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CASE NO. 3728 CRB-04-97-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
FEBRUARY 18, 1999
STOP AND SHOP COMPANIES
The claimant was represented by Ian Cole, Esq., Cohen & Thomas, 315 Main Street, P. O. Box 313, Derby, CT 06418.
The respondent was represented by Robert S. Bystrowski, Esq., Morrison, Mahoney & Miller, 100 Pearl Street, Hartford, CT 06103.
This Petition for Review from the November 12, 1997 Finding and Award of the Commissioner acting for the Fourth District was heard October 23, 1998 before a Compensation Review Board panel consisting of Commissioners Donald H. Doyle, Jr., Michael S. Miles and Stephen B. Delaney.
DONALD H. DOYLE, JR., COMMISSIONER. The claimant and the respondent have each petitioned for review from the November 12, 1997 Finding and Award of the Commissioner acting for the Fourth District. The claimant contends that the trier erred in allowing the respondent a credit for temporary partial disability benefits paid, while the respondent argues that the trier erred by characterizing the respondent’s payments as § 31-308(a) benefits rather than § 31-308(b) advances, and that the trier erred by awarding the claimant interest and an attorney’s fee for undue delay. After careful review, we explain and affirm the trial commissioner’s decision.
The claimant was employed by Stop and Shop on July 14, 1992, when he sustained a compensable injury to his low back. A voluntary agreement was approved on December 16, 1992 for the injury. The claimant had returned to work without restrictions by February 18, 1993, after a period of treatment and work hardening. The claimant alleged that he reinjured his back on May 8, 1993. The trier found that Dr. Mastroianni placed him on a permanent lifting restriction of 15 pounds, and told him that he should undergo further work hardening and train for lighter work. He returned to Stop and Shop with new work capabilities, but was told that Stop and Shop had no suitable work for him to do. He did not seek other employment.
Instead, the claimant borrowed money from his parents and joined the YMCA, using their facilities to perform work hardening exercises on his own. He applied for short term disability benefits through Stop and Shop on May 25, 1993, but was rejected. The respondent then began to pay the claimant temporary total disability benefits, recording those benefits as “TTD” payments on the weekly $513.17 checks. The claimant received such payments for 12 5/7 weeks. After the claimant convinced Stop and Shop and Dr. Mastroianni that he could return to his old job, he resumed his regular duty on September 23, 1993. A few days later, on September 27, a commissioner approved a voluntary agreement specifying a 10% permanent partial disability of the back with a maximum medical improvement date of April 11, 1993.
Under the voluntary agreement, the claimant was entitled to 52 weeks of specific indemnity benefits. The respondent issued a check for $6,530.04, purportedly in “full settlement of 24 of 52 weeks of permanent partial disability.” The claimant returned that check to the respondent, and requested that the respondent reissue the check for $11,784.00, which was the full amount of the 24 weeks of benefits already due. The respondent, however, claims that it is entitled to a $6,931.46 credit for temporary total disability benefits paid to the claimant from May through September of 1993.
The trier found that the claimant was not entitled to § 31-308(b) benefits [presumably, she meant § 31-307(b) total disability benefits] from the date of the reinjury through September 22, 1993 because the claimant had light duty capability, and did not seek employment within his restrictions. She found, however, that the claimant “was most probably temporarily partially disabled before reaching maximum medical improvement from the reoccurrence of May 9, 1993,” despite the absence of any claim to that effect. She also found that the respondent failed to issue a Form 36 during the disputed period to discontinue or recharacterize benefits paid.
The trier decreed that “the respondent is entitled to take credit for the above payments from June 28, 1993 [through] September 24, 1993 as payment of § 31-308(a) benefits.” She then awarded the claimant $11,740.00 in permanent partial disability benefits for the disputed 24-week period, and further awarded the claimant 12% interest on the portion of that amount ($5,253.96) that she deemed overdue based on the respondent’s tender of the balance in the October 5, 1993 check it issued in the amount of $6,530.04. She also ordered the respondent to pay the claimant a reasonable attorney’s fee based on its undue delay in resolving this claim. Both parties filed Motions to Correct this Finding and Award, which were denied. Both parties then appealed the trial commissioner’s decision.
The legal conclusions of a trial commissioner must not be reversed on appeal unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Hanson v. Transportation General, 245 Conn. 613, 636 (1998). At first glance, and even second glance, there appear to be discrepancies between the trier’s findings and her conclusions that would compel us to reverse this decision. Vasilescu v. Consolidated Freightways, 16 Conn. Workers’ Comp. Rev. Op. 53, 55-56, 2225 CRB-7-94-12 (Oct. 18, 1996). However, a close examination of this decision reveals that the trier reached a reasonable outcome.
To begin, we note an undisputed error by the trier. She failed to correct upon the respondent’s request her finding in ¶ A that the claimant was not entitled to benefits under § 31-308(b), the permanent partial disability provision. It is clear from the context of the rest of that finding that the trier was referring to § 31-307 total disability benefits instead of § 31-308(b). In fact, she explicitly found that the claimant was entitled to a 10% permanent partial disability award in ¶ B of her conclusions. Such an inadvertent error will not affect our review of the substance of the trial commissioner’s findings.
