Opinion
CASE NO. 429 CRD-5-85
FEBRUARY 23, 1989
The claimant was represented by Sean Fitzmaurice, Esq.
The respondent was represented by Michael Belzer, Esq., Assistant Attorney General.
This Petition for Review from the November 6, 1985 Finding and Award of the Chairman acting for the Fifth District was heard on December 4, 1987 before a Compensation Review Division panel consisting of Commissioners Robin W. Waller, Andrew P. Denuzze and Darius J. Spain.
OPINION
The facts as found by the trial commissioner are not in dispute. Claimant suffered a series of compensable injuries while in the employ of the self-insured respondent State of Connecticut: the left elbow and forearm in 1970; the right elbow in 1972; and the back, right arm and right shoulder in 1974. Following the 1974 accident treatment was rendered and compensation paid.
He returned to work for respondents on November 25, 1974 after his physician indicated that he was capable of light work. However, he experienced difficulties and requested a lighter assignment. Although respondent attempted to find lighter work it concluded on August 8, 1975 that there was none available and claimant was terminated on August 22, 1975.
Despite the impairments caused by the compensable injuries claimant retained an earning capacity. In 1976 and 1977 he applied for and was paid unemployment compensation benefits. In 1977 claimant and his family purchased a liquor store. He worked there until 1983 when it was sold. Between in the 1983 and the end of 1984 claimant aided his son operation of a restaurant on a part-time basis although the remuneration was small. In November of that year claimant suffered a brain aneurysm which disabled him thereafter.
After that time in 1985 hearings were held at claimant's request. He claimed compensation for permanent loss of use of his right arm and back, Sec. 31-308 (b) C.G.S., temporary total compensation benefits, Sec. 31-307 C.G.S., and additional benefits for partial permanent disability, Sec. 31-308a C.G.S. As a basis for at least part of his claims he contends that his compensation had been wrongfully terminated 10 years earlier.
In an extensive Finding and Award, the trial commissioner found that claimant was unable to perform his usual work but was ready, willing and able to perform other suitable work. The commissioner ordered temporary total compensation benefits to be paid from August 22, 1975 to January 1, 1976. After that time he found that no physician found him to be totally disabled between January 1, 1976 and December 3, 1979.
The commissioner further found claimant had suffered certain permanent partial disabilities which entitled him to the payment of specific indemnity pursuant to Sec. 31-308 (b) C.G.S. Based on a finding that claimant had suffered a 10% permanent loss of use of the back the commissioner ordered respondents to pay claimant 52 weeks of compensation commencing December 3, 1979, the date of maximum medical improvement, pursuant to Sec. 31-308 (b) C.G.S. Since claimant was totally disabled for eight weeks during this time, the commissioner ordered the payment of eight additional weeks of compensation at the temporary total rate pursuant to Sec. 31-307 C.G.S. Said benefits were to be paid at the conclusion of the period of specific indemnity.
Sec. 31-308. Compensation for partial incapacity . . . . (b) "With respect to the following-described injuries the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be sixty-six and two-thirds per cent of the average weekly earnings of the injured employee, but in no case more than the maximum weekly benefit rate set forth in Sec. 31-309, or less than twenty dollars weekly . . . for the loss of the use of the back, that number of weeks which the proportion of incapacity represents to the maximum of five hundred and twenty weeks . . ."
Sec. 31-307. Compensation for total incapacity . . . ."If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of injury . . ."
Based on a finding that claimant had suffered a 20% loss of use of the right master arm he ordered respondents to pay 62.40 weeks of compensation commencing May 15, 1982, the date of maximum medical improvement pursuant to Sec. 31-308 (b)(1) C.G.S.
Sec. 31-308 Compensation for partial incapacity . . . . (b) With respect to the following-described injuries the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be sixty-six and two-thirds per cent of the average weekly earnings of the injured employee, but in no case more than the maximum weekly benefit rate set forth in section 31-309, or less than twenty dollars weekly: (1) For the loss of the master arm, three hundred and twelve weeks; for the loss of the other arm, at or above the elbow; or the complete and permanent loss of use of the other arm, two hundred and ninety-one weeks.
The commissioner also found that claimant was totally disabled at certain times and ordered respondents to pay compensation on that behalf pursuant to Sec. 31-307 C.G.S. for the periods April 20, 1980 to April 27, 1980 and June 22, 1980 to August 18, 1980. In addition he awarded the payment of testimonial fees and interest on the amounts of compensation.
