Opinion
CASE NO. 164 CRD-6-82
AUGUST 16, 1985
The Claimant was represented by Edward T. Dodd, Jr., Esq.
The Respondents-Appellants were represented by Brian Prindle, Esq.
The Second Injury and Compensation Assurance Fund was a Respondent in the hearing before the Commissioner and was noticed for this argument before the Compensation Review Division. The Second Injury and Compensation Assurance Fund is not involved in the issues in this appeal, and did not appear at the argument before this tribunal.
This Petition for Review from the August 31, 1982 Finding and Award of the Commissioner at Large acting for the Sixth District was argued on October 28, 1983 before a Compensation Review Division panel consisting of Commissioners A. Paul Berte, Rhoda Loeb and Frank J. Verrilli.
OPINION
On August 31, 1982, the Commissioner at Large (hereinafter the Commissioner) acting for the Sixth District entered a Finding and Award awarding the claimant compensation for temporary total disability for the period July 10, 1980 through December 2, 1980. The respondents filed a timely appeal, and on February 3, 1983, they filed a three paragraph Motion to Correct. The respondents' Motion to Correct was denied by the Commissioner on February 15, 1983.
The respondents' Reasons of Appeal and brief, they addressed three (3) issues as follows:
1. That the Commissioner erred in denying Paragraphs 1 thru 3 of the Respondents' Motion to Correct.
2. The Commissioner erred as a matter of law in finding that the Respondents must pay temporary total disability due to a failure to file a Form 36, because the Claimant actually returned to work when benefits were terminated, and under such circumstances a Form 36 is not required.
3. The Commissioner erred in finding the Claimant entitled to temporary total disability, as the record is devoid of any evidence to support a finding of total incapacity.
There is no dispute that on April 16, 1979, claimant sustained a compensable injury to his left shoulder. A Voluntary Agreement was issued, and was approved July 1, 1980. Claimant had surgery for his compensable injury on November 20, 1979, and was totally disabled and paid benefits for temporary total disability for a time thereafter. In his Finding and Award, the Commissioner found that the "Respondent did not file a Form 36 between the date of surgery, November 20, 1979 and July 9, 1980, the date when payments were terminated." (Paragraph 8.). The Commissioner also found that "Termination of payments without the filing and approval of a Form 36 was improper". (Paragraph 9.).
The issues in this appeal involve questions of first instance interpreting 31-296 of the Connecticut General Statutes, and the Form 36 procedure. Form 36 is the Workers' Compensation Commission Form entitled "NOTICE TO COMPENSATION COMMISSIONER AND EMPLOYEE OF INTENTION TO DISCONTINUE PAYMENTS" required to be filed and approved by the Commissioner in certain instances before the employer is allowed to discontinue payments of compensation for total or partial incapacity.
Sec. 31-296. Voluntary agreements. If an employer and an injured employee, or in case of fatal injury his legal representative or dependent, at a date not earlier than the expiration of the waiting period, reach an agreement in regard to compensation, such agreement shall be submitted in writing to the commissioner by the employer with a statement of the time, place and nature of the injury upon which it is based; and, if such commissioner finds such agreement to conform to the provisions of this chapter in every regard, he shall so approve it. A copy of the agreement, with a statement of the commissioner's approval thereof shall be delivered to each of the parties and thereafter it shall be as binding upon both parties as an award by the commissioner. The commissioner's statement of approval shall also 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 agreement, with his approval thereof, in his office and, if an application is made to the superior court for an execution, he shall, upon the request of said court, file in the court a certified copy of the agreement and his statement of approval thereof. [Before discontinuing payment on account of total or partial incapacity under any such 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 of the proposed discontinuance of such payments, with the date of such proposed discontinuance and the reason therefor, and, such discontinuance shall not become effective unless specifically approved in writing by the commissioner.] [**] Such notice of intention to discontinue payments shall be in substantially the following form: (underlining ours)
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WORKERS' COMPENSATION COMMISSION OF CONNECTICUT NOTICE TO COMPENSATION COMMISSIONER AND EMPLOYEE OF INTENTION TO DISCONTINUE PAYMENTS.
