McLain v. City of New London/Board of Education

The respondents were represented by Jennifer A. Hock, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review from the July 9, 2010 Finding and Dismissal of the Commissioner acting for the Eighth District was heard December 17, 2010 before a Compensation Review Board panel consisting of Commissioners Nancy E. Salerno and Jack R. Goldberg and Stephen B. Delaney.

OPINION

NANCY E. SALERNO, COMMISSIONER. The claimant in this matter has appealed from the decision of the trial commissioner concluding he is not entitled at this time to benefits under § 31-284b C.G.S. We find the trial commissioner appropriately applied the law. Therefore, we affirm the trial commissioner’s decision and dismiss this appeal.

The commissioner reached his decision after a formal hearing wherein the parties stipulated to the facts. The claimant was an employee of the respondent New London Board of Education and filed a workers’ compensation claim for various injuries. A decision on the claim was reached on November 24, 2009 by Commissioner Walker. Commissioner Walker determined at that time the claimant had already received all the indemnity and permanency payments he was entitled to for his injuries.

Based on these facts the trial commissioner determined that the claimant was not entitled to any permanency or indemnity benefits at that point in time. The commissioner determined that the terms of the statute required the continuance of insurance coverage only when such benefits were being paid. The commissioner found the cases of Kelly v. Bridgeport, 61 Conn. App. 9 (2000) and Auger v. Stratford, 64 Conn. App. 75 (2001) on point and compelled the dismissal of a claim for § 31-284b C.G.S. benefits.

The claimant filed a Motion for Articulation and later a Motion for Reconsideration. The trial commissioner did not act on these motions and pursuant to Spatafore v. Yale University, 2011 CRB-3-94-4 (September 14, 1995), aff’d, 239 Conn. 408 (1996) we may consider these motions denied. The respondents filed a Motion to Correct which was also denied. The claimant has pursued this appeal. We note that neither the claimant nor any designated representative attended the hearing before this tribunal on December 17, 2010. As a result, we must rule on this appeal solely upon the papers submitted by the parties.

The gravamen of the claimant’s appeal is that he was totally disabled as of the date of his hearing before the trial commissioner, and therefore, should have been eligible for continued group insurance benefits. As the trial commissioner noted, there was a prior finding from Commissioner Walker that had determined those issues. See McLain v. City of New London Board of Education, 5512 CRB-2-09-11 (November 9, 2010), appeal dismissed, A.C. 32893 (March 17, 2011). Until a new finding was reached establishing the claimant’s eligibility for indemnity or permanency benefits, the trial commissioner had to rule on the record presented. The claimant asserts Marandino v. Prometheus Pharmacy, 294 Conn. 564 (2010) stands for the proposition a claimant who previously was found to have a work capacity can later seek temporary total disability benefits. This decision was based on a commissioner’s power under § 31-315 C.G.S. to reopen an award upon the presentation of persuasive evidence that the claimant’s condition had changed. Id., 583-587. In order for the claimant to obtain the relief he seeks herein he would need, as a condition precedent, to obtain a new finding from a trial commissioner that his condition had deteriorated since the November 24, 2009 decision reached as a result of the formal hearing held by Commissioner Walker. See McLain, supra.

The claimant further asserts that the Kelly and Auger cases relied on by the trial commissioner are not on point as they involved retired employees. We have reviewed these cases. These opinions are not limited to situations involving retired employees and are a generalized prohibition against reliance on § 31-284b C.G.S. to extend group health benefits to any claimant not receiving permanency or indemnity benefits. We find no error on the trial commissioner’s part relying on the Kelly and Auger cases for his decision.

There is no error. The Finding and Dismissal is affirmed and the appeal is dismissed.