Six v. Thomas O'Connor and Co.

• Decision Date: 23 January 1996
• Docket Number: No. 15218,15218
• Citation: 235 Conn. 790,669 A.2d 1214
• Court: Connecticut Supreme Court
• Parties: Connie SIX v. THOMAS O'CONNOR AND COMPANY, et al.

Page 1214

669 A.2d 1214

235 Conn. 790

Connie SIX v. THOMAS O'CONNOR AND COMPANY, et al.

No. 15218.

Supreme Court of Connecticut.

Argued Nov. 29, 1995.

Decided Jan. 23, 1996.

J. Sarah Posner, Assistant Attorney General, with whom, on the brief, were Richard Blumenthal, Attorney General, and William J. McCullough, Assistant Attorney General, for appellant (defendant second injury fund).

David A. Kelly, Glastonbury, for appellees (named defendant et al.).

Before PETERS, C.J., and BORDEN, BERDON, NORCOTT and KATZ, JJ.

KATZ, Judge.

The dispositive issue in this appeal is whether the named defendant, Thomas O'Connor and Company (defendant), timely notified the defendant Second Injury Fund (fund) of its intent to transfer its workers' compensation liability to the fund pursuant to General Statutes (Rev. to 1987) § 31-349(a). ¹ We conclude that the defendant failed to notify the fund timely and, therefore, could not transfer its liability to the fund.

The following facts are relevant to this appeal. On August 4, 1987, the plaintiff, Connie Six (claimant), suffered an injury to his left knee during the course of his employment with the defendant. Pursuant to General Statutes (Rev. to 1987) § 31-284(a), ² he filed a claim for workers' compensation with the defendant, which was granted, and received temporary total disability benefits from August 5, 1987, to April 23, 1990. Because the claimant had a preexisting impairment of his left knee, which, combined with the present injury, resulted in an injury "materially and substantially greater than that which would have resulted from the second injury alone"; General Statutes (Rev. to 1987) § 31-349(a); the defendant notified the fund on April 24, 1990, of its intention to transfer liability to it. ³ The fund rejected the transfer because this notice had not been timely. On April 24, 1990, on the basis of a January 5, 1988 decision by Michael McCarty, the claimant's doctor, to release the claimant to light duty work with limitations, the defendant also notified workers' compensation commissioner A. Paul Berte of its intention to discontinue payments retroactively as of January 5, 1988, by submitting a form 36 to Berte. ⁴ Subsequently, on May 21, 1990, McCarty set the claimant's maximum medical improvement at 40 percent, which converts to 95.2 weeks of permanent partial disability payments.

Following a formal hearing before workers' compensation commissioner Andrew P. Denuzze (commissioner) on October 5, 1992, to determine if notice to the fund had been timely, the commissioner adopted the defendant's proposed findings of fact and concluded that, because notice had been timely, liability would transfer to the fund. Thereafter, the commissioner granted the fund's motion to correct his previous ruling and, after altering some of his previous findings and adopting a new finding, reversed his prior decision and concluded that notice to the fund had not been timely. ⁵ Pursuant to General Statutes § 31-301(a), ⁶ the defendant appealed from this decision to the compensation review board (board), which reversed the commissioner's ruling. In reaching its conclusion, the board focused on the commissioner's finding six that "[t]he [c]laimant has acknowledged that he was not entitled to these temporary partial benefits paid from January 5, 1988 in an agreement dated 2/20/92 and signed by the claimant." From this finding, the board reasoned that, even though the claimant had received disability benefits after January 5, 1988, his acknowledgment that he was not entitled to them was in effect an acknowledgment that he was not disabled after that date. Furthermore, the board reasoned that the claimant's disability had not recommenced until May 21, 1990, the date of maximum medical improvement. Therefore, recognizing that the claimant had been disabled for twenty-one or twenty-two weeks between August 5, 1987, and January 5, 1988, the board reasoned that "if the weeks from January 5, 1988 to April 23, 1990, [the approximate date that notice was complete,] are subtracted, then [the] claimant would have only received 21 or 22 weeks of disability by April 23, 1990. ⁷ Notice by the end of the 22nd week would have complied with the then § 31-349 requirement that notice be completed by the 91st week, i.e., ninety days before the expiration of the 104th week."