To the Compensation Commissioner for the . . . . Congressional District and to . . . ., employee:
You are hereby notified that the undersigned employer will on the . . . . day of . . . ., 19. ., discontinue the payments of compensation to the above-named employee for the following reason, to wit:
. . . .Employer by . . .(Indicate Official Position), Insurer of Agent
I HEREBY CERTIFY that the above named employee is able to return to usual light work on the . . . . day of . . . ., 19. . . selected
will There will not be permanent loss or loss of use of . . . .(member) . . . . Attending Surgeon
The following blanks are to be filled out in order that the case may be properly located in the records of the Commissioner.
Date of Injury . . . .
Date of Award or approval of agreement . . . .
Date when mailed by respondents . . . .
Form 36 is the Workers' Compensation Commission Form No. 36-67 which is essentially the same as the form included as part of 31-296 set out in footnote 1 above.
Form 36 procedure was the subject of a policy statement by the Commission at its May 17, 1984 Commissioners' Meeting. At that meeting the Commission adopted a uniform Form 36 procedure. Effective July 1, 1984, when the Commissioner receives a Form 36 the Commissioner will mail the claimant and respondent the following notice: "The Form 36 received (date) will be approved within ten days, retroactive to the date of receipt by this office, unless contested by the claimant. In the event the claimant contends incapacity continues, compensation must be paid to the date that a hearing is held for determination of incapacity." This administrative policy prohibits employers or insurers from discontinuing benefits by filing a Form 36 if the claimant contests until an informal hearing can be held on the matter. Although this procedure was not in effect at the time of the instant claim, the provisions of 31-296 which are the subject of this appeal have not changed since the date of injury in the instant case.
The respondents have argued that the Commissioner found the claimant entitled to further temporary total incapacity benefits for the period July 10, 1980 through December 2, 1980, due to the respondents failure to file a Form 36, i.e. there can be no discontinuance of benefits for temporary total incapacity without an approved Form 36. The respondents further contended that the Commissioner failed to find undisputed facts material to this appeal which established that the claimant returned to work on May 14, 1980, at which time compensation benefits were discontinued until December 3, 1980 when payments for specific injury of 15% permanent partial impairment of the left shoulder were commenced. The respondents further argued that once claimant returned to work on May 14, 1980, they had no further obligation to pay claimant benefits for temporary total incapacity, and that if the claimant was entitled to any additional incapacity benefits, for instance temporary partial, the burden was on the claimant to establish those additional benefits.
Paragraph 3 of the Commissioner's Finding and Award states "15% permanent partial disability of the right shoulder was approved January 20, 1981". There is no dispute that the injury was to claimant's left shoulder. We reviewed the voluntary agreement in the District file which was sent to us, and it states "15% of the left minor shoulder".
The claimant argued that under 31-296 the respondents are not permitted to discontinue payments for temporary total or temporary partial incapacity benefits in any case without filing a Form 36 and having it approved in writing by the Commissioner. In the present case the respondents filed no Form 36 applicable to the period July 10, 1980 through December 2, 1980, and the Commissioner found, that, the respondents are obligated to pay claimant temporary total incapacity benefits for said period.
The Commissioner found in paragraph 6 of his Finding and Award that "A Form 36 was filed and approved September 12, 1979; another Form 36 was filed and approved at the end of the specific period, October 20, 1981". There is no further finding by the Commissioner to indicate any relevance those Form 36's had to the period July 10, 1980 through December 2, 1980.
The respondents contended that 31-296 requires only that the employer obtain an approved Form 36 before discontinuing benefits when the claimant claims "that his incapacity still continues". 31-296, see Footnote 1, supra.
