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CASE NO. 5365 CRB-8-08-8
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 4, 2009
FRANCIS J. CHURCHVILLE, JR.
BRUCE R. DALY MECHANICAL CONTRACTOR
RISK ENTERPRISE MANAGEMENT
The claimant was represented by Stephen F. McEleney, Esq., McEleney & McGrail, 20 Church Street, Suite 1730, Hartford, CT 06103.
The respondents were represented by Maribeth McGloin, Esq., Maher & Williams, P.O. Box 550, Fairfield, CT 06824.
This Petition for Review from the July 15, 2008 Finding and Award/Dismissal of the Commissioner acting for the First District was heard February 27, 2009 before a Compensation Review Board panel consisting of Commissioners Randy L. Cohen, Nancy E. Salerno, and David W. Schoolcraft.
RANDY L. COHEN, COMMISSIONER. The claimant and the respondents have petitioned for review from the July 15, 2008 Finding and Award/Dismissal of the Commissioner acting for the First District. We affirm the decision of the trial commissioner in part and remand in part for additional proceedings consistent with this opinion.
The following factual determinations are pertinent to our review. The trial commissioner found that the claimant, while in the employ of Bruce R. Daly Mechanical Contractor, sustained a compensable injury to his right shoulder on December 2, 1997 and a compensable injury to his lumbar spine on March 27, 2000. The record indicates that the claimant also filed a claim for a repetitive trauma injury to his left shoulder on March 27, 2000; in January 2003, Myron Shafer, M.D., performed a Commissioner’s Examination on the claimant’s left shoulder and opined that the claimant’s injury probably did result from repetitive use rather than the claimant’s use of a cane or crutch. However, Dr. Shafer did not link the claimant’s problems in his left shoulder to the claimant’s employment with the respondent employer. Claimant’s Exhibit X.
On January 7, 2004, the claimant’s treating physician, Charles B. Kime, M.D., issued a report in which he opined that the claimant suffered from “failed lumbar spine surgery syndrome.” Claimant’s Exhibit E. Dr. Kime also indicated that the claimant was totally disabled, had reached maximum medical improvement, and had sustained a thirtytwo percent (32%) permanent partial disability of his lumbar spine. On January 7, 2005, Dr. Kime reviewed the results of the claimant’s Functional Capacity Evaluation and remarked that the claimant “may be capable of some sedentary activity.” Respondents’ Exhibit 1. However, Dr. Kime also indicated that the claimant “does not appear to be capable of any significant vocational activity.” Id.
On May 27, 2004, Christopher J. Lena, M.D., evaluated the claimant’s left shoulder and issued a report in which the doctor opined that the claimant had reached maximum medical improvement and sustained a fifteen percent (15%) permanent partial disability. Claimant’s Exhibit G. On June 12, 2006, Michael Aron, M.D., evaluated the claimant’s right shoulder and assigned a ten percent (10%) permanent partial disability rating. Claimant’s Exhibit F.
On May 4, 2007, the respondents filed a Form 36 asserting the claimant had reached maximum medical improvement and attaching in support of their contention a report by Aris D. Yannopoulos dated April 20, 2007 which assigned to the claimant a permanency rating of twenty percent (20%) of the lumbar spine and concluded the claimant had a work capacity such that he “could perform work which requires intermittent sitting and standing.”1 Claimant’s Exhibit A. On May 7, 2007, the claimant filed correspondence with the Workers’ Compensation Commission objecting to the Form 36. On May 29, 2007, at an informal hearing held to address the claimant’s timely objection to the Form 36, the presiding trial commissioner ordered a commissioner’s examination with Jarob Mushaweh, M.D., “in an effort to determine whether the Claimant had a work capacity, the extent of any permanent partial disability, and whether or not the left shoulder was compensable.” Findings, ¶ 12. In his report dated October 26, 2007, Dr. Mushaweh stated that he concurred with Dr. Kime’s diagnosis that the claimant suffered from failed back syndrome. Claimant’s Exhibit B. Dr. Mushaweh also indicated that the claimant did not require additional treatment to his lumbar spine, and opined that while the claimant may have sustained a repetitive trauma injury to his left shoulder, the injury was not related to the claimant’s lumbar spine injury. Dr. Mushaweh did not comment as to whether in his opinion the claimant had a work capacity.
