CASE NO. 3573 CRB-06-97-04
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 5, 1998
STATE OF CONNECTICUT/CONNECTICUT VALLEY HOSPITAL
The claimant was represented by James L. Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.
The respondents were represented by Donna Hixon-Smith, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the April 1, 1997 Finding of the Commissioner acting for the Sixth District was heard December 19, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the April 1, 1997 Finding of the Commissioner acting for the Sixth District. She argues on appeal that the commissioner erred by denying the claimant’s request to reopen a 1975 voluntary agreement and by dismissing her claim for cost-of-living adjustments. We affirm the trial commissioner’s decision.
The claimant was injured during the course of her employment on December 25, 1974, while working at Connecticut Valley Hospital. She became totally disabled on January 2, 1975, pursuant to a voluntary agreement approved on January 15, 1975. She elected to receive salary benefits pursuant to § 5-142(a) C.G.S.1, and received her full salary under that statute through December 27, 1979. Afterward, she was removed from the state payroll and received one-half of her salary as prescribed by § 5-142(a). She was found to have reached maximum medical improvement on May 27, 1983, with a 50% permanent partial disability of her lumbar spine. A voluntary agreement was reached whereby the claimant agreed to receive 260 weeks of compensation at $120.44 per week through May 20, 1988. This agreement was subsequently approved. The claimant has also been receiving service-connected disability retirement benefits from the state since June 1, 1983.
Despite the claimant’s receipt of her permanent partial impairment award, the claimant contends that she has been totally disabled since May 27, 1983. She also argues that she should have received cost of living adjustments beginning on December 27, 1979 (the date she began receiving one-half of her salary), and that if said COLAs are inapplicable to § 5-142, she should be allowed to reopen the voluntary agreement and retroactively claim benefits under Chapter 568 instead of § 5-142. The trial commissioner did not accept any of these arguments. He took administrative notice of the approved voluntary agreements, and ruled that the claimant had properly elected to receive benefits under § 5-142(a) instead of § 31-307 in 1975. The trier found no cause to reopen the voluntary agreement pursuant to § 31-315, nor did he agree that § 5-142(a) includes COLAs as defined by § 31-307a. Thus, he denied the instant claims. The claimant has appealed that decision to this board.
First, we agree with the commissioner’s ruling that COLAs are not included in § 5-142(a). By its terms, § 31-307a affects the compensation rates of employees “entitled to receive compensation under section 31-307,” and adjusts their compensation rates annually based on changes in the maximum weekly compensation rate under § 31-309. See, e.g., Gil v. Courthouse One, 239 Conn. 676 (1997). A claimant who receives total disability benefits under § 31-307 or § 7-433c C.G.S. has her benefits calculated pursuant to § 31-307, utilizing the applicable maximum compensation rate under § 31-309. Her compensation rate may logically and meaningfully be adjusted based on the changes in that maximum rate from year to year, as § 31-307a expressly provides.
Section 5-142(a), on the other hand, does not implicate the maximum weekly wage prescribed by § 31-309 in any way. If a claimant elects to receive benefits pursuant to § 5-142(a), see Jones v. Mansfield Training School, 220 Conn. 721 (1992), she receives her full salary for 260 weeks irrespective of the maximum weekly wage. Afterward, she is entitled to receive fifty percent of that salary as long as she remains disabled. There is no provision limiting the amount a claimant may receive under § 5-142 to the maximum weekly compensation rate under § 31-309, and allowing subsequent changes in that maximum weekly wage to have an effect on the amount of benefits payable under § 5-142 would be random and arbitrary.