In the present case, the claimant did not maintain that his total incapacity continued at the time his benefits were discontinued on May 14, 1980, but in fact worked for the employer as a seam welder from May 14, 1980 for about one month. (Transcript, July 2, 1982 hearing, claimant's testimony, pages 9-10).
We agree with the respondents that the statute does not require a Form 36 to be filed and approved in writing by the Commissioner in every case in which the employer intends to discontinue payments for total or partial incapacity. And we also agree with the claimant that 31-296 is clear and unambiguous. It is clear and unambiguous as to when an employer must have an approved Form 36 before discontinuing benefits.
The rule to be followed is that the only time a Form 36 must be filed and approved in writing by the Commissioner is as follows: When an employee is receiving compensation for total or partial incapacity under an agreement, oral or written, an award, or where the employer's acceptance of compensability has been conclusively presumed under subsection (b) of 31-297, C.G.S., and the employee contends that his incapacity still continues, if the employer intends to discontinue such payments, the employer must notify the Commissioner and employee of the proposed discontinuance, i.e. the notification must be [before the date of proposed discontinuance], by filing Form 36 with the Commissioner and the employee (underlining ours) Such proposed discontinuance shall not become effective unless specifically approved in writing by the Commissioner. Under this procedure, the burden is on the employer to determine before the employer files Form 36 to discontinue payments whether or not the employee who is receiving compensation for total or partial incapacity claims that his incapacity still continues. If the employee claims his incapacity continues, the Form 36 procedure is mandated by the statute. If the employee is not claiming that his incapacity continues, there is no obligation on the employer to file a Form 36.
We emphasize that the Form 36 is to be submitted to the Commissioner and employee [before]fn__ the date of intended discontinuance. (underline ours). The focus of the Form 36 is prospective i.e. NOTICE TO COMPENSATION COMMISSIONER AND EMPLOYEE OF [INTENTION TO DISCONTINUE PAYMENTS]fn__ (underline ours). Frequently the Form 36 is submitted by the employer to the Commissioner and the employee after the date of discontinuance, which is contrary to the intention of the Form 36 and the law. Such improper actions by the employer in illegally discontinuing benefits before the Commissioner's approval causes much unnecessary hardship on employees whose benefits are discontinued without authority, unnecessary litigation for the parties to the claim, unnecessary hearings before the Commissioners, and subjects the employer and carrier to potential punitive actions under the Workers' Compensation Act.
Penalty provisions under the Workers' Compensation Act relevant to improper discontinuance of payments for total incapacity specifically include: 31-288. [Additional liability. Penalty for undue delay.] [**] which provides in relevant part, "(a). If an employer wilfully fails to conform to any other provision of this chapter, he shall be fined not more than two hundred lift dollars for each such failures"; and 31-300, which provides in relevant part as follows: ". . . 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 section 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 ours)
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Another issue that presents itself in this case concerning the Form 36 procedure is what obligation does an employer have to file a Form 36 and have it approved by the Commissioner when a claimant has in fact returned to work. Considering our rule above that the only time an employer has the obligation to file a Form 36 is when claimant contends his incapacity continues, one could argue that since the claimant returned to work he could not be prejudiced by the absence of a Form 36 since he could not have expected to continue receiving incapacity benefits once he returns to work. Under this analysis there would be no obligation on an employer to file a Form 36 when an employee has returned to work. Such a rule would be too broad however in light of the fact that the law contemplates the determination concerning whether or not a Form 36 must be filed would be made by the employer in all cases [before]fn__ the claimant returns to work. (underline ours)
The language in 31-296 and 31-296a concerning discontinuing benefits on account of total or partial incapacity that states "if it is claimed by or on behalf of the injured person that [his incapacity still continues"]fn__ (underlining ours), refers to the very same incapacity which the parties agreed claimant had, and for which the respondents were paying compensation. Accordingly, if claimant is receiving compensation for total incapacity and the employer intends to discontinue payments for total incapacity, the employer must determine if the employee claims that his [total incapacity]fn__ still continues. (underlining ours) If the employee does not claim his total incapacity continues there would be no obligation on the employer to file a Form 36 to discontinue payments for total incapacity. If the employee does not claim his total incapacity continues but claims he is now partially incapacitated, the claimant would make claim pursuant to 31-308(a) for partial incapacity benefits, and if agreement is reached, the law contemplates the parties would enter into a written agreement for partial incapacity pursuant to 31-296.
