Opinion
CASE NO. 1765 CRB-2-93-6
MAY 4, 1995
The pro se claimant was not represented at oral argument.
The respondent was represented by Philip M. Schulz, Esq., Assistant Attorney General.
This Petition for Review from the June 15, 1993 Ruling on Respondent's Motion to Find Overpayment of Compensation of the Commissioner acting for the Second District was heard September 30, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Michael S. Miles.
OPINION
The respondents have petitioned for review from the Second District Commissioner's June 17, 1993 Ruling on their Motion to Find Overpayment of Compensation. They contend on appeal that the commissioner improperly ruled that the discontinuance of the claimant's benefits was effective on the date of the last formal hearing rather than on the date the respondents' Form 36 was filed. We reverse the trial commissioner's decision.
The claimant suffered a compensable back injury in 1980, which was accepted by voluntary agreement. On August 8, 1988, the respondents filed a Form 36 Notice of Intention to Discontinue Payments, along with a medical report by Dr. Fredericks supporting their position. Four formal hearings were held in 1989 before the trial commissioner. The commissioner initially denied without prejudice the request to discontinue compensation on April 6, 1990, because the respondents' failed to properly notice the claimant of Dr. Fredericks' deposition, which rendered his evidence inadmissible. Upon correction of the error, however, the commissioner allowed the report and deposition into evidence and found on March 10, 1992 that the respondents' had met their burden of proving the claimant was no longer totally disabled.
The commissioner discontinued benefits as of August 8, 1988, the filing date of the Form 36. The respondents then filed a motion to find overpayment of compensation. On June 15, 1993, the commissioner decided that his prior ruling had been in error, and that pursuant to § 31-296 C.G.S., benefits should be discontinued as of November 14, 1991, the last formal hearing date. The claimant was ordered to reimburse the respondents for any compensation received after that date. The respondents appeal from that decision.
Section 31-296 provides in relevant part: "Before discontinuing or reducing payment on account of total or partial incapacity under any [voluntary] agreement, the employer, if it is claimed by or on behalf of the injured person that his incapacity still continues, shall notify the commissioner and the employee, by certified mail, of the proposed discontinuance or reduction of such payments, with the date of such proposed discontinuance or reduction and the reason therefor, and, such discontinuance or reduction shall not become effective unless specifically approved in writing by the commissioner. The employee may request a hearing on any such proposed discontinuance or reduction within ten days receipt of such notice. . . . The commissioner shall not approve any such discontinuance or reduction prior to the expiration of the period for requesting a hearing or the completion of such hearing, whichever is later."
The respondents argue that, along with § 31-296, the commissioner should have taken into consideration other parts of the Workers' Compensation Act. Specifically, they cite § 31-307(a) C.G.S., which provides that an employee entitled to total disability benefits under that section shall not receive compensation longer than the period of total incapacity. They also cite § 31-300 C.G.S., which requires an employer to notify the commissioner and the claimant in the manner prescribed by § 31-296 of a proposed discontinuance of benefits being paid pursuant to a finding and award, and requires the commissioner to render a decision within fourteen days of receipt of that notice. In the event that the employer prevails, the claimant is required to return "any wrongful payments received from the day designated by the commissioner as the effective date for the discontinuance or reduction of benefits."
The respondents acknowledge that § 31-296 governs voluntary agreements, while §§ 31-300 and 31-307 address the status of the parties during the formal hearing process and after the issuance of a finding and award. They argue, however, that employers who enter into voluntary agreements should not be treated differently from employers who do not accept claimants' injuries, especially given language in § 31-296 that makes an approved voluntary agreement binding upon both parties as an award.
