Summary
In Squitieri v. Mariano Cardillo Sons, 3084 CRB-7-95-6 (January 6, 1997), we reversed the trial commissioner's award of permanent partial disability benefits on the basis that the request for the benefits was made prior to the claimant's attaining maximum medical improvement.
Summary of this case from Churchville v. Daly, NoOpinion
CASE NO. 3084 CRB-7-95-6
JANUARY 6, 1997
The claimant was represented by Brendan T. Canty, Esq.
The respondents were represented by Stephen Ekern, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the June 2, 1995 Finding and Award of the Commissioner acting for the Seventh District was heard May 24, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Robin L. Wilson.
OPINION
The respondents have petitioned for review from the June 2, 1995 Finding and Award of the Commissioner acting for the Seventh District. In that decision, the trial commissioner determined that the decedent's dependent widow (hereinafter referred to as the "claimant") was entitled to receive permanent partial disability benefits pursuant to § 31-308(d). The respondents contend on appeal that the trial commissioner improperly concluded that the decedent had made a request for permanent partial disability benefits prior to his death. We agree with the respondents, and reverse the trial commissioner's decision.
The trial commissioner found the following relevant facts. The decedent sustained a compensable injury to his head on July 27, 1981, which was the subject of an approved voluntary agreement. The decedent died of cancer, which was unrelated to his compensable injury, on November 25, 1991. Between the date of the injury and the date of his death, the respondents paid the decedent temporary total disability benefits pursuant to § 31-307. The decedent's treating physician, Dr. Elkind, in an April 3, 1990 report, stated that he was permanently totally disabled and that he sustained a forty percent permanent partial disability of the brain. On April 16, 1990, the decedent's attorney sent a letter to the respondent insurer's claims adjuster requesting to negotiate a settlement, along with a copy of the April 3, 1990 letter. Apparently, no settlement was ever reached. On November 27, 1991, two days after the decedent's death, Dr. Elkind wrote a letter to the decedent's attorney stating that as of November 1, 1991 the decedent remained totally disabled and reached maximum improvement with a twenty-five to thirty percent impairment of the brain.
The respondents argue on appeal that the trial commissioner improperly concluded that the decedent had requested permanent partial disability benefits prior to his death, citing McCurdy v. State, 227 Conn. 261 (1993). In McCurdy, the court considered the issue of whether a claimant's estate is entitled to an award of permanent partial disability benefits where the claimant had been totally disabled and had reached maximum medical improvement prior to his death, but no award for permanent partial disability benefits had been made. The court held that the decedent's entitlement to a permanent partial disability award occurred "when he requested such an award at the hearing before the commissioner." McCurdy, supra, at 269. "McCurdy explicitly requires a request for payment of permanent partial disability benefits to be made after a worker reaches maximum medical improvement, as such an award does not vest until that time." Burr v. Hoffman Water Treatment Co., 14 Conn. Workers' Comp. Rev. Op. 180, 183, 2125 CRB-8-94-8 (June 29, 1995).
In the instant case, the trial commissioner found that the decedent reached maximum medical improvement on November 1, 1991. The trial commissioner concluded that an earlier April 16, 1990 letter from the decedent's attorney's to the insurance company constituted a request for specific benefits under § 31-308(d). The trial commissioner's conclusion that an entitlement to permanent partial disability benefits vested prior to the decedent's death is in error where the request was made prior to the date of maximum medical improvement. See Burr, supra. Accordingly, the trial commissioner's award of permanent partial disability benefits must be reversed.
We note that the respondents contend that a letter from one party to another regarding possible settlement negotiations does not constitute a request for permanency as required under McCurdy, supra. We further note that the parties stipulated that "(n)o other claim or demand for specific benefits was made by the Claimant or any of his representatives prior to his death." (3/17/95 Transcript at p. 3-4). However, we need not reach this issue here.
The trial commissioner's decision is reversed.
Commissioners George Waldron and Robin L. Wilson concur.