Czujak v. City of Bridgeport Benefits Dept.

The claimant was represented by George Springer, Jr., Esq., 99 West. Main Street, New Britain, CT 06051.

The respondent was represented by Frank May, Esq., Monstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

These Petitions for Review from the January 31, 1997 Finding and Award of the Commissioner acting for the Fourth District were heard January 9, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles

OPINION

JESSE M. FRANKL, CHAIRMAN. Both parties have petitioned for review from the January 31, 1997 Finding and Award of the Commissioner acting for the Fourth District. We begin by addressing the claimant’s appeal and the respondent’s Motion to Dismiss that appeal. As noted, the trial commissioner issued her Finding and Award on Friday, January 31, 1997. The claimant filed his petition for review on Thursday, February 13, 1997 with the Fourth District office. The respondent moved to dismiss that petition for review on the ground that it was filed outside the ten-day appeal period of § 31-301(a) C.G.S. After the trial commissioner granted the claimant a Motion for Extension of Time to file a Motion to Correct,1 the claimant filed his requested corrections on April 4, 1997. Those were denied by the commissioner that same day, and the claimant filed a petition for review from that decision on April 14, 1997.

It is well-established that an appealing party must file its petition for review within the time period prescribed by § 31-301(a) in order for this board to have jurisdiction to consider the appeal. Freeman v. Hull Dye & Print, Inc., 39 Conn. App. 717, 720 (1995); Kulig v. Crown Supermarket, 3335 CRB-6-96-5 (decided Nov. 25, 1997). It is also well-established that the appeal period begins running on the date notice of the decision is sent to the parties—in this case, January 31, 1997. Freeman, supra; Conaci v. Hartford Hospital, 36 Conn. App. 298, 303 (1994). The tenth day following that date was Monday, February 10, 1997. Any appeals received after that date cannot be considered by this board. As the claimant’s petition for review was filed on February 13, 1997, we must dismiss that appeal as untimely. The claimant’s subsequent filing of a Motion to Correct and a petition for review from the denial of that motion did not act to cure the late appeal or extend the appeal period in any way. Harris v. Hartford Hospital, 16 Conn. Workers’ Comp. Rev. Op. 187, 188, 3292 CRB-1-96-3 (May 16, 1997); Imbrogno v. Stamford Hospital, 5 Conn. Workers’ Comp. Rev. Op. 99, 100, 610 CRD-8-87 (June 9, 1988). Thus, the claimant’s petitions for review are dismissed.

We now turn to the respondent’s appeal, in which it contends that the trial commissioner erred by ordering it to include outside overtime earnings in the calculation of the claimant’s § 7-433b(b) cap, and by awarding the claimant interest and attorney’s fees on the ground that the respondent unreasonably contested this case. The trier found that the claimant suffered a myocardial infarction on October 16, 1981 that placed him in a coma for 18 days and caused considerable brain damage. At that time, he was a regular member of the paid municipal police department of the city of Bridgeport, which entitled him to § 7-433c benefits.2 The claimant, who has been totally disabled ever since that injury, was entitled to the maximum compensation rate of $310.00 per week for his injury, subject to the § 7-433b(b) cap.3 His claim was accepted by Finding and Award on November 27, 1984; he had already retired from the police department on April 10, 1984.

After the award was approved, the claimant signed an accounting summary that specified a base compensation rate of $310 per week, with a $157.27 differential between the claimant’s retirement pension and full pay. He received weekly total disability payments of $157.27 from April 11, 1984 to July 1995, at which time they increased to $282.27. In 1990, our Supreme Court decided that the term “weekly compensation” in § 7-433b(b) includes all forms of weekly remuneration, including overtime as well as base salary. Szudora v. Fairfield, 214 Conn. 552, 558-59 (1990). Several years later, the claimant sought to adjust the cap on his benefits to account for the inclusion of inside and outside overtime payments made to Bridgeport patrolmen. No one attempted to modify the 1984 Finding and Award before the fall of 1994, however.

After considering the testimony of the parties’ witnesses, the trial commissioner concluded that the overtime calculations made by Kathleen Testani, a witness for the respondent, were the best estimates available as to the amounts potentially owed the claimant. Although the commissioner declined to apply the Szudora ruling retroactively to 1984, she ordered that inside and outside overtime be included in the claimant’s § 7-433b(b) cap as of the April 1990 date of the Szudora decision, “and that a differential for those benefits unpaid through December 1995 and continuing, with appropriate cost of living adjustments, is due and owing.” Finding and Award, ¶ N(1). She also awarded the claimant an attorney’s fee equal to twenty percent of the amounts owed, plus 6% interest per annum for all outstanding amounts “for [the respondent’s] undue delay in payment of the outside overtime adjustments.” Finding and Award, ¶ E. The commissioner specifically relied on the opinion of this board in Marone v. Waterbury, 3117 CRB-5-95-7 (decided Jan. 10, 1997), in making her decision regarding the application of Szudora to the claimant’s § 7-433b(b) cap.

