State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Melillo v. Bayer Corporation

CASE NO. 5490 CRB-3-09-8



SEPTEMBER 15, 2010











The claimant was represented by Jeffrey S. Armas, Esq., Gillis Law Firm, One Century Tower, 265 Church Street, Suite 203, New Haven, CT 06510.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Suite 216, Glastonbury, CT 06033-4453.

This Petition for Review1 from the July 23, 2009 Finding and Dismissal of the Commissioner acting for the Third District was heard March 26, 2010 before a Compensation Review Board panel consisting of Commissioners Nancy E. Salerno and Amado J. Vargas and Christine L. Engel.


NANCY E. SALERNO, COMMISSIONER. The claimant in this matter has appealed from a Finding and Dismissal wherein the trial commissioner declined to award the claimant a statutory penalty under § 31-303 C.G.S. for an alleged late payment of a stipulated award by the respondents. The trial commissioner found that based on the stipulated facts, the payment was timely and no penalty would be assessed. We find this was a reasonable conclusion by the trial commissioner which was consistent with our precedent in Garcia v. Middletown Nissan, 5035 CRB-8-05-12 (December 20, 2006). We affirm the trial commissioner and dismiss this appeal.

The parties stipulated to the following facts. The claimant, Ralph Melillo, was employed by Bayer Corporation on or about June 21, 2004. On that day he suffered compensable injuries to his lumbar and cervical spine; the claim for these injuries was resolved by way of a full and final stipulation for $60,000 approved by the Commission on January 10, 2008. A check for the $60,000 stipulation was issued on January 30, 2008 by ACE USA and made payable to counsel for the claimant. It was mailed via first class mail on January 30, 2008 and was received by claimant’s counsel on February 4, 2008.

Based on this record, the claimant argued that the respondents failed to comply with § 31-303 C.G.S. and a statutory penalty should be levied. His argument was that the statute requires receipt of funds within the twenty day period following approval of the stipulation. He also noted that respondents’ failed to follow the protocols delineated in Chairman’s Memorandum 2007-02, wherein funds from stipulations must be received within twenty days. The respondents argued that the payment was made in accordance with the stipulation agreement the parties agreed to which had been approved by the Commission. The respondents also argued that payment to the claimant must commence within twenty days under the statute and that mailing the check within that period was sufficient to comply with § 31-303 C.G.S. Therefore, penalties should not be levied.

The trial commissioner reviewed the terms of the statute which requires awards under stipulations to “commence” within twenty days of the date of agreement. The trial commissioner also reviewed the Chairman’s Memorandum 2007-02 which calls for funds to be “received” within twenty days after approval of the agreement. Finally, the trial commissioner reviewed the actual terms of the agreement, which called for the funds to become “payable” within 20 days of approval of the stipulation.

The trial commissioner concluded that the parties chose to deviate from the terms of § 31-303 C.G.S. and the language of the Chairman’s Memorandum 2007-02. She applied the “plain language” of the stipulation and found the operative language in the agreement was when the award became “payable.” Applying the definition of “payable” from Black’s Law Dictionary the trial commissioner found the obligation was capable of being paid within twenty days of its approval by the Commission, and therefore the payment was “timely under the provisions agreed to by the parties and approved by the Workers’ Compensation Commissioner.” She therefore dismissed the claim for a statutory 20% penalty.

The claimant has appealed. He argues the trial commissioner erred in her ruling as the parties should not have been permitted to deviate from the payment requirements delineated in Chairman’s Memorandum 2007-02. He argues that the respondents did not “commence” payment within the time set forth in statute. At oral argument before this panel, counsel for the claimant argued that this case presented a “novel fact pattern” and to uphold the trial commissioner would cause “further havoc.”

Upon consideration of these arguments, we disagree. We find the facts herein substantially similar to those of the Garcia case and as we cannot distinguish the two cases, stare decisis compels us to uphold the trial commissioner. The parties in the present matter reached an agreement as to the terms of payment. They are now bound to the stated terms of the agreement.