On November 28, 2007, the claimant provided to the respondents a settlement proposal which analyzed the value of the case under two scenarios. The first scenario was based on the claimant’s continuing entitlement to total disability benefits, while the second was based on the claimant’s entitlement to permanent partial disability benefits and § 31-308a C.G.S. benefits. Claimant’s Exhibit K. At an informal hearing held on January 23, 2008, the presiding trial commissioner denied the Form 36 which had been filed on May 4, 2007.2 Claimant’s Exhibit D. On February 28, 2008, the claimant died of causes unrelated to his work injuries, and on March 4, 2008, claimant’s counsel indicated by letter that he no longer had any objection to the Form 36 being granted effective January 23, 2008. Claimant’s Exhibit J. On the same date, respondents’ counsel objected to the claimant’s attempt to reopen the Form 36. Respondents’ Exhibit 4. On March 27, 2008, a formal hearing was held which served as a trial de novo on the issue of the Form 36 and also addressed the issue of whether any permanent partial disability benefits should be paid to the claimant’s estate.
The trial commissioner concluded that the claimant had sustained a ten percent (10%) permanent partial disability to his right shoulder and a thirty-two percent (32%) permanent partial disability to his lumbar spine. However, the trial commissioner found the record did not contain sufficient evidence to support finding that the claimant had also sustained a compensable left shoulder injury, and dismissed that claim. The trial commissioner characterized claimant’s counsel’s settlement demand of November 28, 2007 as an “affirmative request” for permanent partial disability benefits and concluded, “[g]iven that the Claimant made an affirmative demand for payment of permanent partial disability benefits after having reached maximum medical improvement, such benefits were vested on the Claimant’s date of death.” Findings, ¶¶ F, J. The trier, having determined that as of May 4, 2007, the claimant had a sedentary work capacity and had attained maximum medical improvement relative to his injuries to the lumbar spine and right shoulder, retroactively approved the Form 36 and ordered that all payments to the claimant made by the respondents subsequent to May 4, 2007 be credited against the award of permanent partial disability benefits.
The claimant and the respondents filed Motions to Correct, both of which were denied in their entirety, and this appeal/cross-appeal followed. The respondents contend the trial commissioner committed reversible error in concluding that the claimant’s right to collect a permanent partial disability award had vested prior to his death, asserting that “[t]he inclusion of benefits in a settlement demand, including potential future benefits, is not an affirmative request for payment to commence of those benefits.” Respondents/Appellees’ Memorandum of Law in Support of Petition for Review, p. 6.3 The respondents further argue that claimant’s counsel’s correspondence of March 4, 2008, prepared after the claimant’s death, actually constituted the first affirmative request for the commencement of payment of permanent partial disability benefits, and contend that “if a request for payment of the permanency prior to his death was made, there would not have been a need for such a letter.” Id., at 7. As such, the trial commissioner, who “may have allowed sympathy to sway his opinion rather than following the dictates of caselaw and the evidence before him,” id., at 8, erred in awarding to the claimant’s estate the permanent partial disability benefits.
The respondents also assert that the trial commissioner erred in concluding that the claimant sustained a thirty-two percent (32%) permanent partial disability rating, as found by Dr. Kime, rather than the twenty percent (20%) found by Dr. Yannopoulos, and contend that the trial commissioner must have “failed to take this evidence into account in making his decision.” Id., at 9.
On cross-appeal, the claimant does not dispute the trial commissioner’s findings with regard to the claimant’s eligibility for permanent partial disability benefits but does argue that the trier erred in awarding the benefits to the claimant’s estate rather than his surviving spouse. Claimant’s counsel points out that the trial commissioner was not only introduced to the claimant’s widow at the formal hearing but offered his condolences, and the death certificate identifying Margery E. Churchville as the claimant’s wife was admitted into evidence. See Claimant’s Exhibit I. The claimant also contends that the trial commissioner should have taken administrative notice of the Form 30C4 and the Form 1A5 in the file in support of the contention that Margery Churchville was the spouse of the claimant and therefore eligible, pursuant to § 31-308(d) C.G.S., to receive the permanent partial disability award upon the death of the claimant.6 In the alternative, the claimant argues that Mrs. Churchville would also be eligible to receive the award in light of her status as a presumptive dependent.7
We begin our analysis with a recitation of the well-settled standard of deference this board is obliged to apply to a trial commissioner’s findings and legal conclusions.
the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).
McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).
In the instant matter, the respondents contend the trial commissioner erroneously determined that the settlement demand proffered by the claimant constituted an “affirmative demand” for the commencement of payments of permanent partial disability, consistent with McCurdy v. State, 227 Conn. 261 (1993), such that the claimant’s estate then became entitled to the permanent partial disability awards for the injuries to his right shoulder and lumbar spine. In McCurdy, the claimant, who remained totally disabled until his death, had made a request at a hearing for payment of his permanent partial disability benefits, which request was denied by the trial commissioner because the claimant remained totally disabled. Prior to the claimant’s death, his treating physician found the claimant had attained maximum medical improvement and assigned a seventy (70%) percent permanent disability of his low back. The trial commissioner refused to incorporate these proposed findings into his decision, and the McCurdy court found error, citing Osterlund v. State, 129 Conn. 591 (1943) for the proposition that “[a] person may reach maximum medical improvement, have a permanent partial impairment, and be temporarily totally disabled from working, all at the same time.” (Emphasis in the original) McCurdy, supra, at 267-268.
The McCurdy court went on to observe that “[w]e have long held that an injured worker has a right to a permanent partial disability award once he or she reaches maximum medical improvement,” id., at 268, but also noted that in Osterlund, the court had overruled several prior decisions “to the extent that they precluded a commissioner from exercising his or her discretion to continue total disability payments to a worker who had reached maximum medical improvement but was still totally disabled from working.”8 Id. The McCurdy court found that because the claimant had “reached maximum medical improvement and his permanent partial disability has thereby vested, we hold that the commissioner does not have discretion to deny such award if the worker requests that award, as the decedent did in this case.” (Emphasis added) Id., at 269. The court then “conclude[d] that the decedent became entitled to a permanent partial award on December 15, 1987, when he requested such an award at the hearing before the commissioner.” Id.
We note at the outset that the McCurdy court clearly states that a permanent partial disability award vests when the claimant attains maximum medical improvement. We therefore disagree with the respondents’ assertion that such awards do not vest until the claimant affirmatively requests payment of the permanent partial disability benefits. In fact, a contextual reading of the relevant passages in McCurdy does not lead us to conclude that the McCurdy court intended to impose any sort of procedural obstacle on claimants seeking a conversion from temporary total benefits to permanent partial disability payments but, rather, sought to constrain the trial commissioner’s exercise of discretion once a claimant elects to receive permanent partial disability payments rather than total disability benefits. Our review of the decision indicates that the McCurdy court deliberately chose to continue to rely upon the following proposition articulated in Osterlund.
In the case of a partial loss of function of one of the members specified in the statute, the commissioner is called upon, when the stage of maximum improvement has been reached, to exercise his sound judgment in deciding whether to award specific compensation upon the basis fixed in the statute or to permit the weekly compensation for incapacity to continue. (Emphasis added.)
Id., at 600.
It is of course well-settled that the election of either temporary total or permanent partial disability benefits by either the claimant or the trial commissioner is required. Given that § 31-308(b) C.G.S. states that permanent partial disability benefits shall be paid “in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation,” (emphasis added), our Supreme Court, in Cappellino v. Cheshire, 226 Conn. 569 (1993), held that the Workers’ Compensation Act
prohibits concurrent payments of benefits for permanent partial disability and temporary disability; it is clear that these two types of benefits compensate an employee for different types of loss; and that the payment of § 31-307 temporary total disability benefits does not discharge the obligation to pay § 31-308 permanent partial disability benefits at some point in the future. (Emphasis in the original; internal citations omitted)
Id., at 577-578.