Claimant appealed the Award to this tribunal. In his Reasons for Appeal dated May 1, 1987 he assigned as error: 1) the commissioner's failure to find benefits (Sec. 31-307 C.G.S.) retroactive to the date of their discontinuance in 1975; 2) interest on the claimed payments and attorney's fees pursuant to Sec. 31-300 C.G.S.; 3) benefits pursuant to Sec. 31-308a C.G.S.; 4) benefits pursuant to Sec. 31-307 C.G.S.; 5) the payment of interest at the rate of 12% on compensation benefits past due pursuant to Sec. 31-300 C.G.S. In the Amended Reasons for Appeal dated May 12, 1987 claimant assigned as error the commissioner's denial of his Motion to Correct the Findings of Fact by amending the Award to add 11 paragraphs of proposed facts.
Claimant has assigned as error a number of paragraphs which appear to be inconsistent with each other and to certain admissions made in a post record motion. 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. Through this admission claimant accepted the legal inferences. The payment of specific indemnity benefits pursuant to Sec. 31-308 (b) C.G.S. precludes the payment of all other benefits (which would include Sec. 31-307 temporary total compensation benefits). The pertinent part of the statute reads as follows:
"(b) With respect to the following described injuries [specific indemnity] the compensation in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be 66-2/3% of the average weekly earnings of the injured employee, . . ." (Underlining added.)
Therefore claimant by acceptance of the award for specific indemnity has by admission accepted the facts supporting it. These facts specifically conflict with the contention that claimant was totally disabled from 1975 onward. They establish that claimant had reached maximum medical improvement on December 3, 1979 and was entitled to payment of specific indemnity benefits from that date for 52 weeks.
In accepting paragraph E of the award, which provides for the payment of specific indemnity benefits from May 15, 1982 for 62.40 weeks for a 20% permanent partial impairment of the right arm, claimant has admitted that he was not totally disabled during this time.
Claimant further contends error was committed by the commissioner's failure to find that claimant was entitled to temporary total compensation benefits Sec. 31-307 C.G.S. However the Award does contain several paragraphs in which claimant was found to be entitled to such benefits. Paragraph A awards payments for the weeks from August 22, 1975 to January 1, 1976; paragraph B awards payment for one week of temporary total compensation commencing April 20, 1980; paragraph C awards payments for seven weeks of temporary total compensation from June 22, 1980 to August 18, 1980.
Since claimant's Reasons for Appeal make no specific reference to the period or periods of time during which he claimed the benefits it cannot then be said that the commissioner erred by limiting the findings of disability. In fact, the commissioner relied upon medical evidence and the testimony of doctors in determining that claimant was in fact not totally disabled as set forth in paragraphs 11 and 17 of the Finding and Award.
Claimant assigns as further error the commissioner's failure to find that claimant was entitled to additional compensation benefits for permanent partial disability pursuant to Sec. 31-308a C.G.S. In support of this contention he requested the inclusion of paragraphs 6 through 10 contained in his Motion to Correct Findings of Fact. He assigns as further error the commissioner's failure to adopt these proposed findings. The statutory authority to make these payments is discretionary:
"Sec. 31-308a Additional Benefits for Partial Permanent Disability. In addition to the compensation benefits provided by Sec. 31-308 for specific loss of a member or the use of function of a member of the body, or any personal injury covered by this chapter, the commissioner, . . . [may] award additional compensation benefits for such partial permanent disability . . ." (Underlining added.)
It is not clear from the record whether claimant requested that the commissioner exercise his discretion to make such payments. However, it is clear from the finding that the commissioner did consider many of the factors concerning eligibility for benefits. Paragraph 18 found him to be unable to do his regular work; paragraph 29 found that he worked in a liquor store for several years between 1977 and 1983; paragraph 30 found that claimant worked part time in a restaurant in 1984; paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 18, 21, 22, 23, 24, 25, 26, 33, 34, 35, 36, 37, 38, 39 and 40 deal extensively with claimant's medical condition and the disabling affect upon his ability to perform work.
The commissioner was certainly in a better position to weigh all of this evidence including the testimony and appearance of the claimant in determining whether to exercise discretion in awarding additional benefits pursuant to Sec. 31-308a C.G.S. By not including a finding for such benefits the commissioner clearly exercised his discretion not to award them. Although the commissioner's discretion is not unfettered, it must stand unless shown to have been abused, Davis vs. Dwight Building Company, 2 Conn. Workers' Comp. Rev. Op. 51, 52, 129 CRD-3-82 (1984). In light of the extensive findings above mentioned it cannot be said that there was an abuse of such discretion.
Claimant assigns as error the commissioner's failure to award interest at the rate of 6% on compensation due. However, paragraph H of the award specifically orders the payment of that amount of interest on all of the periods of compensation he found to be due, including those specifically accepted by the claimant in his Motion for Payment. To the extent that compensation was found to be due the interest that was ordered sufficiently answers claimant's assignment of error in that regard.