After deciding in ¶ A that the claimant had not been totally disabled, the trier concluded that he had “most probably [been] partially disabled” from May 9, 1993 through the date of his maximum medical improvement. Findings, ¶ B. Neither party alleged temporary partial disability during the proceedings, though the medical evidence could support such a finding. Usually, the difference between total and partial disability is significant both in fact and in law. Yet, it happens to be irrelevant for the purpose of determining the benefits due the claimant in this case. Corrections that have no impact on the outcome of a case are immaterial, and a commissioner’s denial of those corrections does not require interference with her decision. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995).
The trier correctly found that the respondent did not file a Form 36 seeking to discontinue payment of total disability benefits until September 20, 1993. Claimant’s Exhibit E. A respondent who is paying either temporary total or temporary partial disability benefits must file a Form 36 before discontinuing or reducing payment in most cases. Torres v. Southern Connecticut Truck & Tire Center, 3144 CRB-3-95-8 (Feb. 5, 1997); § 31-296. Where the respondent seeks to retroactively characterize such benefits as permanent partial disability benefits because maximum medical improvement was reached at some time in the past, the earliest date on which benefits can effectively terminate is the filing date of the Form 36. Crowe v. DBD, Inc., 14 Conn. Workers’ Comp. Rev. Op. 283, 285, 1941 CRB-7-93 12 (Sept. 11, 1995). Whether defined as total disability or partial disability benefits, the sums paid to the claimant before September 20, 1993 cannot be applied as advances against permanency, because the respondent had not filed a Form 36. Thus, the claimant need not account for those payments against his back impairment award, whether they be for total or partial disability.
Despite the trier’s observation in ¶ C of her findings that no Form 36 was issued during the disputed period, her very next sentence initially appears to award the respondent a credit for those payments against specific indemnity benefits. We agree that her choice of the word “credit” was misleading given the issues in this case. A careful study of the award’s structure and content, though, reveals a consistent, reasonable reading of the commissioner’s conclusions—one that shows she was not attempting to award the respondent an offset against permanency. See Six v. Thomas O’Connor & Co., 235 Conn. 790, 801 (1996) (reviewing body must interpret findings with the goal of sustaining the trier’s conclusions in light of the supporting evidence).
Immediately after observing that the respondent did not file a Form 36, the trier stated that the respondent “is entitled to take credit for the above payments from June 28, 1993 [to] September 24, 1993 as payment of § 31-308(a) benefits.” By this, we believe that she was simply stating that those benefits were to be construed as paid temporary partial disability benefits. Nothing more. The word “credit”1 does not necessarily imply an offset in that context. This is borne out in the very next sentence, ¶ B, where the trier awarded the claimant the full $11,740 in permanent partial disability benefits, with 12% interest from October 5, 1993 on the $5,253.96 portion of the award that was not timely tendered via the respondent’s check for $6,530.04. No offset is mentioned, nor is an implied offset compatible with ¶ B, as the respondent would have owed less than $6,530.04 in total if there had been an offset due against the $11,740 for benefits already paid. See Respondent’s Brief, p. 7. This interpretation of the decision also brings into focus the claimant’s award in ¶ C of attorney’s fees for undue delay, which at its roots conflicts with the notion that the respondent correctly pressed its entitlement to a credit.
If one looks at the parties’ motions to correct, one can understand how such an ambiguity could remain in the ruling. The claimant’s correction merely asks the trier to delete ¶ A, or to amend it to state that the respondent “is not entitled to take credit” for the payments in question. On its own, this language may not have suggested to the commissioner that the parties were reading her award as mandating a credit, i.e., offset, against permanency benefits. It is even more telling that one of the respondent’s corrections requested the trier to replace ¶¶ A-C with new conclusions, including language stating that the claimant was not totally disabled after the maximum medical improvement date, and that the “respondent is entitled to take credit for the above-payments from June 28, 1993, through September 24, 1993, as payment of 31-308(b) benefits.” That correction was denied. Presumably, the trial commissioner did not intend that the respondent’s § 31-308(a) benefits, as she deemed them, be deducted from his permanency award under § 31-308(b).
The commissioner ’s award is admittedly susceptible to a reading that leaves one a bit bewildered. However, having taken the time to parse through the misleading language, we have discovered that her decision makes sense under Chapter 568. As such, we reiterate the trier’s holding: the claimant is entitled to the full amount of the $11,740 award for the first 24 weeks of his permanency, with $5,253.96 of that payable with interest. He is also due attorney’s fees under § 31-300.
The trial commissioner’s decision is affirmed. Insofar as benefits have not been paid pending appeal, the respondent is liable for additional interest under § 31-301c.
Commissioners Michael S. Miles and Stephen B. Delaney concur.
1 The word “credit” has many definitions, according to the American Heritage Dictionary. When used as a noun, as in ¶ A, it may mean “the deduction of a payment made by a debtor from an amount due.” It may also mean, “official certification or recognition for work done,” or “approval for an act, ability, or quality; praise.” BACK TO TEXT
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