Opinion
CASE NO. 904 CRD-6-89-8
FEBRUARY 20, 1991
The claimant was represented at the trial level by Lawrence Fagan, Esq., Rosenzweig, Fagan Sheehan, and on appeal by Kristin Dorney, Esq., Stevens, Moran, Carroll Carveth.
The respondents were represented by Edward S. Downes, Jr., Esq.
This Petition for Review from the August 9, 1989 Finding and Award of the Commissioner for the Sixth District was heard August 10, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Gerald Kolinsky and Angelo dos Santos.
OPINION
Central to respondents' appeal is the claim that it was not proper for the Sixth District to set aside the parties' voluntary Agreement for a twenty-five (25%) per cent permanent partial disability of the back. That agreement entitled claimant to 130 weeks of specific benefits at $160.000 per week.
Subsequent to December 28, 1981, the date on which that Voluntary Agreement was approved, the District held evidentiary hearings November 10, 1988 and February 28, 1989. At those hearings evidence was presented to show claimant continued to be totally disabled from the date of injury October 23, 1978 until February 28, 1989, the date of the last hearing. The commissioner so ruled in his August 9, 1989 decision and awarded claimant total disability benefits form "October 23, 1978, to the present time and to continue until the treating physician releases the claimant."
In their Reasons of Appeal respondents assign as error the commissioner's refusal to grant corrections to the Finding which they sought. The Finding, Paragraph 35 was as follows:
"35. It is found that the claimant as a February 28, 1989 was totally disabled and has been since October 23, 1978, the date of his injury."
Respondents wished to substitute a new paragraph 35 to recite that (1)maximum improvement of claimant's back injury had been reached November 9, 1981, (2)a Form 36 had been approved November 1, 1981, (3)a Voluntary Agreement for one hundred thirty (130)weeks of specific benefits had been approved and (4)specific benefits payments had been made in accordance with that agreement.
They argue that Hicks v. State of Connecticut, 6 Conn. Workers' Comp. Rev. Op. 111, 429 CRD-5-85 (1989) aff'd 21 Conn. App. 464 (1990) is controlling and that claimant's receipt of Social Security disability retirement benefits makes him ineligible for the benefits awarded. We fail to recognize that Hicks is in any way applicable to the present case. The Hicks opinion relied on "certain admissions made in a post-record motion." Hicks, supra, 114. It noted, "In a Motion for Payment dated December 17, 1985, claimant specifically stated that he did not intend to pursue appeal of award set forth in paragraphs D, E, F and G. Paragraphs D and E deal with findings that claimant was entitled to 10% permanent partial disability of the back commencing December 3, 1979, the date of maximum medical improvement.: Id. The December, 1981 agreement here and the declarations there made preceded the hearings held in 1988 and 1989. Hence, this matter involved new evidence about events occurring after December, 1981, evidence about which no one could have known in 1981 at the time of the Voluntary Agreement. Sec. 31-315 permits modification of any award or agreement when there are changed conditions of fact.
We agree with respondents that the commissioner's Finding should have stated that there had been a Voluntary Agreement in December, 1981 for twenty five (25%) per cent permanent partial disability of the back. However, the inclusion of this information would not have changed the result. Under Sec. 31-315 that agreement, like any other, was subject to modification.
Respondents' other argument that somehow the receipt of Social Security benefits rendered claimant ineligible for Sec. 31-307 benefits is more puzzling. If anything, the knowledge that the Social Security Administration had found claimant eligible for total disability benefits would tend to reinforce the commissioner's conclusion that claimant was totally disabled under the Connecticut law. The Social Security law itself recognizes that employees may simultaneously receive both types of benefits, 42 U.S.C. § 424a.
Finally, whether a claimant who has reached maximum medical improvement may continue to collect total disability benefits is a determination within the trial commissioner's discretion, Osterlund v. State of Connecticut, 129 Conn. 591 (1943). Our review is limited to determine whether that conclusion was contrary to law, without evidence or based on unreasonable or impermissible factual inferences. Fair v. People's Savings Bank, 207 Conn. 535 (1988). The commissioner's conclusion violated none of those restrictions.
Insofar as the commissioner's decision seeks to award benefits beyond the February 28, 1989 date of the last evidentiary hearing, it violates our holding Neurath v. UTC/Pratt Whitney, 7 Conn. Workers' Comp. Rev. Op. 99, 725 CRD-6-88-4 (1990). Further evidentiary hearings are necessary to establish total incapacity after February 28, 1989.
Respondents' appeal is dismissed and except for the corrections noted above, the commissioner's Finding and Award is affirmed.
Commissioners Gerald Kolinsky and Angelo dos Santos concur.