The foregoing discussion notwithstanding, however, we are not convinced that the precepts set forth in McCurdy and its progeny are applicable to the case at bar. The record before us indicates that prior to the claimant’s death; Drs. Kime, Lena and Yannopoulos all opined the claimant had reached maximum medical improvement, although they assigned different dates and permanency ratings. In addition, Dr. Yannopoulos concluded the claimant was capable of employment which “requires intermittent sitting and standing.”9 The record also indicates that on May 4, 2007, the respondents filed a Form 36 on the basis of Dr. Yannopoulos’ report, and in an attempt to resolve the continuing litigation regarding the claimant’s status, the trial commissioner at an informal hearing on May 29, 2007, ordered a Commissioner’s Examination with Jarob Mushaweh, M.D., “to determine whether the Claimant had a work capacity, the extent of any permanent partial disability, and whether or not the left shoulder was compensable.” Findings, ¶ 12. The claimant saw Dr. Mushaweh on October 27, 2007, and the doctor reported that he concurred with the diagnosis of failed back syndrome and opined that no additional treatment was indicated, although he did not comment as to the claimant’s work capacity. Thereafter, the Form 36 was denied at an informal hearing held on January 23, 2008.
A formal hearing de novo was held on March 27, 2008 before the commissioner who rendered the instant decision that is the subject of this appeal. While it is undeniable that the claimant passed away in February of 2008 prior to resolution of the litigation surrounding the issuance of the Form 36, it also cannot be disputed that the litigation was underway well before the claimant’s passing, and it is the determination of this board that the trial commissioner’s ultimate factual findings and conclusions find ample support in the medical reports contained in the file: to wit, the April 20, 2007 medical report of Dr. Yannopoulos, which found that the claimant had reached maximum medical improvement and had a work capacity, along with January 7, 2004 report of Dr. Kime, the May 27, 2004 report of Dr. Lena, and, arguably, the October 27, 2007 report of Dr. Mushaweh, all of which indicated the claimant had reached maximum medical improvement. We therefore decline to find that it was an abuse of the trial commissioner’s discretion to initially attempt to clarify the work capacity of the claimant via a Commissioner’s Examination while he was still alive and then to find the claimant eligible for the permanent partial disability award following the claimant’s death. Rather, we hold that the trial commissioner was well within his rights because the medical reports mentioned herein supported finding the claimant had reached maximum medical improvement and had a work capacity as of the date the Form 36 was filed. Quite simply, we do not consider the death of the claimant on February 28, 2008 germane to the determination of whether the Form 36 was appropriate when filed on May 4, 2007.10
We have reviewed the cases cited by the respondents in support of their contentions, and conclude that none of the cases are particularly persuasive or even factually on point. In Squitieri v. Mariano Cardillo & Sons, 3084 CRB-7-95-6 (January 6, 1997), we reversed the trial commissioner’s award of permanent partial disability benefits on the basis that the request for the benefits was made prior to the claimant’s attaining maximum medical improvement. Similarly, in Burr v. Hoffman Water Treatment Co., 14 Conn. Workers’ Comp. Rev. Op. 180, 2125 CRB-8-94-8 (June 29, 1995), we reversed the trial commissioner’s award of permanent partial disability benefits because the claimant’s request occurred more than ten months before the claimant reached maximum medical improvement. In Versage v. Volk, 11 Conn. Workers’ Comp. Rev. Op. 253, 1313 CRD-3-91-10 (November 17, 1993), dismissed for lack of final judgment, A.C. 13072 (February 16, 1994), we noted that a demand for payment of permanent partial disability benefits must occur after a claimant has reached maximum medical improvement and dismissed the trier’s award of interest commencing on a date prior to the claimant’s timely request for benefits. Finally, in Bacote v. Anaconda American Brass, 1 Conn. Workers’ Comp. Rev. Op. 42, 18 CRD-5-80 (June 12, 1981), we upheld the trier’s decision to dismiss the claimant’s request for permanent partial disability benefits on the basis that “it appears that the claimant’s decedent never sought an award for Specific Compensation at or near the time that the treating physician indicated maximum improvement.” Id., at 43.
