now consider the claimant’s contention that he is entitled to continued temporary total disability benefits. Section 31-307 provides benefits when a compensable injury results in a claimant’s “total incapacity to work.” Section 7-433c “did not create a permanent total disability benefit.” Mascata v. Stamford, 5 Conn. Workers’ Comp. Rev. Op. 144, 146, 377 CRD-7-85 (July 22, 1988) (emphasis added); see also Herwerth v City of Groton, Case No. 3105 CRB-2-95-6 (Dec. 24, 1996), aff’d. 45 Conn. App. 922 (1997). A claimant who receives benefits pursuant to § 7-433c must satisfy the requirements of § 31-307 in order to receive temporary total disability benefits. Mascata, supra.

We have repeatedly held that whether a claimant is totally disabled from working is a question of fact for the trial commissioner to determine. Coutu v. Interroyal Corp., 13 Conn. Workers’ Comp. Rev. Op. 215, 1680 CRB-2-93-3 (April 12, 1995); Vuoso v. Custom Gunite Pools, 13 Conn. Workers’ Comp. Rev. Op. 50, 51, 1581 CRB-7-92-12 (Dec. 7, 1994). We will not disturb a trial commissioner’s factual determination unless the conclusions are contrary to law, or based on impermissible or unreasonable factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

In the instant case, the trial commissioner’s denial of the claimant’s request for temporary total disability benefits commencing October, 1995 is amply supported by the record. (See Findings No. 6, 10-15, and 21-22). We conclude that it was within the discretion of the commissioner to determine that the claimant was no longer totally disabled pursuant to § 31-307.

The trial commissioner’s decision is affirmed.

Commissioners James J. Metro and John A. Mastropietro concur.

1 We note that at oral argument the respondents’ attorney explained that the temporary total disability benefits had been paid at a higher weekly benefit rate than the permanent partial disability benefits, and thus the credit was made on a dollar-for-dollar basis rather than a weekly basis. BACK TO TEXT