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Krevis v. City of Bridgeport

CASE NO. 3857 CRB-04-98-07



AUGUST 18, 1999









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

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

This Petition for Review from the July 2, 1998 Finding and Award of the Commissioner acting for the Fourth District was heard February 26, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.


JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the July 2, 1998 Finding and Award of the Commissioner acting for the Fourth District. He argues on appeal that the trier erred with respect to several issues concerning the merits of this case, as well as in denying his request for an extension of time to file a Motion to Correct. We affirm the trial commissioner’s decision.

The claimant has an accepted § 7-433c heart and hypertension claim with a February 10, 1984 date of injury. He ceased working for the respondent city of Bridgeport in 1987, and formally retired on September 1, 1988, whereupon he began receiving a disability pension entitling him to a monthly payment based on two-thirds of his salary. Pursuant to a permanent partial disability award, he also began receiving $219.03 in weekly compensation through May 21, 1991. The claimant contends that he became entitled to temporary total disability benefits on that date, which entitlement allegedly continued through the date of the formal hearings. Alternatively, he claimed entitlement to § 31-308a benefits commencing as of the expiration of his permanency award. The respondent filed a Form 36 on March 14, 1995, seeking discontinuation of the claimant’s benefits. A commissioner approved its request shortly after. In addition to the resumption of his weekly benefits, the claimant also seeks reimbursement for the cost of his Micronase prescription from June 15, 1994 through December 4, 1997.

With respect to the claimant’s compensation rate, the parties had stipulated in 1989 that his permanency payments were subject to a base pay cap of $219.03 per week, which was calculated pursuant to § 7-433b(b) by subtracting the claimant’s pension from his base pay and then limiting his compensation benefits to the difference. Findings, ¶ 17. Subsequently, our Supreme Court decided in Szudora v. Fairfield, 214 Conn. 552 (1990), that the § 7-433b(b) cap must incorporate all forms of weekly remuneration, including overtime earnings as well as base salary. The claimant argued that he should receive a retroactive adjustment to his compensation rate on account of the Szudora decision, and states that he made at least two demands for such an adjustment prior to March 10, 1995, which were ignored by the respondent.

The trial commissioner disagreed. He found that the claimant’s request for a cap adjustment was controlled by Szudora, supra; Marone v. Waterbury, 244 Conn. 1 (1998); and Czujak v. Bridgeport, 3535 CRB-4-97-2 (June 10, 1998)1, which collectively hold that a claimant’s benefit rate cannot be modified—either retroactively or prospectively—based upon a subsequent change in the law unless the compensation rate issue was still pending at the time of said change. The trier also held that the claimant had not established by a preponderance of the evidence that he is, or was, totally disabled beyond May 22, 1991, and instead characterized the payments made by the respondent through March 14, 1995 as discretionary § 31-308a benefits. No further benefits were awarded. As for the claimant’s Micronase prescription, the trier ruled that it was diabetes medication unrelated to the claimant’s heart and hypertension claim, and thus declined to order the respondent to reimburse the claimant for the cost of that medication. The claimant assigns each of these determinations as error on appeal.

The claimant filed his petition for review from the commissioner’s July 2, 1998 award on July 13, 1998 (which was timely under § 31-301(a), as July 12th was a Sunday; Noga v. Colin Service Systems, Inc., 3361 CRB-6-96-6 (Sept. 16, 1997)). Pursuant to Admin. Reg. § 31-301-4, the claimant/appellant also had two weeks from the date of the award to seek corrections to the findings, “unless the time [was] extended for cause by the commissioner.” The claimant filed a Motion for Extension of Time to File Motion to Correct on July 10, 1998 with the trial commissioner, stating that counsel needed “additional time to review and assemble the relevant portions of the transcript and exhibits thereto.” The trier denied that request on July 13, 1998. The claimant also lists in his Reasons for Appeal the trier’s alleged abuse of discretion in denying this motion.

Administrative Regulation § 31-301-4 (which is codified as part of the set of regulations entitled “CRB Appeal Procedure”) does not require a trial commissioner to allow a party additional time to file a Motion to Correct upon the mere assertion of an excuse for delay. Rather, it implies that the commissioner must use his discretion to determine whether the party seeking an extension of time has demonstrated that a good reason exists for waiving the time limit provided by the regulation. This is consistent with P.B. § 66-1(b), which states, “If an appeal has been filed, the time provided for taking any step necessary to prosecute or defend the appeal may be extended by the court in which the appeal is pending.” (Emphasis added.) Like Admin. Reg. § 31-301-4, subsection (c)(2) of P.B. 66-1 provides that motions for extension of time to complete any step necessary to prosecute an appeal “will not be granted except for good cause.”

Here, the claimant contended that his counsel needed more time to peruse the transcript and exhibits before a Motion to Correct could be prepared. The trier of fact presumably disagreed. Based on the claimant’s 37 proposed findings, we deduce that the transcripts and the exhibits were available to him prior to the issuance of the trier’s decision. See Claimant’s Proposed Findings, Conclusions and Award, March 5, 1998. It is also apparent that counsel had reviewed these documents in preparing his proposal. The claimant’s assertion that he needed more time to file his Motion to Correct was not bolstered by specific examples of items that could not be obtained or reviewed in the allotted filing period. He merely stated that he needed additional time to review the transcript and the exhibits, without getting into further detail.