Claimant contends further that the commissioner erred in not granting interest and attorney's fees pursuant to Sec. 31-300 C.G.S. (1975). This claim is based on the assertion that respondents unlawfully discontinued benefits in August, 1975 although it is not clear whether claimant received compensation or sick leave benefits at that time. A Form 36-62 (Notice to Compensation Commissioner and Employee of Intention To Discontinue Payments) was stamped received by the Fifth District Commission Office on September 29, 1975 and stamped received at the Sixth District Commission Office on October 2, (claimant's Exhibit I). It is impossible to tell the exact reason for the filing of the forms. Whatever the import of the document it bears the stamp of the then Sixth District Commissioner, the Honorable Julius Kremski dated October 3, 1975, which was apparently intended to indicate an approval of the action requested on the attached missing sheet. The trial commissioner below thus properly denied paragraphs 1-5 of the Motion to Correct Findings of Fact which deal with this issue.
Sec. 31-300. Award as judgment. Interest. Procedure on discontinuance . . ."As soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of his award. The commissioner shall, as part of the written award, inform the employee or his dependent, as the case may be, of any rights the individual may have to an annual cost-of-living adjustment or to participate in a rehabilitation program under the provisions of this chapter. He shall retain the original award in his office. If no appeal from his decision is taken by either party within ten days thereafter, such award shall be final and may be enforced in the same manner as a judgment of the Superior Court. The Court may issue execution upon any uncontested or final award of a commissioner in the same manner as in cases of judgments rendered in the Superior Court; and, upon the filing of an application to the Court for an execution, the commissioner in whose office the award is on file shall, upon the request of the clerk of said Court, send to him a certified copy of such award. In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in his award interest at six per cent per annum in the case of undue delay in adjustments of compensation and may include in his award in the case of undue delay in payments of compensation, interest at twelve per cent per annum. Payments not commenced within thirty-five days after the filing of a written notice of claim shall be presumed to be unduly delayed unless a notice to contest the claim is filed in accordance with Sec. 31-297. In cases where there has been delay in either adjustment or payment, which delay has not been due to the fault or neglect of the employer or insurer, whether such delay was caused by appeals or otherwise, the commissioner may allow interest at such rate, not to exceed six per cent per annum, as may be fair and reasonable, taking into account whatever advantage the employer of insurer, as the case may be, may have had from the use of the money, the burden of showing that the rate in such case should be less than six per cent per annum to be upon the employer or insurer. In cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney's fee. No employer or insurer shall discontinue payment on account of total or partial incapacity under any such award, if it is claimed by or on behalf of the injured person that his incapacity still continues, unless such employer or insurer notifies the commissioner and the employee of such proposed discontinuance in the manner prescribed in Sec. 31-296 and the commissioner specifically approves such discontinuance in writing. The commissioner shall render his decision within fourteen days of receipt of such notice. If the decision of the commissioner finds for the employer or insurer, the injured person shall return any payments received from the day the commissioner receives the notice of discontinuance until the day of approval of such discontinuance. [In any case where the commissioner finds that the employer or insurer has discontinued any such payment without having given such notice and without the commissioner having approved such discontinuance in writing, the commissioner shall allow the claimant a reasonable attorney's fee together with interest at the rate of six per cent per annum on the discontinued payments. (Underlining added.)] [*]
[*] [EDITORS' NOTE: THE TEXT CONTAINED WITHIN THE BRACKETS WAS UNDERLINED IN THE ORIGINAL TEXT.
However, there is a second basis for upholding the trial commissioner's denial of these paragraphs. The portion of the statute under which claimant pursues his claim for mandatory interest and attorney's fees, (Sec. 31-300 C.G.S.) was effectuated by the General Assembly in April of 1975. However, the injury which gives rise to the claimant's rights under the Compensation Act occurred in 1974. At that time the statute did not contain the mandatory provisions. It is well settled law that claimant's rights under the Compensation Act arise through the contract of employment which by implication contains the provisions of the Workers' Compensation Act then in effect, Powers v. Hotel Bond, 89 Conn. 143, 145 (1915). Certainly a statutory amendment requiring the employer to pay mandatory interest and attorney's fees are a substantial addition to claimant's rights. By the same token they are a material variation of the contract by imposing additional obligations upon the employer which did not exist at the time of the 1974 injury. Our Supreme Court has consistently stricken down legislation which impairs the obligation of contracts. In regard to Workers' Compensation the Court specifically stated:
Sec. 31-300 C.G.S. (1974). As soon as may be after the conclusion of any hearing, the commissioner shall send to each party a written copy of his award. He shall retain the original award in his office. If no appeal from his decision is taken by either party within ten days thereafter, such award shall be final and may be enforced in the same manner as a judgment of the superior court. The court may issue execution upon any uncontested or final award of a commissioner in the same manner as in cases of judgments rendered in the superior court; and, upon the filing of an application to the court for an execution, the commissioner in whose office the award is on file shall, upon the request of the clerk of said court, send to him a certified copy of such award. In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where, through such fault or neglect, payments have been unduly delayed, the commissioner may include in his award interest at six per cent per annum. In cases where there have been delay in either adjustment or payment, which delay has not been due to the fault or neglect of the employer or insurer, whether such delay was caused by appeals or otherwise, the commissioner may allow interest at such rate, not to exceed six per cent per annum, as may be fair and reasonable, taking into account whatever advantage the employer or insurer, as the case may be, may have had from the use of the money, the burden of showing that the rate in such case should be less than six per cent per annum to be upon the employer or insurer. In cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney's fee.