Our Supreme Court recently issued its own decision in the Marone case. Marone v. Waterbury, 244 Conn. 1 (1998). Although the CRB decision was technically affirmed, a majority of the Court held that § 31-315 C.G.S. does not authorize the modification of an award based on a mistake of law as opposed to a mistake of fact once a final judgment has been rendered in a workers’ compensation case. Id., 12-18, citing Kalinick v. Collins Co., 116 Conn. 1 (1932). The Court not only affirmed this board’s ruling that the Szudora decision can only be applied retroactively to pending cases; it also said that an award cannot be reopened under § 31-315 for the purpose of modifying the compensation rate prospectively. Marone, supra, 8, 16. Thus, a trial commissioner’s decision to adjust the § 7-433b(b) benefit cap as of the date of the Szudora decision or the date of the formal hearing would not be allowable in a case that had reached final judgment before the date of the Szudora decision.

In the instant case, there is no question that the claimant’s award was final in 1984. Neither party attempted to appeal or correct that ruling during the relevant periods after its issue. See § 31-301(a), Admin. Reg. § 31-301-4. Under Marone, the trial commissioner therefore had no authority to retroactively order the adjustment of the § 7-433b(b) cap based on the change in the interpretation of the law that was effected in 1990 when Szudora was issued. Consequently, the commissioner’s order that the claimant’s pay cap be adjusted to include inside and outside overtime for the period April 1990 forward must be reversed. It follows that the claimant’s award of attorney’s fees and interest for the respondent’s undue delay in the payment of those overtime adjustments must also be reversed. A remand will be necessary to determine the amount of compensation paid to the claimant without prejudice on account of the inside overtime claim, and any credit due against future benefits. See Finding and Award, ¶ 30(G).

We observe, however, that the portion of the commissioner’s award ordering the payment of cost of living adjustments under § 31-307a was not appealed by the respondents. It is unclear whether the claimant received any COLAs at all after 1984; the commissioner’s finding that the claimant received the same total disability payment of $157.27 from April 11, 1984 through July 1995 suggests that the claimant’s compensation rate was never adjusted to reflect cost-of-living increases. See Finding and Award, ¶ 15. Unlike the amount of the claimant’s § 7-433b(b) cap, the COLAs due the claimant were not set at the time of the initial award, and the claimant’s entitlement to COLAs is not subject to the “pending claim” analysis pertinent to the Szudora retroactive application issue. Pursuant to § 31-307a(a), the claimant became entitled to COLAs every year on the first of October, depending on the increase in the maximum weekly compensation rate under § 31-309 from the date of his injury to the year in question, without any order or award from the commissioner. COLAs apply equally to Chapter 568 and § 7-433c benefits. McNulty v. Stamford, 12 Conn. Workers’ Comp. Rev. Op. 32, 39, 1332 CRD-7-91-10 (Jan. 26, 1994), rev’d on other grounds, 37 Conn. App. 835 (1995) (Second Injury Fund not liable to repay municipal employer for cost of living adjustments); see also Felia v. Westport, 214 Conn. 181, 187 (1990). If the claimant was not paid any COLAs during the life of his award, he would be due those sums under the law. See Gil v. Courthouse One, 239 Conn. 676 (1997).

The trial commissioner’s decision is reversed. The case is remanded to the Fourth District for a hearing to determine the amount of benefits paid by the respondent without prejudice for inside overtime, and the amount of cost-of-living adjustments due the claimant, if any.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

1 The trial commissioner initially denied that motion on February 24, 1997. The claimant then filed a motion requesting the trier to reconsider that ruling, which was also denied on March 11, 1997. The claimant petitioned for review from that ruling on March 20, 1997, but the trier vacated her denial of the earlier rulings and granted the extension of time on March 24, 1997. Thus, the second petition for review was rendered moot. BACK TO TEXT

2 Section 7-433c provided qualifying regular members of paid police departments who died or became disabled from injuries related to hypertension or heart disease “compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment,” as well as “the same retirement or survivor benefits which would be paid under [the applicable municipal or state retirement system] if such death or disability was caused by a personal injury which arose out of and in the scope of employment, and was suffered in the line of duty and within the scope of his employment.” BACK TO TEXT

3 The relevant portion of § 7-433b(b) states that “the cumulative payments, not including payments for medical care, for compensation and retirement or survivors benefits under section 7-433c shall be adjusted so that the total of such cumulative payments received by such member or his dependents or survivors shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his death or retirement.” BACK TO TEXT