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CASE NO. 4508 CRB-8-02-3
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 12, 2003
CITY OF MIDDLETOWN
MATHOG AND MONIELLO
The claimant was represented by Laurie Moran, Esq., McHugh Law Offices, 140 Washington Street, Middletown, CT 06457.
Respondents were represented by James T. Baldwin, Esq., Coles, Baldwin & Craft, LLC, 1261 Post Road, P.O. Box 577, Fairfield, CT 06824.
This Petition for Review from the March 8, 2002 Finding and Dismissal of the Commissioner acting for the Eighth District was heard October 18, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Howard H. Belkin.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the March 8, 2002 Finding and Dismissal of the Commissioner acting for the Eighth District. In that Finding and Dismissal the trial commissioner dismissed the claimant’s claim for the late payment of benefits for a 35% permanent partial disability to his left leg.
The pertinent facts are as follows. The claimant sustained a compensable injury to his left knee on September 1, 1994 while in the employ of the respondent municipality. The claimant retired from his municipal employment effective January 8, 2000 under a special agreement. The claimant began receiving his pension checks in the amount of $370 per week. The amount of the pension checks reflected federal tax obligations.
In March 2000 the claimant received a permanent partial disability rating from his treating physician. On May 10, 2000 the claimant was examined by an independent medical examiner. Both physicians concluded that the claimant had a 35% permanent partial disability to his left leg. A Voluntary Agreement reflecting the 35% permanent partial disability was executed and approved July 19, 2000. The VA reflected that the claimant’s date of maximum medical improvement was March 6, 2000. Sometime thereafter, the respondent began the administrative process of converting the claimant’s pension payments to Workers’ Compensation benefits. From that date the claimant continued to receive his weekly pension check. The amount to which the claimant was entitled to pursuant to the approved Workers’ Compensation Voluntary Agreement was $377.02 per week. On November 8, 2000, the claimant asked to have the balance of his permanent partial disability benefits paid in a lump sum. The request was approved by the Eighth District Commissioner and on November 19, 2000 the respondent paid the claimant $6,880.62. That sum reflects the remaining balance of the permanent partial disability owed to the claimant and if payment continued in its usual weekly course, payments would have been made through mid-March 2001.
The claimant contends that the respondent owes permanent partial disability payments from March 6, 2000 to November 18, 2000 because during that period he only received his pension check. The claimant also asked the trial commissioner to award penalties pursuant to § 31-300 and § 31-303 as the payment of his permanent partial disability benefits were delayed. In proceedings before the trial commissioner the respondent contended that the claimant was paid his permanent partial disability benefits for the period between March 6, 2000 and November 18, 2000. The claimant contends that the respondent’s crediting of his pension checks as permanent partial disability payments is irrelevant and not permitted by city ordinance.
The trial commissioner concluded that the claimant was paid continuously from March, 6, 2000 through the date of the VA approval. The trier found after the VA was approved the respondent initiated the administrative process of adjusting the claimant’s benefits. The trier also found the claimant’s 2000 income tax return reflected the adjustments in the characterization of payments made between March 6, 2000 through December 2000 as permanent partial disability payments. Thus, the trier concluded that the claimant was paid permanent partial disability benefits for the period from March 2000 through November 2000 and dismissed his claim and the respondent made a good faith effort in its adjustment of payments made to the claimant. The trier also concluded that the respondent did not act in bad faith or with undue delay in adjusting those payments.
The claimant filed the instant appeal and presents the following issue, whether the trial commissioner erred in concluding as a matter of law that the respondent acted in good faith in paying claimant’s permanent partial disability benefits when it paid those benefits as pension benefits and retroactively changed characterization of the payments as Workers’ Compensation benefits. The claimant argues respondent is liable for late payment penalties pursuant to § 31-295 and § 31-303.
The claimant argues that pursuant to City of Middletown municipal ordinance § 20-49 the respondent was not permitted to pay the claimant permanent partial disability benefits at the same time as pension benefits. The claimant contends that as the respondent denoted the payments as pension payments and failed to correct the characterization of the payments until some four months later, it violated the timely payment requirements set out in the Workers’ Compensation Act. The claimant refers to the statutory provisions in § 31-2951 and § 31-3032 governing the time period by which permanent partial disability benefits and payments pursuant to a Voluntary Agreement, respectively, are to be paid.