The Workers' Compensation Commission's Voluntary Agreement Form WCC-1 contemplates that the parties will reach separate agreements as to total or partial incapacity, and the agreement form will reflect the agreement in either Paragraph 14. TOTAL INCAPACITY, or Paragraph 15. PARTIAL INCAPACITY, of the form.
If, however, the employee is receiving benefits for partial incapacity and is out of work, it would not be inconsistent with his partial incapacity status and the continued receipt of partial incapacity benefits, for the employee to return to work and still claim to be partially incapacitated. Under these circumstances, the employer would be violating the provisions of 31-296 and the Form 36 procedure, by discontinuing payments for partial incapacity just because the claimant has returned to work. For instance, assume claimant is out of work, receiving temporary partial incapacity benefits, and has a comparable wage under the provisions of 31-308(a) of $450.00 per week. Claimant then returns to work and has an earnings ability of $300.00 per week. Under 31-308(a) claimant would be entitled to continuing benefits for partial incapacity.
Form 36 procedure is applicable to both forms of incapacity, partial and total. Since the burden is on the employer to determine whether or not incapacity, whether total or partial, continues before the employer is allowed to discontinue benefits, we see no reason to establish a special rule for the situation where an employee has returned to work. The law requires that the employer will be monitoring the status of the case concerning the employee's incapacity status, and it is presumed that the employer would know when the employee will be returning to work. Since the Form 36 procedure is prospective, there should be no prejudice to the employer under any circumstances, since if the employee is receiving temporary total incapacity benefits and is certified by the attending physician as able to return to work on some date in the future, and that employee still contends to be totally incapacited, [incapacitated] the employer can File Form 36 and request an immediate informal hearing before the Commissioner.
In addition to the provisions of 31-296, 31-296a, and 31-300, Workers' Compensation Commission Admin. Regs. 31-279-9. Obligations or, attending physician, paragraph (c) provides, ". . .(c) [It shall be the duty of the attending physician, without specific request, to keep the employer or insurance carrier advised of any significant development in the course of his treatment, such as] [**] the attainment of maximum medical improvement, a hospital, admission, a surgical procedure, a failure to accept indicated treatment or to keep scheduled appointments, or [an ability to return to gainful employment."] [**] (underlines ours) And Workers' Compensation Commission ATTENDING PHYSICIAN'S FIRST REPORT OF INJURY; Form No. 48-73, and ATTENDING PHYSICIAN'S SUPPLEMENTAL REPORT, Form No. 49-73, both require the attending physician to assess claimant's ability to work, whether regular or light (Form No. 48-73), and what type (Form No. 49-73), and report to the carrier or self-insured employer. Reg. 31-279-9(a) provides that "The employer or its insurance carrier will receive an early original report of injury, and such regular subsequent progress reports from the attending physician as may be reasonably required in each case." Form No. 49-73 is to be submitted every 21 days if treatment continues.
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The short answer to the question as to what obligation does an employer have to file a Form 36 after an employee has returned to work is that the law contemplates that the determination whether or not a Form 36 is required to be filed would always be made before an employee returns to work because the law presumes there would be a medical certification that claimant is able to return to work before the claimant does in fact return to work. Under those circumstances there would be no reason to address the question of what procedure should be followed when a claimant has in fact returned to work.
