Opinion
CASE NO. 1485 CRB-1-92-8
MARCH 29, 1994
The claimant was represented by Robert F. Carter, Esq., Carter, Rubenstein Civitello.
The respondent was represented by Loida D. John, Esq., Assistant Attorney General.
This Petition for Review from the July 29, 1992 Finding and Award of the Commissioner for the First District was heard April 30, 1993 before a Compensation Review Board panel consisting of Commissioners Frank J. Verrilli, James J. Metro and Angelo L. dos Santos.
OPINION
The claimant suffers from severe acquired angioedema resulting in disability to various parts of her body. The claimant's condition developed as a result of several chemical exposures in the workplace in 1987. The parties agreed that the number of weeks of permanent partial disability that the claimant will receive will be 358.8 weeks. At issue before the trial commissioner and on appeal is the determination of the applicable average weekly wage and corresponding compensation rate.
In November 1988, the claimant executed a voluntary agreement which indicated that she sustained an injury on June 12, 1987 from exposure to chemicals. That agreement included a compensation rate of $408 with an average weekly wage based on wages during the 26 weeks prior to June 12, 1987, the date of injury. The trial commissioner concluded that the compensation rate previously agreed to by the claimant was proper and that no change in the voluntary agreement was appropriate pursuant to Sec. 31-315.
The claimant argues that she did not become incapacitated as a result of her occupational injury until January 31, 1990, when she reached maximum medical improvement and when her permanent partial incapacity was first assessed by her treating physician. The claimant points out that although her condition was diagnosed and although she went for some medical visits in 1987, she was never disabled from working in 1987 and did not receive temporary total disability benefits. Relying on Stevens v. Raymark Corporation/Raybestos Manhattan, 28 Conn. App. 226, cert. denied, 223 Conn. 921 (1992), the claimant contends that the date on which her permanent incapacity was first assessed is the proper "date of injury" for purposes of calculating her average weekly wage and resulting compensation rate.
If, as the claimant argues, she was not incapacitated prior to the assessment of permanency in 1990, then the Stevens case and General Statutes Sec. 31-315 would mandate a modification of the voluntary agreement to reflect a different compensation rate. The trial commissioner, however, found that the claimant became ill due to exposure to chemical fumes in June, 1987, and was disabled from work. As this finding is supported by the record, the commissioner's conclusion regarding the appropriate compensation rate must stand.
At the formal hearing before the trial commissioner, the parties stipulated: "The Voluntary Agreement indicated the date of accident of June 12, 1987, based on the claimant's recollection of the incident of the installation of the new carpet at her place of employment. The claimant, by shifting her worksite to a different location, by inducing the respondent to protect her work station from chemical exposures and by working at home, had no period of temporary total disability, although she did have time lost for medical visits. The claimant was paid no disability benefits under the Workers' Compensation Act although we believe she was paid sick pay for the time that she lost from work." (Emphasis added) Transcript of October 15, 1991, p. 6. Clearly, the claimant's incapacity to work arose when she could not perform her work and elected sick pay for those days. Other evidence in the record supports the commissioner's finding that the claimant lost time from work in 1987 due to her occupational injury, well before the 1990 date of first incapacity to work which she claims. See Joint Exhibit 3, Report of Dr. Norman Bedard dated June 14, 1988, pp. 1 and 3 (documenting missed days from work due to compensable medical condition); Joint Exhibit 2, Reports of Dr. Mark Cullen dated July 13, 1990, p. 2 (documenting missed days of work due to complications arising from claimant's compensable medical condition). Because the evidence supports the commissioner's finding that the claimant's first incapacity to work was in 1987 and because the commissioner's conclusion regarding the calculation of the compensation rate based on that finding is proper under the Stevens case, the commissioner's decision regarding the claimant's compensation rate must stand.
This conclusion is reinforced by General Statutes (Rev. to 1987) Sec. 5-143 which, at the time of the claimant's injury, provided in pertinent part: "Each state employee who sustains an injury arising out of and in the course of his employment . . . shall be paid compensation in accordance with the workers' compensation act, provided, notwithstanding any provision of section 31-295, any such employee who is incapacitated by such an injury shall receive his full salary or wages for the first seven days of such incapacity." (Emphasis added.)
The claimant also challenges the commissioner's failure to grant statutory interest on past due specific benefits. General Statutes Sec. 31-295 (c) provides for the mandatory payment of interest at an annual rate of 6% where payment for permanent disability is not made within thirty days following the date of maximum medical improvement. Apparently, while the respondent did advance about a year of permanent partial disability benefits following the attainment of maximum medical improvement, certain past due benefits were not paid at the time of the hearing. Accordingly, the trial commissioner's award should have ordered the respondent to pay interest at the rate of 6% per annum on any past due and unpaid permanent partial disability benefits.
In her brief, the claimant contends that at the time of the hearing on October 15, 1991, permanent partial disability benefits were past due from January 29, 1991, when the advance payment by the respondents was terminated; that the past due benefits from January 29 through December 26, 1991, were not paid until January 3, 1992 despite an agreement at the October 15, 1991 hearing regarding the number of weeks of specific benefits to be paid. Since certain of these allegations involve a time period after the close of evidence before the trial commissioner, the exact timeframe during which interest on those past due benefits should be ordered must be determined on remand. The record is clear, however, that specific benefits had not been paid for some time prior to the October 15, 1991, necessitating an award of interest pursuant to Sec. 31-295 (c).
We, therefore, affirm the trial commissioner's determination of the claimant's compensation rate, but remand the case to the commissioner to include an appropriate order of interest pursuant to General Statutes Sec. 31-295 (c).
Commissioners Frank J. Verrilli and James J. Metro concur.