In support of its argument on appeal, the claimant cites this tribunal’s opinion in Sbona v. Middletown, 3449 CRB-8-96-10 (April 23, 1998), aff’d, 55 Conn. App. 906 (1999)(per curiam). However, we think the claimant’s reliance on Sbona is misplaced. In Sbona a patrol officer for this same municipality sustained a compensable injury to his neck and back. A VA was approved providing the claimant was to be paid 34.75 weeks of permanent partial disability rating benefits. The date of maximum medical improvement was May 12, 1994. The claimant retired on a disability pension effective October 21, 1994. The respondent paid the claimant permanent partial disability benefits for the period of May 12, 1994 through October 21, 1994. These payments reflected 23.29 weeks of the 34.75 permanent partial disability benefits due. In November 1994, a lump sum commutation of the permanent partial disability benefits was approved by the commissioner.
The respondent in Sbona refused to pay the claimant’s permanent partial disability benefits on the basis that those benefits should be offset by the pension benefits pursuant to municipal ordinance Chapter 20 § 20-49. The trial commissioner in Sbona held that the respondent could not offset the claimant’s workers’ compensation benefits against the claimant’s retirement benefits. The Compensation Review Board held “whether a municipal employee’s pension plan may be reduced due to receipt of workers’ compensation benefits is an issue for a superior court to determine”. Id. (citations omitted). Sbona is factually distinguishable as the respondent refused to pay the claimant the permanent partial benefits. In the instant matter the claimant was paid the permanent partial benefits commuted into a lump sum. Unlike Sbona, in this instance the respondent did not fail to comply with the payment of the commuted amount. Furthermore, payments continued to the claimant between the date of the approval of the Voluntary Agreement and the lump sum commutation. The characterization of those payments as something other than workers’ compensation payments is really of no moment to this commission. The only ramifications of a mischaracterization of the payments we can readily envision are the possible income tax consequences. Here, the trier found that the claimant’s 2000 federal income tax reflected the change in the character of the payments made to the claimant between March and November 2000.
This is not a case where an actual dollar payment due the claimant went unpaid. In the instant matter the respondent is self-insured and the characterization of whether a payment is for a disability retirement or the consequence of an amount due under our workers’ compensation law, may not be patently obvious. But the focus of our attention in such matters rests on whether the claimant was receiving actual dollar payments. In the instant matter there was no disruption in remuneration to the claimant. /p>
We therefore affirm the Commissioner acting for the Eighth District’s Finding and Dismissal.
Commissioners Donald H. Doyle, Jr., and Howard H. Belkin concur.
1 Sec. 31-295 (c) provides in pertinent part:
If the employee is entitled to receive compensation for permanent disability to an injured member in accordance with the provisions of subsection (b) of section 31-308, the compensation shall be paid to him beginning not later than thirty days following the date of the maximum improvement of the member or members and, if the compensation payments are not so paid, the employer shall, in addition to the compensation rate, pay interest at the rate of ten per cent per annum on such sum or sums from the date of maximum improvement. The employer shall ascertain at least monthly whether employees are entitled to compensation because of a loss of wages as a result of the injury and, if there is a loss of wages, shall pay the compensation. The chairman of the Workers’ Compensation Commission shall adopt regulations, in accordance with the provisions of chapter 54, for the purpose of assuring prompt payment by the employer or his insurance carrier. BACK TO TEXT
2 Sec. 31-303 provides in pertinent part:
Payments agreed to under a voluntary agreement shall commence on or before the tenth day from the date of agreement. Payments due under an award shall commence on or before the tenth day from the date of such award. Payments due from the Second Injury Fund shall be payable on or before the tenth business day after receipt of a fully executed agreement. Any employer who fails to pay within the prescribed time limitations of this section shall pay a penalty for each late payment, in the amount of twenty per cent of such payment, in addition to any other interest or penalty imposed pursuant to the provisions of this chapter. BACK TO TEXT
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