We now turn our analysis to the respondents’ assertion that the trial commissioner erred by disregarding Dr. Yannopoulos’ opinion that the claimant had suffered a twenty percent (20%) permanent partial disability to his lumbar spine. We find no evidence that the trial commissioner committed reversible error by adopting the permanency rating of thirty-two percent (32%) assigned by Dr. Kime. Our review of the file indicates that in Findings, ¶ 9, of the Finding and Award/Dismissal of July 15, 2008, the trial commissioner specifically referenced Dr. Yannopoulos’ report of April 20, 2007 which had been attached to the respondents’ Form 36. See Claimant’s Exhibit A. Having acknowledged the report’s existence, the trial commissioner was not then under any obligation to accept Dr. Yannopoulos’ opinion or remark upon its persuasiveness. “It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony. The trier may accept or reject, in whole or in part, the testimony of an expert.” (Internal citations omitted) Tartaglino v. Department of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). The fact that the trial commissioner made specific reference to Dr. Yannopoulos’ report in his findings provides us more than sufficient reassurance that the report was not somehow accidentally overlooked.
Having affirmed the trier’s decision to find the claimant eligible for the contested permanency partial disability benefits, we now examine the claimant’s cross-appeal relative to the trial commissioner’s decision not to award benefits to the claimant in her capacity as the dependent spouse. In order to be among the class of surviving spouses who are accorded primary payment status pursuant to § 31-308(d) the claimant must persuade the trial commissioner that she is a member of that class. As to that proof, claimant’s counsel provided the trial commissioner with a death certificate identifying the claimant as the wife of the decedent. Claimant’s Exhibit I. In the prosecution of this appeal, claimant’s counsel also argued that the trial commissioner should have taken administrative notice of Form 30C and the Form 1A in the file, both of which allegedly supported his contention that Margery E. Churchville was the spouse of the claimant. In essence, the claimant contends that the trial commissioner should have accorded the death certificate greater weight and credibility as to the issue of the decedent’s marital status at the time of death.
As an appellate body, we are naturally reluctant to disturb the conclusions of the trial commissioner when they result from the weight and credibility accorded to the evidence. However, our review indicates that the Finding and Award/Dismissal in this matter is silent relative to the issue of whether Margery Churchville was either the claimant’s surviving spouse or a presumptive dependent, from which we may infer the trial commissioner did not make a determination either way. Instead, the trial commissioner merely determined that the permanency benefits should be awarded to the claimant’s estate. Findings, ¶ K. This finding is not supported by the language of § 31-308(d) C.G.S., which contains no such provision. Rather, the statute indicates that such awards, if not received directly by the claimant, are to go first to the surviving spouse, then to the claimant’s dependents in equal shares, and then to the claimant’s children, in equal shares, regardless of their ages. See footnote 5, supra. Given that we cannot ascertain from the record before us the party or parties who are entitled to receive the permanency award pursuant to the express direction of the statute, we hereby remand this matter to the trial commissioner and instruct that he make additional findings relative to who, pursuant to § 31-308(d) C.G.S., is eligible to receive the balance of the permanent partial disability benefits. Such a remand is consistent with the principle expressed by our Supreme Court in Cormican v. McMahon, 102 Conn. 234 (1925).
Cases under the Workmen’s Compensation Act are upon a different basis from actions between ordinary litigants. No case under this act should be finally determined when the trial court, or this court, is of the opinion that, through inadvertence, or otherwise, the facts have not been sufficiently found to render a just judgment.
Id., at 238.
Finally, we affirm Findings, ¶ H, of the Finding and Award/Dismissal of July 15, 2008 insofar as it allows the respondents to take a credit against the permanency award for any temporary total payments made to the claimant subsequent to May 4, 2007. While a claimant may choose to defer the commencement of payment of permanent partial disability benefits, we note that pursuant to the instructions contained in footnote nine of McCurdy, supra, respondents are entitled to a take credit against the award for total disability benefits paid to the claimant following the date on which the claimant is determined to be entitled to the permanent partial disability until the claimant is either no longer totally disabled or dies.11 See also Hall v. Gilbert & Bennett Mfg. Co., 12 Conn. Workers’ Comp. Rev. Op. 146, 1449 CRB-7-92-7 (April 7, 1994), order to dismiss granted, A.C. 13523 (June 29, 1994), cert. denied, 231 Conn. 903 (1994). We therefore affirm the trial commissioner’s finding that the respondents are entitled to a credit for temporary total payments made to the claimant after May 4, 2007.