On appeal, it remains unclear exactly how the claimant was unfairly prejudiced by the trier’s denial of his request for an extension. We are aware that the record in this case contains 28 marked exhibits, and over 400 pages of transcribed testimony. Though large, this file is not so unusually enormous and complex that a thorough evaluation of the trier’s findings could not reasonably be completed within the standard two-week filing period. The trier certainly had the discretion to determine that the claimant’s counsel was familiar enough with the file to prepare a Motion to Correct within the time limit prescribed by Admin. Reg. § 31-301-4. Also, the claimant has not demonstrated any concrete prejudice from the denial of this motion, other than the ultimate absence of the Motion to Correct itself. We thus cannot say on appeal that the denial of the claimant’s motion for extension of time was error. Accordingly, as the appellant did not file a Motion to Correct, we are limited to the trier’s factual findings on review. Seltenreich v. Stone & Webster Engineering Corp., 15 Conn. Workers’ Comp. Rev. Op. 135, 136-37, 2196 CRB-3-94-10 (Jan. 17, 1996).

Regarding the merits of his appeal, the first issue raised by the claimant in his brief is the trial commissioner’s finding that the claimant was not entitled to reimbursement for his Micronase prescription. The claimant argues that all of the relevant evidence in this case indicated that the drug was being prescribed as a treatment for the claimant’s heart condition. The claimant, of course, had the burden of proving the existence of a causal link between his accepted § 7-433c hypertension claim and his current medical condition, including his need for Micronase. See, e.g., O’Reilly v. General Dynamics Corp., 52 Conn. App. 813 (1999) (claimant bears burden of proving causal relationship with reasonable degree of medical probability). The commissioner, as the trier of fact, was charged with evaluating the credibility of the evidence that the claimant offered to that end. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997).

The commissioner found, with little supporting discussion, that the claimant’s diabetes medication was unrelated to his § 7-433c claim. As noted above, the claimant did not seek correction of this finding. Legally, the trier of fact was within his authority to disregard any medical testimony offered by the claimant in support of his position, even if apparently uncontradicted. Jusiewicz, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). However, as the respondent points out, two doctors testified that the claimant’s hypertension was unrelated to his diabetes, which implies that it was also unrelated to his need for the drug Micronase. See Claimant’s Exhibit E, p. 14; Claimant’s Exhibit D, p. 21-22. This directly supports the trier’s conclusion in ¶ E of his Findings, and precludes any possibility of our reversing the trier’s decision on that matter.

The claimant also argues in his brief that the respondent should be estopped from contesting the claimant’s allegation of total disability because of a premium waiver it obtained from the claimant’s life insurance carrier. Apparently, upon the retirement of the claimant in 1988, the respondent sought and received a waiver of the claimant’s life insurance premiums from the carrier on the ground that the claimant was totally disabled within the meaning of the insurance contract. The trial commissioner dismissed that claim on the ground that such evidence does not establish that the claimant was also totally disabled pursuant to Chapter 568. Findings, ¶ F. The claimant argues in his brief that the trier applied the wrong test, as the issue was not the varying standards of disability, but the equitable argument that the respondent should be estopped from adopting a legal position inconsistent with its representation to the life insurer.

First, we disagree with the claimant’s contention that his estoppel argument is unaffected by the difference in the two standards of “total disability.” It was not patently unreasonable for the respondent to argue that the claimant was totally disabled under the contract but not under the Workers’ Compensation Act, as the legal standard for total disability under the Act is more stringent than “inability . . . to work at any job suited to [one’s] education, training or experience.” See Claimant’s Exhibit F. “Total incapacity” under the Act requires that a claimant be unable to perform any work at all, including “light duty” work in a completely different occupation. See § 31-308(a). Second, the cases cited by the claimant do not apply the estoppel concept as broadly as the argument in his brief suggests. Indeed, State v. Anonymous (1973-9), 30 Conn. Sup. 302 (1973), would appear to support the result reached by the trier, as there is no evidence that the claimant somehow detrimentally relied on the respondent’s contention to the life insurer that he was totally disabled, and there is no evidence that the respondent took an inconsistent position on a factual matter in which it had actual knowledge of the relevant facts. Id., 303-304. We thus find no merit in the estoppel argument.

Finally, we address the claimant’s assertion that the trier erred by denying his claim for adjustment of the § 7-433b(b) cap on heart and hypertension benefits. As stated above, Marone, supra, and Czujak, supra, together hold that a trial commissioner is not authorized to modify that benefit cap in cases that had reached final judgment before the date of our Supreme Court’s decision in Szudora, supra. There is no question that the claimant’s compensation rate under § 7-433b(b) was settled in 1989, and that the claimant did not try to appeal or correct the manner in which the cap was applied. Indeed, the claimant’s attorney was the one who calculated the compensation rate without taking into account inside and outside overtime payments. April 9, 1997 Transcript, p. 115. At that time, § 7-433b(b) was generally understood to implicate only an officer’s base pay in the calculation of the cap. Even though the August 23, 1989 Finding and Award does not specifically delineate the nature of the “lawful limitations” that circumscribed the benefits available under § 7-433c, it is evident that the parties had reached a “meeting of the minds” as to the meaning of that phrase at the time of the award.

Also, the claimant’s assertion that the respondent later agreed to make the adjustment in response to his post-Szudora demand is not supported by any objective proof. The mere fact that he made this demand (as stated by ¶ 21 of the Finding and Award) does not somehow absolve him from the effect of the “final judgment” rule. We continue to abide by the interpretation of Marone, supra, that we advanced in Czujak, supra. The trial commissioner correctly ruled that he was without authority to retroactively or prospectively adjust the claimant’s § 7-433b(b) cap.

The trial commissioner’s decision is hereby affirmed in all respects.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 The Czujak decision is currently pending before the Appellate Court. A.C. 18534. BACK TO TEXT

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