An employer who is paying compensation for total or partial incapacity under a written agreement, oral agreement or an award must notify the commissioner and the claimant of his intent to discontinue such payments by filing a Form 36 before the date of proposed discontinuance. Platt v. UTC/Pratt Whitney Aircraft Division, 3 Conn. Workers' Comp. Rev. Op. 3, 7, 164 CRD-6-82 (Aug. 16, 1985). "Since the Form 36 procedure is prospective, there should be no prejudice to the employer under any circumstances, since if . . . the employee still contends to be totally incapacitated, the employer can file Form 36 and request an immediate informal hearing before the Commissioner." Id., 10-11. We have also held that the earliest date on which termination or reduction of benefits is permitted to become effective is the date on which the Form 36 is filed. Goncalves v. Cornwall Patterson, 10 Conn. Workers' Comp. Rev. Op. 43, 44, 1111 CRD-4-90-9 (Jan. 28, 1992).
When Form 36 procedure is considered in conjunction with § 31-307, it becomes evident that the legislature intended that a claimant should stop receiving total disability benefits as soon as possible after his or her incapacity ceases, effective on the date the incapacity ceases. There is no imaginable reason why the legislature would intend a different result where a voluntary agreement is in effect. Such a result would be unjust to employers, and would encourage employers and their insurers to contest claims.
Also, § 31-296 requires the commissioner to wait before approving the Form 36 to ensure that the claimant has a chance to contest the discontinuance of benefits. The statute does not speak directly to the effective date of such approval. We thus hold that, in granting a Form 36, a trial commissioner should discontinue or reduce benefits effective on the date the Form 36 was filed, unless extenuating circumstances dictate that a later date is more appropriate. This is true regardless of whether benefits were discontinued under § 31-296 or § 31-300.
Although § 31-296 does not set a specific time limit for the completion of a hearing on discontinuing benefits, the fact that the legislature prohibited approval of a Form 36 "prior to the expiration of the period for requesting a hearing or the completion of such hearing, whichever is later," shows that the legislature contemplated that a hearing on a Form 36 might be completed before the notice period expired. Under the statute, a claimant has ten days from receipt of notice of the employer's intent to discontinue benefits in which to request a hearing. This strongly suggests that the legislature assumed that a very brief time period would ensue before benefits were discontinued, as is the case with § 31-300.
In the instant matter, the employer's Form 36 was received on August 8, 1988. Benefits were discontinued as of November 14, 1991, the date of the last formal hearing, even though there is no indication that the claimant remained disabled beyond the date the Form 36 was filed. We are quite certain that the legislature never contemplated that the issues raised in the Form 36 could possibly require five formal hearings and additional proceedings after the initial informal hearing on the Form 36, over the course of three and one-half years before approving an employer's request to discontinue benefits. To require the Form 36 to become effective only after the close of these lengthy proceedings would compound the injustice of the delay in discontinuing benefits by providing the claimant with an unwarranted windfall. This Board will not interpret a statute such as § 31-296 as permitting such a bizarre result where a more rational and effective construction of the statute is evident. See State v. Uretek, Inc., 207 Conn. 706, 719 (1988).
As discussed above, there is indeed a more rational reading of § 31-296 available. Beyond our conclusion that, as a general rule, the appropriate effective date of a Form 36 is its filing date, we also seek to clarify the meaning of § 31-296 for future cases. That statute refers only to a "hearing," not a formal hearing, being requested by an employee. See Oliver v. Electric Boat Division, 3 Conn. Workers' Comp. Rev. Op. 117, 118, 225 CRD-2-83 (Dec. 23, 1986). Rather than interpreting "hearing" as referring to the last in a long series of formal hearings, which, in the best of circumstances, could not be conducted in a two or three-week period, we hold that the term "hearing" in § 31-296 refers to a single emergency informal hearing. The hearing should be held as soon as possible after the claimant objects to the Form 36, and the commissioner should render his or her decision at the hearing or shortly thereafter by distributing a copy to the parties. This procedure has been outlined in a February 14, 1994 directive of Commission Chairman Jesse M. Frankl.
In conclusion, we hold that the trial commissioner should not have determined that the effective date of the respondents' Form 36 was November 14, 1991, instead of August 8, 1988. The commissioner's decision on the Motion to Find Overpayment of Compensation is reversed, and the case is remanded for the entry of an order requiring the claimant to repay all compensation benefits received by her after August 8, 1988.
Commissioners Angelo L. dos Santos and Michael S. Miles concur.