We therefore hereby affirm in part and remand in part the July 15, 2008 Finding and Award/Dismissal of the trial commissioner acting for the First District.
Commissioner Nancy E. Salerno concurs.
DAVID W. SCHOOLCRAFT, COMMISSIONER, DISSENTING. I concur with the majority’s opinion that the trial commissioner’s decision to grant the Form 36 ought to be affirmed. I also concur with the majority’s opinion on the credit that is to be given for the total disability paid since the filing of the Form 36, and the decision to affirm the trial commissioner regarding the extent of impairment.
As for the majority’s decision to remand for additional findings as to who may claim the residual permanent partial disability under § 31-308(d) C.G.S., I disagree with the scope of the remand, for the following reasons.
While I agree that the case needs to be returned to the trial commissioner for additional findings as to whether there are dependents or children who might have a claim to the remaining permanent partial disability, I believe the matter has been settled as to whether Margery Churchville has proved her status as widow. To the extent that the majority suggests that Margery Churchville may re-lititgate her claim to be the surviving spouse of Francis Churchville, I respectfully dissent.
As the majority notes elsewhere in its opinion, this board is reluctant to disturb the conclusions of a trial commissioner when they result from the weight and credibility accorded to the evidence. In the instant matter, the trial commissioner not only failed to find the claimant was the spouse of the decedent in his July 15, 2008 Finding and Award/Dismissal but, when presented with the claimant’s Motion to Correct, again refused to find the claimant was the presumptive spouse of the decedent. The trial commissioner’s failure to find in accordance with the request of the claimant on not one, but two, occasions (i.e., the July 15, 2008 Finding and Award and his ruling on the claimant’s Motion to Correct), substantiates an inference that the claimant failed to carry the burden of proof on this issue. Put more succinctly, the trial commissioner exercised his right to accept all, part or none of the evidence put forth by the claimant. See e.g., Cuadrado v. Stop & Shop Companies, Inc., 5360 CRB-7-08-7 (July 2, 2009).
We do not know why the claimant did not put into evidence a copy of her marriage certificate. We are not privy to the trial strategy that led to the decision not to put Margery Churchville on the witness stand, but we must assume there was some logic behind this. In any event, the result is that the only piece of evidence in the record that arguably addresses her status was the death certificate, and nothing in that document would compel a different result.
It is well established that, while certain business records may be routinely admitted at a trial, the hearsay contained therein is only admissible if it falls into one of the recognized hearsay exceptions. River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787 (1991). While Connecticut General Statutes Sec. 31-298 makes it clear the trial commissioner is not strictly bound by the rules of evidence, it in no way compels a trial commissioner to accept any and all hearsay evidence. This is particularly true when the out of court statements have no inherent indicia of reliability, as is the case with the death certificate.
Ignoring the fact that the death certificate does not actually state that Margery Churchville was the widow, the “informant” for this information was listed as Margery E. Churchville. As such, the statement in the document is, at best, double hearsay.
Furthermore, the definition of a “spouse” is open to interpretation, depending on the context. In order to be a dependent spouse for purposes of our workers’ compensation act, one must be legally married. A common law marriage, for example, while it might be legitimate for some purposes, in some states, would not qualify Margery Churchville to claim anything in this case because Connecticut does not recognize common law marriage. Collier v. Milford, 206 Conn. 242, 247-48 (1988). In short, someone grieving the loss of a life partner might deeply believe she has lost a spouse, without that heartfelt conviction making it legally so for purposes of our workers’ compensation act.
It should also be noted that, had the commissioner taken administrative notice of the Form 30C and the Form 1A, there still would be no reason to expect a different result. The Form 30C was filed in 1998 and makes no mention of Margery Churchville. The Form 1A, filed at the same time, lists her as “wife.” For the same reasons the commissioner was not obligated to accept the hearsay allegations in the death certificate, he was not obligated to accept the 1998 allegation that Margery Churchville was the wife of the decedent.