We liken this case to Trinkley v. Ella Grasso Regional Center, 220 Conn. 739 (1992), in which our Supreme Court ruled that a claimant could recover concurrent employment benefits under § 31-310 only if she elected to receive benefits under the Workers’ Compensation Act instead of § 5-142(a). Attempting to factor either concurrent employment benefits or COLAs into a claimant’s “full salary” or a set percentage of that full salary under § 5-142(a) would simply not make sense, and would be inconsistent with the definition of “full salary.” See Trinkley, supra, 748-49; Benoit v. State of Connecticut, 9 Conn. Workers’ Comp. Rev. Op. 58, 920 CRD-2-89-9 (Feb. 6, 1991). Both § 31-310 and § 31-307a are designed to work in conjunction with benefits calculated under the Workers’ Compensation Act. Those statutes may be implemented by a claimant only if she is receiving benefits that are themselves calculated pursuant to the provisions of the Act. Benefits paid pursuant to § 5-142 are of a different nature.
Next, we address the commissioner’s denial of the claimant’s request to reopen the 1975 voluntary agreement pursuant to § 31-315. In light of the discussion above, it would have indeed been necessary for the claimant to elect to receive benefits under § 31-307 instead of § 5-142(a) in order to be eligible for COLA adjustments. However, the claimant elected to proceed under § 5-142(a) pursuant to an approved voluntary agreement. Pursuant to § 31-296, that agreement has the same binding force as an award. It may only be modified under § 31-315 if the trial commissioner finds that the claimant’s incapacity or level of dependence has changed, or if changed conditions of fact have arisen which require an alteration of the agreement. It may also be modified in the event of fraud, accident or mistake. Marone v. Waterbury, 244 Conn. 1, 16-17 (1998); Hayden v. Wallace & Sons Mfg. Co., 100 Conn. 180, 186 (1923); Southard v. Southard Development, 13 Conn. Workers’ Comp. Rev. Op. 348, 351, 1891 CRB-4-93-11 (April 27, 1995). The decision as to whether or not to reopen an award or agreement lies within the commissioner’s discretion. Id., 350.
The trial commissioner found that the claimant did not present evidence to warrant a modification of the original agreement. The claimant makes reference to surgical procedures that she underwent subsequent to the signing of the voluntary agreements in this case, but does not explain why these procedures would require the trial commissioner to reopen the voluntary agreement. No findings were made regarding increased disability or changed conditions of fact, and the claimant did not request any such findings in her Motion to Correct. See Admin. Reg. § 31-301-4. Instead, it appears from the commissioner’s findings that the claimant has not worked since January 2, 1975, when the original voluntary agreement was signed, and that she took a disability retirement at the same time she received her specific indemnity award for 50% permanent partial disability of the low back. The only apparent reason for the motion to modify the award is that the claimant has been disabled for a longer period of time than she originally expected, and has come to realize that she would have collected more money in the long run had she proceeded under the Workers’ Compensation Act instead of § 5-142(a). We cannot say that the trial commissioner abused his discretion by refusing to allow the claimant to modify the voluntary agreements in this case.
As for the claimant’s assertion that she is entitled to total disability benefits beyond the date of maximum medical improvement as set by the 1983 voluntary agreement, we observe that the trial commissioner made no finding regarding that issue. He noted that Dr. Becker was of the opinion that the claimant had been totally disabled since 1983, and that she took a state disability retirement that year. However, as the respondent points out in its brief, it is unclear that a separate claim for total disability from either 1983 or 1988 onward has been raised by the claimant. The claimant did request an (alternative) finding that the “medical records submitted” establish total incapacity upon the expiration of specific indemnity (which correction was denied), but got no more specific than that. Admin. Reg. § 31-301-4 required the claimant to provide more specific information. We do not believe that a separate claim for total disability benefits beyond the expiration of the approved voluntary agreements was properly raised in this matter, and therefore do not find error in the trial commissioner’s failure to make a finding on that issue.
The trial commissioner’s decision is affirmed.
Commissioners James J. Metro concurs.
