Point-Counterpoint: Claimant’s perspective
Post-Churchville: When does any credit against PPD begin?
By Donna Civitello
In Churchville v. Daly Mechanical Contractor et al., 299 Conn. 185 (2010), the Supreme Court put to rest most of the uncertainty in the law concerning posthumous payments of permanent partial disability benefits. It held that a worker receiving temporary total disability benefits at the time of death did not have to make an affirmative request before his death for a permanent partial disability award, in order for his surviving spouse to have a vested interest in that award after his death. In Churchville, the claimant’s decedent died from unrelated causes while receiving temporary total disability for a work-related back injury. He had previously been assessed for permanent partial disability, at which time the respondent filed a Form 36. During the dispute over whether the decedent continued to be totally disabled, his counsel sent a settlement proposal to the respondent with an option of paying the permanent partial disability and C.G.S. §308a benefits. That offer was not accepted. The commissioner denied the Form 36 at an informal hearing, and the decedent continued to receive total disability benefits until his death. A week after his death, his widow through counsel withdrew the objection to the Form 36 and claimed posthumous payment of the specific award. After a formal hearing the commissioner approved the Form 36 retroactive to the date of its filing, and ordered that payments made subsequent to the filing of the Form 36 be re-characterized as permanent partial disability payments, with the balance to be paid to the claimant’s estate. The CRB affirmed, but remanded the matter for a determination of whether the surviving spouse or the estate was entitled to the award.
The Supreme Court transferred the case to its docket and held that the surviving spouse was entitled to the specific award. The Court confirmed its clear precedents in Cappellino v. Town of Cheshire, 226 Conn. 569 (1993) and McCurdy v. State of Connecticut, 227 Conn. 261 (1993), holding that a claimant’s right to permanent partial disability benefits vests when he or she reaches maximum medical improvement, and that the attendant entitlement enjoyed by a surviving spouse or presumptive dependent vests at that time as well, and does not depend upon an affirmative request for payment of specific. Relying for the first time on C.G.S. §31-308(d), the Court also held that a formal award of specific benefits is not necessary prior to death.
Some respondents argue that a footnote in the McCurdy decision, supra, permits them to deduct temporary total disability payments made after vesting of the right to receive specific (that is, payments made after the date of MMI) from any posthumous award of permanency. The question of whether and to what extent a respondent may be entitled to a credit against a posthumous award for total disability benefits paid to a decedent during life was resolved in Cappellino. In Cappellino, the sole issue before the Court was whether the claimant widow was entitled to the full balance of permanent partial disability benefits which had been awarded to her husband prior to his death. Cappellino, supra, 226 Conn. at 569. The decedent became totally disabled while receiving his specific award, and was switched to total disability benefits until his non-work-related death. The respondent Fund argued that the posthumous award of unpaid specific should have been reduced by the amount of total disability benefits paid to the decedent while he was alive, which would have discharged entirely the obligation to pay the award. The trial commissioner awarded the full balance of the award, and the CRB and the Appellate Court affirmed. The Supreme Court upheld the decisions below and refused to allow any credit, stating “[w]e therefore reject the defendant’s argument that the payment of temporary total disability benefits automatically discharged its obligation under the voluntary agreement to pay permanent partial disability benefits.” Cappellino, supra, 226 Conn. at 577-78.
In Cappellino, the respondent paid part of a permanency award under a voluntary agreement before death. Less than a month following its decision in Cappellino, the Supreme Court considered a posthumous claim for specific where permanent partial disability had been medically assessed, but there was no voluntary agreement, and payment of the award had not begun prior to death. A footnote in McCurdy has since been cited for the erroneous proposition that respondents may take a credit against a posthumous specific award beginning at the date of maximum medical improvement. A look at the facts in McCurdy clearly shows that the Court was not abandoning its position in Cappellino. In McCurdy, the claimant’s decedent received temporary total disability benefits from the date of injury until his death from non-work-related cancer on December 24, 1987. On October 15, 1987, his physician assessed 70% impairment of the lumbar spine, and on October 20, 1987 issued a supplemental report stating that the decedent had reached maximum medical improvement. On December 15, 1987, the decedent requested payment of his permanent partial disability award. The commissioner refused the request on the ground that the claimant was still totally disabled. The widow and the estate brought claims that each was entitled to the entire 70% permanency. The trial commissioner held that neither the widow nor the estate was entitled to the specific award, and the CRB and the Appellate Court upheld that decision. The Supreme Court reversed, reiterating long-standing precedent that the trial commissioner did not have discretion to deny the decedent permanent partial disability benefits at the time he requested to be switched from total disability to specific benefits. Therefore, all benefits paid after the date of that request had to be re-characterized as permanent partial disability benefits paid against the outstanding amount owed for the 70% rating. The respondent thus received a “credit” against the posthumous permanent partial disability owed amounting to the aggregate of total disability benefits paid between the date the decedent requested the change and the date of his death. In footnote 9 of the decision, the Supreme Court explained that “[b]ecause the decedent became entitled to an award on December 15, 1987 (the date he requested a change to permanent partial disability status), only temporary total disability payments that were made to him between that date and the date of his death can be deducted from a permanent partial disability award.” McCurdy, supra, 227 Conn. at 269, n. 9 (parenthetical element added). Notably, the credit in McCurdy did not run from the date of maximum medical improvement, which was October 20, 1987, but rather from the date the decedent requested that he be paid permanent partial disability benefits, December 15, 1987.
The Court in Churchville followed Cappellino and McCurdy. It affirmed the trial commissioner’s order for a credit retroactive only to the date the Form 36 was approved at the claimant’s request, not the date of MMI. The rule of Churchville, Cappellino and McCurdy is thus that an affirmative request for payment of permanent partial disability benefits is not necessary for vesting of the right to the permanency benefits, but an affirmative request for payment of permanent partial disability benefits based on an evaluation of permanent impairment, or on a commissioner’s order for the termination of temporary total disability benefits, as a matter of right will start the running of the permanent partial disability benefits, and any claim for a credit. If a claimant stays on temporary total disability benefits until he dies, the full amount of the permanency award is payable.
It is not clear whether the CRB’s only decision since the Supreme Court decided Churchville will stand on appeal. In Syzmaszek v. City of Meriden, 5346 CRB-6-08-5 (Apr. 2, 2009), the claimant’s estate sought payment of 564 weeks of permanent partial disability benefits. The case was decided on a stipulation of facts, and certain facts are not apparent from the decision. The opinion reveals that the claimant’s decedent was paid a 15% rating for cardiac impairment, expiring in October 1986. In March 1990 he suffered a compensable stroke and received temporary total disability benefits until his death in May 2007. The decedent entered into a stipulation to date approved in January 2001, by which the respondent agreed to pay an additional 70% permanency, with the date of maximum medical improvement being November 24, 2000. The stipulation to date provided that payment of the permanency commenced on November 24, 2000. Despite the stipulation, the respondent continued to pay temporary total disability benefits until the date of death. The CRB upheld the trial commissioner’s denial of the estate’s claim. It is not clear from the decision whether the trial commissioner found that the claimant had requested, by entering into the voluntary agreement, a change to permanent partial disability benefits, thus triggering the respondent’s right to a credit. The CRB decision implies that a credit begins to run on the date of maximum medical improvement, which would be incorrect under the holdings in Churchville, Cappellino and McCurdy.
Editors’ note: Donna Civitello is a partner at Carter & Civitello in Woodbridge, Connecticut, and is an editor of Compensation Quarterly.