CASE NO. 3467 CRB-02-96-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 9, 1998
RIDGES MANUFACTURERS OUTLET CO.
HARTFORD INSURANCE GROUP
SECOND INJURY FUND
The claimant did not appear at oral argument.
The employer and its insurer were represented by Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.
The respondent Second Injury Fund was represented by Yinxia Long, Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the October 22, 1996 Finding and Award of the Commissioner acting for the Second District was heard June 13, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.
JESSE M. FRANKL, CHAIRMAN. The respondent Second Injury Fund (“Fund”) has petitioned for review from the October 22, 1996 Finding and Award of the Commissioner acting for the Second District. In that decision the trial commissioner determined that the employer provided timely notice of intent to transfer to the Fund pursuant to § 31-349. In support of its appeal, the Fund contends that for purposes of the notice provision of § 31-349, the trial commissioner failed to include the period during which the claimant had returned to light duty work at her same or higher rate of pay. The Fund thus contends that the employer failed to provide timely notice to the Fund.
We will first address the respondents’ Motion to Dismiss the Fund’s appeal based upon the Fund’s late filing of its Reasons of Appeal. The Fund’s Reasons of Appeal were filed one day late. The respondents do no allege that they suffered any prejudice due to this one day late filing. We deny the Motion to Dismiss.
The trial commissioner found the following relevant facts. On October 22, 1990 the claimant sustained a compensable injury to her back while working for the respondent employer. The parties agree that the claimant suffered from a preexisting condition which made the October 22, 1990 injury materially and substantially greater. The claimant was temporarily totally disabled from October 30, 1990 through September 22, 1991. On September 23, 1991 the claimant returned to light duty work, and was paid temporary partial disability benefits from September 23, 1991 to September 27, 1991. From September 28, 1991 through June 8, 1992 the claimant was employed in a light duty status and earned at least as much as she had prior to the injury. Subsequently, the claimant was again temporarily totally disabled from June 9, 1992 through September 27, 1992. The claimant returned to light duty work on September 28, 1992, and received temporary partial disability benefits from September 28, 1992 until October 4, 1992. From October 5, 1992 to March 30, 1993 the claimant worked in a light duty status but was not entitled to benefits because she did not have a reduction of earnings. On March 31, 1993 the claimant once again became temporarily totally disabled through October 12, 1993. From October 13, 1993 to February 14, 1994, the claimant returned to light duty work at the same pay and the same number of hours as prior to her October 22, 1990 injury. The claimant reached maximum medical improvement on February 14, 1994.
Section 31-3491 (Rev. to 1987) provides in relevant part: “As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier shall, 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 . . . .” We have stated that “(s)trict compliance with this provision is required in order to transfer liability under this section.” Pereira v. Taylor & Fenn Company, 14 Conn. Workers’ Comp. Rev. Op. 16, 17, 1816 CRB-1-93-8 (April 28, 1995) (citations omitted).
In the instant case, in determining the 104 week notice period contained in § 31-349, the trial commissioner did not include the weeks during which the claimant worked in a light duty capacity and was earning as much as she had earned prior to the injury, because she was therefore not eligible to receive workers’ compensation disability benefits. To the contrary, our Supreme Court recently has recently reviewed the method of determining the 104 weeks of disability in the notice provision of § 31-349. Specifically, the court held the following:
(T)he rate of pay received by the claimant and the number of hours worked upon her return to work are not determinative of the time period of her disability under § 31-349(a). Rather, the determinative factor as to whether the time period is to be included in calculating the 104 week period of disability that triggers the date by which the employer must furnish notice to the fund, is whether the claimant is medically impaired as a result of his or her work-related injury.
Innocent v. St. Joseph’s Medical Center, 243 Conn. 513, 518 (1998).
In Innocent, supra, the court held that even though the claimant was not entitled to receive any disability benefits when she had returned to light duty work at full pay, nevertheless those weeks of light duty constituted periods of disability and thus were required to be included in the calculation of the 104 week period under § 31-349. Based upon the holding in Innocent, supra, we must reverse the trial commissioner’s decision in the instant case. See Six v. Thomas O’Connor & Co., 235 Conn. 790, 799 (1996) (the conclusions drawn by the trial commissioner from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.”). In the instant case, the trial commissioner specifically made a finding that if the weeks of the claimant’s light duty at the same rate of pay were included in the determination of the 104 weeks of disability as urged by the Fund, then the notice to transfer would be late. (Finding No. 20). As the holding in Innocent, supra, requires these weeks to be included, we must conclude that the notice was late.
The trial commissioner’s decision is reversed.
Commissioners James J. Metro and John A. Mastropietro concur.
1 We note that the notice provision of 31-349 was amended by P.A. 95-277, §3 and by P.A. 96-242, §1. BACK TO TEXT