It was the claimant’s burden to prove the necessary facts that would entitle her to claim the surviving permanent partial disability benefits. Neither introducing Margery Churchville to the commissioner as “widow,” nor acceptance of the commissioner’s condolences, is a valid substitute for evidence. Therefore, while I agree that the case should be remanded to determine if there are any dependents, I do not believe Margery Churchville is entitled to a second trial on the question of her status as surviving spouse.
1 A Form 36, which is a “Notice to Compensation Commissioner and Employee of Intention to Discontinue or Reduce Payments,” is generally filed in accordance with § 31-296 C.G.S., which governs written (“voluntary”) agreements. Sec. 31-296 C.G.S. (Rev. to 1999) states, “[b]efore discontinuing or reducing payment on account of total or partial incapacity under any such agreement, the employer, if it is claimed by or on behalf of the injured person that his incapacity still continues, shall notify the commissioner and the employee, by certified mail, of the proposed discontinuance or reduction of such payments, with the date of such proposed discontinuance or reduction and the reason therefor [sic], and, such discontinuance or reduction shall not become effective unless specifically approved in writing by the commissioner. The employee may request a hearing on any such proposed discontinuance or reduction within ten days of receipt of such notice.” A Form 36 can also be filed pursuant to § 31-296a, which governs oral agreements. BACK TO TEXT
2 We note that different trial commissioners presided over the hearings held on May 29, 2007 and January 23, 2008. BACK TO TEXT
3 On January 6, 2009, the respondents filed correspondence with this board indicating they would not be filing an Appellee Brief relative to the claimant’s appeal, choosing instead to leave the claimant to his proof on the issues raised. BACK TO TEXT
4 A claimant generally files a Form 30C, or “Notice of Claim for Compensation”, to initiate a workers’ compensation claim. BACK TO TEXT
5 A claimant must also file a Form 1A, or “Filing Status and Exemption” form, which documents the claimant’s filing status for income tax purposes. BACK TO TEXT
6 Section 31-308(d) C.G.S. (Rev. to 1999) states: [a]ny award or agreement for compensation made pursuant to this section shall be paid to the employee, or in the event of the employee’s death, whether or not a formal award has been made prior to the death, to his surviving spouse or, if he has no surviving spouse, to his dependents in equal shares or, if he has no surviving spouse or dependents, to his children, in equal shares, regardless of their age. BACK TO TEXT
7 Section 31-275 (19) C.G.S. (Rev. to 1999) states, in pertinent part: “‘Presumptive dependents’” means the following persons who are conclusively presumed to be wholly dependent for support upon a deceased employee: (A) A wife upon a husband with whom she lives at the time of his injury or from whom she receives support regularly…. BACK TO TEXT
8 The decisions overruled by the Osterlund court were Panico v. Sperry Engineering Co., 113 Conn. 707 (1931) and Stapf v. Savin, 125 Conn. 563 (1939). BACK TO TEXT
9 In this regard, we find the case at bar can be distinguished from Sullo v. State/Judicial Branch, 4796 CRB-1-04-3, 4831 CRB-1-04-7, 4978 CRB-1-05-7 (September 8, 2006), in which the evidentiary record did not support a finding that the claimant had a work capacity. BACK TO TEXT
10 Relative to the respondents’ contention that the claimant was required, consistent with the respondents’ interpretation of McCurdy, to make an affirmative request for his permanent partial disability benefits prior to death, we note that claimant’s counsel provided a settlement letter in November 2007 prior to the death of his client in which the claimant specifically sought permanent partial disability benefits in lieu of temporary total benefits should he be found no longer disabled. See Claimant’s Exhibit K. While we do not find within the McCurdy opinion any discussion of what would constitute an adequate “affirmative request”, and are unwilling to construe the opinion beyond the parameters defined by the McCurdy court, we do note that the trial commissioner made the determination that this settlement demand letter did in fact constitute an adequate affirmative request and the permanency was therefore vested on the claimant’s date of death. Findings, ¶ F, J. BACK TO TEXT
11 Footnote nine in McCurdy v. State, 227 Conn. 261 (1993), states, “[b]ecause the decedent became entitled to an award on December 15, 1987, only temporary total disability payments that were made to him between that date and the date of his death can be deducted from a permanent partial disability award.” BACK TO TEXT
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