The first issue for consideration in the respondent's Reasons of Appeal is their contention that the Commissioner erred in denying their Motion to Correct. Sec. 31-301-4, Administrative Regulations, states the procedure to be followed to correct the finding. One requirement is that respondents file with their Motion to Correct, "such portions of the evidence as [t]he[y] deem[s] relevant and material to the corrections asked for, certified by the stenographer who took it." The respondents filed no evidence with their Motion to Correct, but did file a brief with this tribunal in which they specifically referenced the transcript and exhibits entered into the record before the Commissioner. We reviewed that transcript and those exhibits certified as part of this appeal. The respondents by not filing such portions of the evidence as they deemed relevant to the corrections they sought have failed to comply with Regulations Sec. 31-301-4. Perez v. U.S. Prolam, Inc., 1 Conn. Workers' Comp. Rev. Op. 74 (1981). It is not the responsibility of the Commissioner to cull out of the record the evidence the respondents rely upon to support the corrections they seek. That is the responsibility of counseling seeking corrections. Sorrentino v. Cersosimo, 103 Conn. 426 (1925).
Sec. 31-301-4. Correction of Finding. If the appellant desires to have the finding of the commissioner corrected he must, within two weeks after such finding has been filed, unless the time is extended for cause by the commissioner, file with the commissioner his motion for the correction of the finding and with it such portions of the evidence as he deems relevant and material to the corrections asked for, certified by the stenographer who took it, but if the appellant claims that substantially all the evidence is relevant and material to the corrections sought, he may file all of it so certified, indicating in his motion so far as possible the portion applicable to each correction sought. The commissioner shall forthwith, upon the filing of the motion and of the transcript of the evidence, give notice to the adverse party or parties.
The respondents have argued that they are entitled to a correction of the finding if it omits material facts that are admitted or undisputed. True v. Longchamps, 171 Conn. 476, 478 (1976); Glenn v. Stop Shop, Inc., 168 Conn. 413, 416 (1975). We agree.
The first two corrections sought by the respondents requested the Commissioner to add to his finding that "the claimant returned to work for a period of one month from May 14, 1980 through June 13, 1980" (Par. 1, Motion to Correct), and to correct Paragraph 7 of the Finding and Award "to reflect that the claimant was only partially disabled at sometime prior to May, 1980, and that compensation payments were terminated on May 14, 1980 when claimant returned to work." We have reviewed the transcript, and are satisfied that the facts sought in the corrections are not in dispute. (Record, Transcript July 2, 1982, Formal Hearing, Pg. 9). In addition, in argument before this tribunal the parties joined in stipulating that there were no payments for temporary total incapacity after May 14, 1980, and that claimant worked sporadically between May 14, 1980 and July 10, 1980. Our review of the record supports the parties stipulation, which is not consistent with Paragraphs 7 and 8 of the Finding and Award. Paragraph 7 states:
7. Claimant had surgery for the compensable injury on November 20, 1979, and was totally disabled for a time thereafter and temporary total benefits were paid continuing to July 9, 1980.
Paragraph 8 states:
8. Respondent did not file a Form 36 between the date of surgery, November 20, 1979 and July 9, 1980, the date when payments were terminated.
We find no support in the evidence for the Commissioner's Finding that "temporary total benefits were paid continuing to July 9, 1980." (Paragraph 7.), nor do we find any support in the record that any payments were terminated July 9, 1980. (Paragraph 8.) Furthermore, Paragraph 9 of the Finding and Award recites "Termination of payments without the filing and approval of a Form 36 was improper.", in apparent reference to the finding in Paragraph 8 that payments were terminated July 9, 1980, which is not supported in the evidence.
For the corrections sought by the respondents to be added to the Finding, they must not only be undisputed or admitted, they must also be material. True v. Longchamps, supra. In order to determine whether or not the facts sought to be added are material it is necessary to determine whether or not the facts are "essential to the case in hand". Sec. 31-301-3, Administrative Regulations. Sec. 31-301-3 states what the Commissioner's finding should contain. The finding is to include a statement of his conclusions and [the claims of law made by the parties.]fn__ (underline ours) Sec. 31-301-3, supra. It is from those claims of law made by the parties that we test the facts to determine whether or not they are material, i.e. essential to the case, and without which the case could not be supported.