JOHN A. MASTROPIETRO, COMMISSIONER, CONCURRING. I agree with the majority’s analysis of the request to reopen the voluntary agreement. I also concur in the result reached by the majority regarding cost-of-living adjustments, because I do not believe that there is a practical way to apply the mathematical formula in § 31-307a to benefits awarded under § 5-142(a). The COLA provision in § 31-307a applies by its terms only to employees receiving compensation under § 31-307, and is designed specifically to be used in conjunction with the maximum weekly compensation rates that are promulgated under § 31-309. Because compensation rates under § 5-142(a) are neither based on nor subject to the maximum weekly wage caps of the Workers’ Compensation Act, applying § 31-307a to benefits being paid under § 5-142a would be an imperfect science, and would lead to irregular results. I thus reluctantly concur with the majority regarding the current unavailability of COLAs to the claimant, but only because § 31-307a provides an inadequate vehicle to handle this situation.
As a matter of both statutory interpretation and workers’ compensation policy, however, I would go on to say that § 5-142(a) should be interpreted to allow a claimant to receive the same salary adjustments and benefits that active employees are entitled to receive as long as that claimant remains disabled. It is self-evident that the legislature intended to reward individuals engaged in the high-risk state service jobs listed in § 5-142(a) by entitling them to full pay if they became incapacitated during the performance of their duties. Rather than giving such employees carte blanche to collect full salary indefinitely, however, the lawmakers limited the availability of full pay under § 5-142(a) to a 260-week period. Anyone choosing to receive benefits under § 5-142(a) rather than the Workers’ Compensation Act thus ran the risk that her disability would last longer than five years, and that she would only be entitled to compensation equaling half her regular salary for the remainder of her incapacity. That is the trade-off that a state employee makes by electing benefits under § 5-142(a).
During the first 260 weeks of benefits under § 5-142(a), a claimant is entitled to receive “the full salary which he was receiving at the time of injury subject to all salary benefits of active employees, including annual increments, and all salary adjustments, including salary deductions, required in the case of active employees.” Afterward, the claimant is removed from the payroll and “shall receive compensation at the rate of fifty per cent of the salary which he was receiving at the expiration of said two hundred sixty weeks.” Given that the legislature’s goal was clearly to reward state employees for accepting the risky duties of the jobs listed in § 5-142(a), it would be illogical to presume that lawmakers sought to penalize the most severely injured workers using the same statute. Thus, it would make little sense to freeze a disabled claimant’s compensation rate by failing to adjust her salary once 260 weeks of benefits have been paid.
By reading § 5-142(a) to allow the annual increments and salary benefits of active employees to be factored into the claimant’s compensation rate proportional to the percentage of full salary that a claimant is receiving, we would prevent the value of the claimant’s weekly compensation from continuously falling further and further behind the cost of living in cases of long-term disability. The legislature could not have intended claimants who elect benefits under § 5-142(a) and then find themselves unable to return to the work force to eventually become impoverished based on long-term changes in the cost of living. Section 31-307(a) prevents this from occurring in cases under Chapter 568, and a similar philosophy should be used in applying the language of § 5-142(a). Accordingly, I would hold that the claimant is entitled to fifty percent of her “full salary” under § 5-142(a), interpreting “full salary” to include the salary benefits and annual increments of active employees.
1 Section 5-142(a) states, in relevant part, that “[i]f any member of . . . any institution or facility of the department of mental health giving care and treatment to persons afflicted with a mental disorder or disease, or any institution for the care and treatment of persons afflicted with any mental defect . . . sustains any injury . . while attending or restraining an inmate of any such institution or as a result of being assaulted in the performance of his duty, the state shall pay all necessary medical and hospital expenses resulting from such injury. If total incapacity results from such injury, such person shall be removed from the active payroll the first day of incapacity, . . . and placed on an inactive payroll. He shall continue to receive the full salary which he was receiving at the time of injury subject to all salary benefits of active employees, including annual increments, and all salary adjustments, including salary deductions, required in the case of active employees, for a period of two hundred sixty weeks from the date of the beginning of such incapacity. Thereafter, such person shall be removed from the payroll and shall receive compensation at the rate of fifty per cent of the salary which he was receiving at the expiration of said two hundred sixty weeks so long as he remains so disabled. . . . All other provisions of the workers’ compensation law not inconsistent herewith, including the specific indemnities and provisions for hearing and appeal, shall be available to any such state employee . . . .” BACK TO TEXT