Opinion
CASE NO. 1088 CRD-8-90-7
DECEMBER 13, 1991
The claimant was represented by Brian Mahon, Esq., and A. Elaine Rogers Parsons, Esq. both of Weigand, Mahon Adelman.
The respondents were represented by Ralph Russo, Esq., McGann, Bartlett Brown.
This Petition for Review from July 20, 1990 Finding and Award of the Commissioner for the Eighth District was heard May 31, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Andrew Denuzze.
OPINION
Overpayment of benefits because of alleged claimant fraud and jurisdiction to enforce a criminal misdemeanor statute, Sec. 31-290b, are the bases for respondents' appeal. A Voluntary Agreement approved September 23, 1988 set out the jurisdictional facts in this case and stated that claimant on May 28, 1987 sustained an acute strain of the lumbosacral spine. The respondents paid the claimant temporary total benefits from May 29, 1987 to June 15, 1987, the date of his return to employment. For a six week period from March 15, 1988 to April 26, 1988 he was paid six weeks of payments as an advance against future permanency without prejudice and again paid temporary total benefits from July 18, 1988 to November 28, 1988.
On December 2, 1988 the respondents claimed in a Form 43 the following:
"Respondent contends that there is a probable violation by claimant of Section 31-290b; claimant has been engaging in activities that are the same or equivalent to the physical requirements of his usual occupation. Respondent, hereby, challenges the extend of the disability and would like to seek any appropriate reimbursements and legal remedies available".
Claimant contended that he was entitled to receive temporary total disability benefits for the periods May 29, 1987 to June 15, 1987 and July 9, 1988 to December 19, 1988.
The commissioner found, inter alia, that there was no evidence to support a claim that claimant had a work capacity during the entire period from July 18, 1988 through November 28, 1988. However he did conclude that the respondents' surveillance beginning October 15, 1988 indicated claimant was not entitled to temporary total disability benefits subsequent to October 15, 1988.
On appeal respondents contend (1) the trial commissioner's conclusion as to the claimant's eligibility for total incapacity benefits was inconsistent with the facts found and evidence presented and (2) the commissioner erred in failing to make any finding as to Sec. 31-290b's provision prohibiting false statements in relation to Workers' Compensation claims.
As an appellate tribunal we cannot disturb the conclusions of the trial commissioner unless found without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People's Savings Bank, 207 Conn. 535 (1988). Further if the conclusions are inconsistent with the facts found, then we may order a remand. See e.g., Halliday v. Daw's Critical Care Registry Inc., 8 Conn. Workers' Comp. Rev. Op. 74, 797 CRD-7-88-12 (1990) [.]
Here, the respondents are arguing that the factual findings are inconsistent as reflect by the following: In Finding #25 the commissioner states "I cannot say, as requested by the respondents, that the claimant has not been totally disabled for the entire period from July 18, 1988 through November 28, 1988, as there is no evidence to support such claim." In paragraph #26
"It is abundantly clear to the undersigned that the claimant was not totally disabled on the occasion of the surveillance of the claimant initiated on October 15, 1988, and thereafter on November 16, 18, 19, 1988, when he was observed doing physical labor, and he, therefore, was not entitled to received (sic) temporary total disability benefits subsequent to October 15, 1988."
These two paragraphs do appear inconsistent. The commissioner's intent apparently was to deny that respondents had presented evidence of work capacity for the entire period but that there was such evidence for part of the period. In paragraph #8 the trial commissioner found that the claimant was an equal partner in Tessier's Nursery, a business entity which purchased supplies and nursery products from Kogut's Nursery. Paragraphs #10 and 11 state, "Invoices from Kogut's Nursery show orders placed and picked up by Tessier's Nursery in each month claimant alleges total incapacity." "Undisputed is the fact, that except that on three or so occasions, the claimant made the phone calls to Kogut's Nursery to place the orders, drove the Tessier Nursery truck to Meriden to pick up the orders, and entered the premises of Kogut's Nursery to deal directly with Kogut Nursery's people in placing orders and picking up invoices." He also found that the claimant denied active participation in the business but did water the plants and shrubs.
These findings are inconsistent with a conclusion that claimant was totally disabled from work during the period July 18, 1988 to October 15, 1988. Specifically, we note Respondent's Exhibit 4 which details invoices from Kogut's Nursery and provides dates from which the trial commissioner could reasonably conclude that the claimant was involved in the pick-up process from items shipped from Kogut's Nursery to Tessier Nursery. Some of the dates of the invoices also include periods when the claimant alleges total incapacity, i.e. prior to October 15, 1988. See also December 11, 1989 Deposition of Rose Rourke at 13-20. (Respondent's Exhibit 8)
As to the Sec. 31-290b issue we agree that the commissioner had no criminal law jurisdiction. The commissioner did find, paragraph #24, that claimant understood the meaning of total disability and knew that he could not do any work and be eligible for total benefits. He also found, paragraph #27, claimant was not totally disabled from October 15 to November 28 and was therefore ordered to reimburse the respondents for overpayment of benefits received for those weeks. These findings, if admissible in a criminal law proceeding, would be probative of a mens rea and of a violation of that statute. But as a compensation commissioner, this trier had no criminal jurisdiction to declare claimant had committed a class A misdemeanor as there defined.
Sec. 31-290b was repealed by Public Act 90-244.
Section 53a-24(a) C.G.S. provides in pertinent part:
The term "offense" means any crime or violation which constitutes a breach of any law of this state or of federal law or local law or ordinance of a political sub-division of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction. The term "crime" comprises felonies and misdemeanors. Every offense which is not a "crime" is a "violation." Correction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense.
Section 53a-36 then sets out the sentences for misdemeanors.
Sec. 53a-36. Imprisonment for misdemeanor: Maximum and minimum sentences. A sentence of imprisonment for a misdemeanor shall be a definite sentence and the term shall be fixed by the court as follows: (1) For a class A misdemeanor, a term not to exceed one year except that when a person is found guilty under section 53a-61(a)(3), the minimum term shall not be less than one year and such sentence shall not be suspended or reduced, or when a person is found guilty under section 53a-61a, the minimum term shall not be less than one year and such sentence shall not be suspended or reduced; (2) for a class B misdemeanor a term not to exceed six months;. (3) for a class C misdemeanor a term not to exceed three months; (4) For an unclassified misdemeanor a term in accordance with the sentence specified in the section of the general statutes that defines the crime.
Workers' Compensation tribunals are creatures of statute and have limited jurisdiction. Castro v. Viera, 207 Conn. 420 (1988). They therefore do not have the plenary authority available to the judiciary. We therefore conclude that the trial commissioner did not err in failing to make any factual findings pursuant to Sec. 31-290b. But our silence on this issue deriving from our limited jurisdiction is not to be misconstrued as condoning fraudulent practices engaged in by party litigants in this forum.
We therefore remand to the Eighth District for further proceedings consistent with this opinion.
Commissioners Robin Waller and Andrew Denuzze concur.