The fund appealed from the board's decision to the Appellate Court pursuant to General Statutes § 31-301b, ⁸ and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). The parties agree that § 31-349 requires that notice of a transfer must be completed ninety days prior to the expiration of the first 104 weeks of disability, or in the ninety-first week of disability. See Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 392-94, 618 A.2d 1340 (1993) (in order to transfer liability to fund notice must be complete ninety days prior to expiration of 104 weeks of disability and not payment of benefits). The parties also agree that notice was complete on April 24, 1990. The fund, relying on findings twelve and thirteen; see footnote 5; argues that notice was not timely. According to the fund, the claimant was continuously disabled from August 5, 1987. Therefore, in the fund's view, the 104 weeks expired in August, 1989, and notice was due in May, 1989. In response, the defendant focuses on finding six; see footnote 5; to claim that the board was correct in concluding that notice was timely. According to the defendant, disability began on August 5, 1987, and expired on January 5, 1988. Thereafter, in the defendant's view, disability did not recommence until the determination of the claimant's maximum medical improvement on May 21, 1990, and because notice was not due until September, 1991, the notice on April 24, 1990, was, therefore, timely. The fund disagrees with the defendant's interpretation of finding six, but nonetheless responds that even after removing the period of time referenced in finding six, notice was still late. Finding six is based solely on an agreement between the defendant and the claimant that states that "[t]here would seem to be no entitlement to any disability benefits from 1-5-88 until 9-25-88." ⁹ Therefore, the fund argues that, by eliminating that time period, the deadline for notice was extended from May, 1989, to January, 1990. Consequently, the notice on April 24, 1990, was untimely. We agree with the fund.

"At the outset, we must determine the appropriate standard of review when a decision of a commissioner is appealed to the compensation review [board]. A decision of a commissioner granting or denying an award may be appealed to the [board] pursuant to General Statutes [Rev. to 1987] § 31-301(a), which provides in pertinent part: 'At any time within ten days after entry of such award by the commissioner ... either party may appeal therefrom to the [board].... Such appeal shall be heard by a panel of the [board].... The compensation review [board] shall hear the appeal on the record of the hearing before the commissioner, provided, if it is shown to the satisfaction of the [board] that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, the [board] may hear additional evidence or testimony. Upon the final determination of the appeal by the [board] ... it shall issue its decision, affirming, modifying or reversing the decision of the commissioner. The decision of the [board] shall include its findings and award and conclusions of law....'

"It is clear that under General Statutes § 31-301(a) and § 31-301-8 of the Regulations of Connecticut State Agencies ¹⁰ the review [board's] hearing of an appeal from the commissioner is not a de novo hearing of the facts. Although the review [board] may take additional material evidence, this is proper only if it is shown to its satisfaction that good reasons exist as to why the evidence was not presented to the commissioner. Otherwise, it is obliged to hear the appeal on the record and not 'retry the facts.' See Regs., Conn. State Agencies § 31-301-8. We have stated: '[T]he power and duty of determining the facts rests on the commissioner, the trier of facts. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457, 78 A.2d 339 (1951). The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Mathurin v. [City of ] Putnam, 136 Conn. 361, 366, 71 A.2d 599 (1950).' Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18, 411 A.2d 924 (1979); Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 145, 291 A.2d 743 (1972)....

" 'It matters not that the basic facts from which the [commissioner] draws this inference are undisputed rather than controverted. See Boehm v. Commissioner, 326 U.S. 287, 293 [66 S.Ct. 120, 124, 90 L.Ed. 78 (1945) ]. It is likewise immaterial that the facts permit the drawing of diverse inferences. The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court....' " (Emphasis in original.) Fair v. People's Savings Bank, 207 Conn. 535, 538-40, 542 A.2d 1118 (1988); accord Crochiere v. Board of Education, 227 Conn. 333, 346-47, 630 A.2d 1027 (1993); Hernandez v. Gerber Group, 222 Conn. 78, 81-82 n. 3, 608 A.2d 87 (1992).

Applying these principles to the facts of this case, we conclude that there is sufficient evidence in the record ¹¹ from which the commissioner could reasonably have concluded that notice had not been timely and that the board acted improperly in reversing the commissioner's decision. During the hearing, in response to the commissioner's question regarding the choice of dates in...