"Any legislation which purported to change a substantial term of this contract operative at the time of plaintiff's injury passed subsequent to its making would impair its obligation and fall within the ban of Article First of the Constitution of Connecticut and Article First Section 10 of the Fourteenth Amendment of the Federal Constitution. In holding an Act as applied to a contract of insurance, void because it would impair its obligation in several particulars, we said: 'Any law which changes the intention and legal affect of the original parties, giving to one a greater and to the other a less interest or benefit in the contract, impairs its obligation. The extent of the change is immaterial. Any deviation from its terms by hastening or postponing the time of performance or postponing the time of performance which it prescribes, or imposing conditions not included in the contract, or dispensing with the performance of those that are included, however small and unimportant they may appear to be in their affect, impairs the obligation of a contract . . . . The legislature may regulate the remedy and the method of procedure under a past as well as a future contract, but it cannot impose new restrictions upon the enforcement of a past contract, so as to lessen its value and benefit to either party.'" O'Connor v. Hartford Accident and Indemnity Company, 97 Conn. 8, 15 (1921), quoted by Chief Justice Wheeler writing the Court's opinion in Preveslin v. Derby and Ansonia Developing Company, 112 Conn. 129, 142-43 (1930).
Claimant contends that he was entitled to an award of attorney's fees under the laws that existed at the time of injury. Sec. 31-300 C.G.S. then, as it does now, provided for such an assessment where the commissioner found that the employer unreasonably contested liability. However, there is no such contest for the accidents of 1970, 1972 and 1974. The evidence indicates that the state voluntarily accepted them as compensable and paid benefits on their behalf. There is neither a finding that respondents unreasonably contested liability nor a request for such a finding in claimant's Motion to Correct Findings of Fact. The closest claimant comes to such is paragraph 12 of the Motion to Correct. However, paragraphs 35 and 36 of the Commissioner's Award include most of the requested facts contained in claimant's request. It is the commissioner's role as a trier of fact to determine the evidence on which the decision was based and we will not substitute our findings for his, Adzima v. UAC Norden Division, 177 Conn. 107 (1979).
See footnotes 4 and 5.
The trial commissioner was in the best position to determine whether there was an unreasonable contest of liability to make payment after August of 1975. The claimant contended that he could not work or at least that his capacity was so diminished that his skills were unmarketable. Yet the commissioner was faced with a host of evidence to the contrary, e.g. the claimant applied for and received Unemployment Compensation benefits; the claimant worked in a liquor store and in a restaurant; the testimony of Drs. Poverman, Hogan and Matza, all to the effect that claimant had some work ability. The Supreme Court has set forth a guideline in such situations which governs our decision here:
"The commissioner was in a position to hear all of the relevant testimony, and he could best decide whether the respondents' contention found support in the evidence. On the basis of what appears in the record before us and in the appendices to the parties' briefs, we cannot conclude that the Commissioner erred in finding that the contest of liability was not unreasonable." Balkus v. Terry Steam Turbine Company, 167 Conn. 170, 179 (1974). (Footnote omitted.)
If we were to assume for argument's sake, that discontinuance of benefits was never properly approved as claimant contends, the trial commissioner acted to address that omission. In paragraphs 17 through 20 he laid the factual ground work for the award of temporary total compensation plus interest for the period August 22, 1975 to January 1, 1976. There might be some question concerning the factual basis for such a legal conclusion but since neither party has assigned that portion of the award or the factual paragraphs underlying it as error we will not act to disturb it.
Therefore the award of the trial commissioner must be affirmed.
Commissioners Andrew P. Denuzze and Darius J. Spain concur.