In Garcia the trial commissioner declined to impose sanctions under § 31-303 when the parties agreed that the deadline for payment was triggered not by approval of the stipulation, but by the receipt of the stipulation by an insurer. This panel remanded the matter to ascertain the date of receipt, but made clear that when both parties decide not to follow the clear terms of the payment statute and obtain Commission approval to proceed in this fashion; we will not turn around after the fact and demand strict statutory compliance.

In this appeal, we must review the terms of the Agreement actually approved by the trial commissioner as to whether the respondents performed under the terms all parties and the Commission agreed to. We decline to adopt claimant’s reasoning that the Chairman’s protocol for stipulations in Memorandum 2000-11, dated October 30, 2000, should govern over the plain language of the Agreement. The parties all agreed to terms slightly different from this protocol and obtained approval of the trial commissioner to proceed in this manner; they are now estopped from renegotiating its terms after obtaining Commission approval. Garcia, supra.

The parties in the present matter agreed that the sum due from the respondents to the claimant would be “payable” within 20 days of the approval of the agreement. The trial commissioner in this matter then had to determine whether the issuance of a check on that date made the obligation “payable.” Our standard of review is deferential to the finder of fact. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Daniels v. Alander, 268 Conn. 320, 330 (2004).

We recently had the opportunity to discuss the definition of the term “payable” in Milewski v. Town of Stratford, 5483 CRB-4-09-7 (July 20, 2010). In Milewski we upheld the denial of statutory interest when the amount of the award due the claimant could not be ascertained from the four corners of the document evidencing the Voluntary Agreement. We cited Francis v. Rushford Centers, Inc., 5428 CRB-8-09-2 (February 8, 2010) as defining what a “payable” obligation was. In Francis we determined the claimant’s right to benefits under Arizona law for a prior injury was unperfected, and therefore, it was not “payable”, citing Black’s Law Dictionary (5th Edition). The trial commissioner in the present case utilized the same definition as applied in Francis.

Payable. Capable of being paid; suitable to be paid, admitting or demanding payment; justly due; legally enforceable. A sum of money is said to be payable when a person is under an obligation to pay it. Payable may therefore signify an obligation to pay at some future time, but when used without qualification, term normally means that the debt is payable at once, as opposed to “owing.” (Black’s Law Dictionary, 5th Edition)

In the present matter it is undisputed that the respondents had issued a check to the claimant within the time period required under the stipulation. The moment such a check was issued, presuming it was drawn on sufficient funds, it was a payable obligation which could have been cashed or deposited immediately upon receipt. The claimant’s argument is while the check was issued, he did not receive it until it was delivered by the Postal Service. We are unwilling to redraft this agreement to create a receipt deadline when the parties failed to include this term in the agreement itself. As we pointed out in Milewski “[i]n Ouellette [ v. New England Masonry Company, 5424 CRB-7-09-2 (January 14, 2010)] and Francis we upheld a determination by the trial commissioner that what constitutes a ‘payable’ obligation must be determined from the agreements that document the award or agreement.”

Notwithstanding the decision of the parties to deviate from the stipulation protocols under the 2007 Chairman’s Memorandum, the parties still were required to comply with state statute. We are persuaded that the issuance of a check within the twenty day time period under § 31-303 C.G.S. could reasonably be found to constitute the commencement of payment.2 We find the respondents’ citation of GMAC Mortgage Corp. v. Glenn, 103 Conn. App. 264, 269-271, (2007) to be on point; the word “commence” has been defined by the Appellate Court as a synonym for initiating an action, not completing it. The trial commissioner could reasonably have found issuing a check to the claimant caused the payment to “commence.”

Essentially, the conclusion of the trial commissioner herein is that when parties choose to deviate from strict adherence to the Chairman’s Memorandum, they cannot attempt to enforce its terms at a later date. We find no error, and affirm the decision of the trial commissioner. The appeal is dismissed.

Commissioners Amado J. Vargas and Christine L. Engel concur in this opinion.

1 We note that a postponement was granted during the pendency of this appeal. BACK TO TEXT

2 The terms of this statute are as follows:

Sec. 31-303. Day when compensation payments become due. Penalty for late payments. Payments agreed to under a voluntary agreement shall commence on or before the twentieth day from the date of agreement. Payments due under an award shall commence on or before the twentieth day from the date of such award. Payments due from the Second Injury Fund shall be payable on or before the twentieth 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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State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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