Karnane v. Saks Fifth Avenue

The claimant was not represented at oral argument. Notice sent to Lovejoy & Rimer, P.C., 65 East Avenue, P. O. Box 390, Norwalk, CT 06852-0390.

The respondents were represented by Joseph Passaretti, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

The Second Injury Fund was represented by Michelle Truglia, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120

This Petition for Review from the March 24, 2000 Memorandum of Decision of the Commissioner acting for the Seventh District was heard October 27, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The Second Injury Fund has petitioned for review from the March 24, 2000 Memorandum of Decision of the Commissioner acting for the Seventh District. In that decision, the trial commissioner concluded that the Fund was responsible for the administration of the claimant’s claim during the pendency of the Fund’s appeal from a decision ordering transfer pursuant to § 31-349. In support of its appeal, the Fund argues that § 31-349(b) provides that the employer or its insurer is responsible for furnishing compensation during the pendency of an appeal from a transfer order. We agree. The Fund further argues that the issue of the administration of the claimant’s claim during the pendency of the appeal was not a justiciable issue due to the fact that the claimant had not yet requested any further benefits.

Initially, we note that the Compensation Review Board has issued two decisions related to this matter. In Karnane v. Saks Fifth Avenue, 3918 CRB-7-98-10 (Jan. 7, 2000), the board affirmed the trial commissioner’s determination that the claimant was temporarily totally disabled from March 28, 1994 through September 11, 1997. In Karnane v. Saks Fifth Avenue, 3947 CRB-7-98-12 (Nov. 7, 2000), the board held that the trial commissioner erred by applying the notice provision of P.A. 95-277 because notice to the Fund was filed prior to July 1, 1995 (the effective date of the legislation). Additionally, the board agreed with the Fund’s argument on appeal that the trial commissioner erroneously relied upon the fact that the claimant was able to continue his employment as evidence that he was not disabled for purposes of the § 31-349 notice period. The board explained that under the court’s reasoning in Karutz v. Feinstein and Herman, P.C., 59 Conn. App. 565 (2000), the claimant was physically impaired, and thus disabled under § 31-349, from the date of his injury. Accordingly, the trial commissioner’s decision ordering transfer was reversed.

In the March 24, 2000 Memorandum of Decision, which is the subject of this appeal, the trial commissioner found the following relevant facts. The claimant suffered a compensable injury for which he received all benefits to date. Pursuant to a Finding and Award issued on October 19, 1998 [aff’d, Karnane v. Saks Fifth Avenue, 3918 CRB-7-98-10 (Jan. 7, 2000)], the respondent insurer paid temporary total disability benefits up to October 19, 1998. Thereafter, the respondent insurer continued payments which it designated as payments against the specific award for permanent partial disability. Neither the claimant nor his attorney knew that payments subsequent to October 19, 1998 were anything other than payments for temporary total disability. In 1999, when all payments stopped, the claimant requested an informal hearing regarding his temporary total disability status and to seek further surgical treatment of his shoulder and leg.

The trial commissioner further found that a Finding and Award was issued [on December 14, 1998, with a revised Finding issued on May 19, 1999] which found that the respondents filed timely notice to the Fund pursuant to § 31-349, and ordered transfer. The Fund appealed the § 31-349 transfer order. As explained above, the appeal was decided in Karnane v. Saks Fifth Avenue, 3947 CRB-7-98-12 (Nov. 7, 2000), which reversed the trial commissioner’s decision ordering transfer. We further note that the board’s decision was appealed by the respondents to the Appellate Court, A.C. # 21417, on November 27, 2000.

Additionally, in the March 24, 2000 Memorandum of Decision the trial commissioner addressed the issue of whether it was the Fund or the respondent insurer which was required to administer this claim during the appeal of the transfer issue. The trial commissioner concluded that § 31-301(f) did not apply, as there was no appeal from an “award” but rather the Fund had appealed a transfer order. The commissioner also considered Yablonski v. Danbury Hospital, 15 Conn. Workers’ Comp. Rev. Op. 166, 3107 CRB-7-95-7 (Feb. 13, 1996), which held that a commissioner’s order that the Fund pay compensation benefits pursuant to § 31-301(f) was not proper where there was no underlying order that the employer or its insurer pay the claimant any specified benefits. The commissioner reasoned as follows:

We agree with the trial commissioner’s determination that § 31-301(f) is not dispositive in this case because the appeal here was taken from a transfer order rather than from an award of benefits. Section 31-301(f) provides as follows:

Clearly, the language of § 31-301(f) applies only to appeals from awards of benefits, and thus does not apply in the instant case where the appeal was from an order of transfer rather than from an award of benefits. Rather, we find the applicable section to be § 31-349(b), which provides as follows:

We note that although some of the above-cited language was changed by P.A. 95-277, the words requiring the employer or its insurer to continue payment of compensation were not changed.1

During oral argument before this board, the parties discussed their interpretation of “finally decided” in § 31-349(b), although neither party has cited any cases regar0ng said interpretation. However, we find the court’s reasoning in Marone v. Waterbury, 244 Conn. 1 (1998) to be instructive. There, the court discussed in some depth the “principle of finality.” Id. at 11-13. The court concluded: “General Statutes § § 31-301a and 31-301b govern the finality of workers’ compensation awards, which become final when and if the parties fail to appeal within the statutory time period.” Id. at 13. We agree with the court’s reasoning, and conclude that the term “finally decided” in § 31-349(b) refers to a transfer order which has not been appealed within the statutory time period. In the instant case, the trial commissioner’s order of transfer was appealed to the board and decided in Karnane v. Saks Fifth Avenue, 3947 CRB-7-98-12 (Nov. 7, 2000), and thereafter was timely appealed by the respondents to the Appellate Court, A.C. # 21417, on November 27, 2000. Thus, the matter is still pending, and there as yet has been no final decision. See Marone, supra. Accordingly, pursuant to § 31-349(b), the respondents are responsible for furnishing all compensation due until the outcome is finally decided.

The trial commissioner’s decision is reversed.

Commissioners Robin L. Wilson and Ernie R. Walker concur.

1 Prior to P.A. 95-277, the relevant portion of § 31-349(b) stated: “If the custodian rejects the claim of the employer and its insurer, the question shall be submitted to the commissioner having jurisdiction, as promptly as possible, and the employer or carrier shall continue furnishing compensation until the outcome is finally decided.” BACK TO TEXT