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Kluttz v. Estate of Glenn Howard d/b/a South Distributors

CASE NO. 3738 CRB-04-97-12



FEBRUARY 18, 1999













The claimant was represented by Robert M. Fitzgerald, Esq., Fitzgerald & Prucker, 1127 Tolland Turnpike, Suite 101, Manchester, CT 06040.

The respondent Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

These Petitions for Review from the November 26, 1997 Finding and Award of the Commissioner acting for the Fourth District were heard August 21, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Stephen B. Delaney.


JESSE M. FRANKL, CHAIRMAN. Both the claimant and the Second Injury Fund have petitioned for review from the November 26, 1997 Finding and Award of the Commissioner acting for the Fourth District. The claimant argues that the trier entered an erroneous date of maximum medical improvement, while the Fund argues that the trier erroneously named the estate of a deceased individual as a party to her order. We affirm the trial commissioner’s decision.

The trial commissioner found that, pursuant to a 1991 Finding and Award, the claimant suffered a compensable injury over which this Commission had jurisdiction. That award was affirmed by this board in Kluttz v. Howard, 10 Conn. Workers’ Comp. Rev. Op. 195, 1188 CRD-4-91-3 (Nov. 5, 1992), and then by our Supreme Court in Kluttz, supra, 228 Conn. 401 (1994). The claimant now asserts a permanent partial impairment to his right leg. The trier found that, in accordance with a June 26, 1996 medical report by Dr. Morrison, the claimant was entitled to a 20% permanent partial impairment award of the right leg, with a June 26, 1996 date of maximum medical improvement. She also awarded the claimant interest at 12% per annum from the date of maximum medical improvement due to the respondent’s unreasonable delay in processing this case and in paying the claimant’s 1994 awards for scarring and temporary total disability benefits.

The Fund became involved in the case under § 31-355 C.G.S., as the respondent employer did not have workers’ compensation insurance coverage in the State of Connecticut. The employer, Glenn Howard, died on May 11, 1992 in Monksville, North Carolina. The claimant represented that his estate was being administered by Sally Smith, a Monksville attorney. The Fund argued that the death of the employer made him a legal nullity, and that the claimant needed to demonstrate that he had jurisdiction over the administrator of the deceased employer’s estate in order to maintain his claim. The trier did not accept this argument, as she ordered an award entered against the estate of Glenn Howard, which if not paid within ten days, would necessitate an award against the Fund under § 31-355. Both parties appealed from the trier’s decision.

First, we address the claimant’s appeal. The trier found that Dr. Slate estimated a 20% permanency to the claimant’s right leg on September 17, 1986. Neither the employer nor the Fund offered evidence to contradict any of the claimant’s medical reports. The claimant argues that, as he had completed treatment for his injury in 1985 or 1986, the trier should have found September 17, 1986 to be the date of maximum medical improvement, and not June 26, 1996, the date of Dr. Morrison’s report.

A review of the four medical reports in the record shows that the only one that unequivocally states that the claimant’s condition no longer requires treatment is Dr. Morrison’s June 26, 1996 report. Claimant’s Exhibit C. Dr. Slate’s 1986 report gives an estimate of permanent partial disability, and refers to the “possibility of future trouble.” Claimant’s Exhibit A. As the trial commissioner was charged with determining the credibility of these medical reports, on review we cannot override her decision to credit Dr. Morrison’s report as establishing maximum medical improvement. Ultimately, the issue is a factual one, and the trier made a reasonable decision. Hodgdon v. UTC/Pratt & Whitney, 16 Conn. Workers’ Comp. Rev. Op. 164, 167-68, 3150 CRB-1-95-8 (May 2, 1997); Dextraze v. Lydall, Inc., 14 Conn. Workers’ Comp. Rev. Op. 52, 54, 1615 CRB-2-92-12 (May 10, 1995). The maximum medical improvement date must stand as found.

The Fund argues on its appeal that the commissioner improperly entered an award against the Estate of Glenn Howard. According to the Fund, “[o]nce a person dies, he or she becomes a legal nullity. Pending resolution and disposition of the property, the property is possessed by the administrator or executor of the estate. The estate of any deceased person is, thus, ‘not a proper party to any action. . . “ Morganelli v. Derby, 105 Conn. 545, 547 (1927).” Brief, p. 2. In the absence of proof that the claimant has established jurisdiction over the administrator of the decedent’s estate pursuant to North Carolina law, the Fund contends that this Commission currently lacks jurisdiction to enter an award against the employer, and by extension, the Fund due to the lack of a valid underlying award against the employer.

The cases relied on by the Fund do not support such a result. Park v. Choi, 46 Conn. App. 596 (1997), stands for the proposition that this board cannot interpret an out-of-state insurance policy that explicitly excludes extraterritorial coverage as allowing Connecticut to assert jurisdiction over an out-of-state insurer. Ross v. Swift, 15 Conn. Workers’ Comp. Rev. Op. 210, 2292 CRB-6-95-2 (April 23, 1996), required the trier to determine whether the claimant’s claim for workers’ compensation benefits against the employer was discharged in bankruptcy because federal law would have rendered null and void a Commissioner’s judgment of personal liability with respect to a discharged debt, irrespective of jurisdictional issues. Id., 212-13. Also, the employer there had filed a Motion to Submit as Additional Evidence documents from the bankruptcy court purporting to discharge the claim, and this board reasoned that reopening the case was the most prudent result. Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438 (1997) affirmed the trial commissioner’s right to determine whether a claim for which reimbursement was sought from the Connecticut Insurance Guaranty Association was a “covered claim” under § 38a-838(6) C.G.S., as CIGA was explicitly referenced in § 31-355(e), and public policy favored this result. “If the commission is to function effectively in the manner contemplated by the legislature, it must be able to interpret other acts when necessary in order to resolve cases originating under the Workers’ Compensation Act. Any other result would be inconsistent with the [Act’s] remedial public policy . . . .” Id., 447.

This case noticeably contrasts with each of those matters. Jurisdiction was established over the employer before his death, as the initial award was entered in 1991. The remedial purpose of the Act would hardly be served by holding that, in the event of an employer’s demise, the substitution of an estate or its administrator/executor as a respondent is not an automatic process, and that this claimant is not entitled to further relief until he can prove that such substitution has been made in accordance with a sister state’s law. We do not seek out ways to surprise claimants by informing them that, due to the personal circumstances of their former employers, their accepted workers’ compensation claims are suddenly unenforceable. No evidence has been presented to this board that would, on its face, plainly divest this board of jurisdiction as in Park, or prevent the claimant from enforcing his award as in Ross.

This case is more comparable to Matey v. Dember, 5 Conn. Workers’ Comp. Rev. Op. 104, 516 CRD-5-86 (June 14, 1988), appeal dismissed, 210 Conn. 626 (1989), in which the provisions of the Act indicated that the claimant had satisfied § 31-294’s notice requirements, but the Fund sought to establish that under a probate statute, § 45-205(b), the claimant was required to present her claim against the estate at an earlier date. This board held that it would not make any pronouncement regarding whether a workers’ compensation claim may be a right of action accruing “after the time limited for the presentation of claims.” Id., 105-106. For workers’ compensation purposes, the claim had been timely filed. This board did not look beyond its own statutory requirements in Matey to determine if the commissioner had jurisdiction to enter an award, and we will not do so here.

The trial commissioner’s decision is hereby affirmed.

Commissioners Michael S. Miles and Stephen B. Delaney concur.

Workers’ Compensation Commission

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State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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