Opinion
CASE NO. 1111 CRD-4-90-9
JANUARY 28, 1992
The claimant was represented by Richard McCarthy, Esq.
The respondents were represented by Kevin J. Maher, Esq., Maher Williams.
This Petition for Review from the September 14, 1990 Finding and Award of the Commissioner at Large acting for the Fourth District was heard August 16, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Andrew Denuzze and Gerald Kolinsky.
OPINION
Since the 1971 legislation amending Sec. 31-296, P.A. 510, S. 1, one of the most difficult problems administering the act has been to enforce compliance with that legislative mandate. Respondents' appeal involves the 1971 enactment. Claimant suffered a compensable left knee injury January 31, 1985. Surgery was last performed on the knee in December, 1988. After the surgery respondents continued to pay total disability benefits. On May 17, 1989 they filed a Form "36" Notice to Reduce or Discontinue Benefits. Attached to the form was a report of the attending physician which stated the claimant was capable of light duty. Thereafter on September 13, 1989 the Fourth District Commissioner approved the Form 36 terminating total disability Sec. 31-307 benefits retroactive to May 24, 1989. However between May 24, 1989 and September 13, 1989 the claimant had received her full compensation rate. The commissioner found she was eligible for Sec. 31-308(a) partial disability benefits during that period.
Of the thirteen Reasons of Appeal filed by the respondents, they have only pursued two in their briefs and argument. Essentially, they claim that the benefits paid between those dates be counted toward their liability for specific benefits under Sec. 31-308(b). If that argument prevails, the result would be to reduce the number of specific benefits to be paid by the respondents. To buttress that contention they point to the fact that claimant made no active work search during the weeks in question. The commissioner had concluded that while claimant ready and willing to do light duty during those weeks, there really was no work available for one with her physical and educational deficits, and he therefore excused the claimant's failure actively to seek light duty employment.
As did the trial commissioner, we take administrative notice of the employer's Form 36 filed May 17, 1989. That form sought to discontinue benefits May 10, 1989 because "claimant's capable of work per attending physician Dr. Katz medical report of 4/25/89." The form itself did not include Dr. Katz's signature despite the fact that the form as it appears in the statute, Sec. 31-296, has on it a space for such a signature. Nonetheless, it has long been the practice of the commission to accept an unsigned form to which a doctor's report is attached as substantially complying with the statutory requirements.
There is a further lack in the form as filed. The detailed analysis of Sec. 31-296 contained in Platt v. UTC/Pratt Whitney Aircraft Div., 3 Conn. Workers' Comp. Rev. Op. 3, 164 CRD-6-82 (1985) shows that the statute requires an employer to file the Form 36 and have it approved by the commissioner before the intended termination of benefits. The statutory language states "Before discontinuing Payment . . . under any such agreement the employer shall notify . . . of the proposed discontinuance . . . , with the date of such proposed discontinuance and the reason therefor, and such proposed discontinuance shall not become effective unless specifically approved in writing by the commissioner."(emphasis ours) The use of the preposition "before", the verbal adjective "proposed" and the future tense of the verb "shall" all clearly indicate the legislative intent, i.e. that the discontinuance of benefits was to occur at some time in the future to be approved by the commissioner. The respondents here filed their form on May 17 and requested approval for a termination of benefits on May 10, seven days before the filing of the form. The commissioner however did not permit discontinuance until after the date when the form was submitted. The earliest date on which termination or reduction may be permitted is the date on which the form is filed.
There may be some exceptions. The statute itself only requires the form to be submitted "if it is claimed by . . . the injured person that his incapacity still continues." Also, if an injured person has returned to work, as Platt pointed out, or if the employee has executed a Voluntary Agreement for specific under Sec. 31-308(b), there would be no need to file the form. But Platt emphasized that in all cases it was up to the employer to ascertain whether the employee claimed that the incapacity continued so as to make it necessary to file the form.
The claimant here could not speak English; she was Portugese [Portuguese] but had had no education in her own country; she was illiterate, TR. February 1, 1990, pp. 2, 18, 35. In addition she had had an injury to the knee serious enough so that the treating orthopedist said she could only do lighter work. Sec. 31-308(a) states that if the injury to the employee creates a partial incapacity permitting the employee only to do lighter work as certified by the doctor, and if the employee is willing to do such other work, but no work is available, then partial incapacity benefits are to be paid. The commissioner found those requirements to be met here and ordered payment from May 24 to September 13, 1989. Respondents contend that without a work search by the claimant the commissioner's order was without a proper basis.
But neither the statute nor any administrative regulation requires a work search. The work search practice, instituted by the commission some two decades ago, was borrowed from the procedure employed in administering the unemployment compensation law. Sec. 31-235 lists the requirements for unemployment eligibility. An individual must be able to work, available for work and be making reasonable efforts to find work. In order to demonstrate availability for work and reasonable efforts to find work, unemployment compensation administration has required evidence of work search. Our own Sec. 31-308(a) never specifically included the requirement of reasonable efforts to find work as did the unemployment law. However the work search procedure was informally accepted as an evidentiary basis to demonstrate a willingness to work, and when no work was found, a further basis to demonstrate the unavailability of such work. However there are other evidentiary means by which those requirements may be demonstrated. The commissioner here considered that such other evidence had been presented when he found claimant was willing to do light duty work and no such work was available. Missing from his September 14, 1990 ruling, however, were the subordinate findings on which he based these conclusions.
Given Connecticut's recession of the last several years and the restrictions on claimant's employability we have already noted, it would have not been unreasonable to arrive at the conclusions reached. Further, claimant testified she was willing to work, she underwent a work capacity evaluation in July (Finding, paragraph 6), and she couldn't find work when she did undertake a work search in September. Also, she finally did find part time work in November, work which she took although it was not the light work recommended by the doctor. TR. February 1, 1990, pp. 24-29. If this is the evidence on which the trier relied to reach his conclusions, he should have included it in his findings. As "[n]o case under this act should be finally determined when . . . this court is of the opinion that, through inadvertence, or otherwise, the facts have not been sufficiently found to render a just judgment," Cormican v. McMahon, 102 Conn. 234, 238 (1925), the matter needs to be returned to the Fourth District for further proceedings.
The respondents' appeal is sustained, and the matter is remanded to the Fourth District for further proceedings consistent with this opinion.
Commissioners Andrew Denuzze and Gerald Kolinsky concur.