Sec. 31-301-3. Finding. The finding of the commissioner should contain only the ultimate relevant and material facts essential to the case in hand and found by him, together with a statement of his conclusions and the claims of law made by the parties. It should not contain excerpts from evidence or merely evidential facts, nor the reasons for his conclusions. The opinions, beliefs, reasons and argument of the commissioner should be expressed in the memorandum of decision, if any be filed, so far as they may be helpful in the decision of the case.
For us to rule on the respondents' contention that the Commissioner erred in refusing to grant their Motion to Correct we need a Finding and Award that includes the claims of law made by the parties and the conclusions of the Commissioner related to those claims. At the Formal Hearing before the Commissioner July 2, 1982, and in the parties' briefs filed with the Commissioner the parties stated their claims of law which raise numerous issues concerning 31-296 and the Form 36 procedure. The Commissioner has not included those claims of law or any claims of law in his Finding and Award.
In examining the record in this matter we also reviewed the notice of the July 2, 1982 formal hearing which was in the District file submitted to us with the transcript and exhibits. The purpose of the formal hearing notice is to notify the parties of the issues to be litigated. In the blank space on the form after the language ". . . the above entitled matter will be heard with reference to the following questions. . . .", was typed "Injury: 4/16/79", and no other information. Such "notice" is clearly inadequate to allow any party to prepare his case or to develop a defense. The Formal Hearing Notice, Form No. 17-62 was prepared to implement C.G.S. 31-297(a) which provides "Sufficient notice of such hearing may be given to the parties in interest by a brief written statement in ordinary terms of the date, place and nature of the injury upon which the claim for compensation is based." The notice must spell out the issues to be litigated in order to meet the constitutional essentials of procedural due process of law. And although the issue of notice was not raised in this case, our Supreme Court has held it unconstitutional for a Compensation Commissioner to act on an aspect of a claim not expressly set out in the notice. Osterlund v. State, 129 Conn. 591 (1943).
We are also satisfied that once the Commissioner includes the claims of law made by the parties he will also have to make additional findings to support his conclusions related to those claims of law. After particular note of Sec. 31-301-8, Administrative Regulations, which details the function of this tribunal on appeal, see Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 173-4 (1974), we are of the opinion that the Commissioner's finding does not contain all the subordinate facts which are pertinent to the claim and the conclusions of the Commissioner therefrom. And, therefore, this tribunal is not in a position to decide whether the award was correct and just or not. McQuade v. Ashford, 130 Conn. 478, 482 (1944); Carlino v. Danbury Hospital, 1 Conn. Workers' Comp. Rev. Op. 119 (1981). Until the Finding and Award is in compliance with the Regulations and the interpretive case law, we are not able to determine the corrections sought by the respondents.
Sec. 31-301-8. Function of Compensation Review Division. Ordinarily, appeals are heard by the compensation review division upon the certified copy of the record filed by the commissioner. In such cases the division will not retry the facts or hear evidence. It considers no evidence other than that certified to it by the commissioner, and then for the limited purpose of determining whether the finding should be corrected, or whether there was any evidence to support in law the conclusion reached. It cannot review the conclusions of, the commissioner when these depend upon the weight of the evidence and the credibility of witnesses. Its power in the corrections of the finding of the commissioner is analogous to, and its method of correcting the finding similar to the power and method of the Supreme Court in correcting the findings of the trial court.
We have determined that in order for us to rule on the respondents' first reason of appeal that the Commissioner erred in denying their Motion to Correct, we must remand this case for an amended Finding and Award to include the claims of made by the parties, the Commissioner's conclusions therefrom, and any further additions to the Finding and Award as necessary to comply with this opinion.
This tribunal finds it unnecessary to discuss the respondents' second and third reasons of appeal inasmuch as a resolution of the first issue requires us to remand this matter to the Commissioner for an amended Finding and Award.
Commissioners Rhoda Loeb and Frank J. Verrilli concur in this opinion.