CASE NO. 3646 CRB-03-97-07
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 28, 1998
CITY OF MILFORD
AON RISK SERVICES OF CONN.
The claimant was represented by Donald C. Cousins, Esq., and Albert Desrosier, Esq., Cousins & Johnson, 2563 Main Street, Stratford, CT 06497.
The respondents were represented by Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.
This Petition for Review from the July 17, 1997 Denial of Motion to Reopen by the Commissioner acting for the Third District was heard March 27, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the July 17, 1997 Denial of Motion to Reopen by the Commissioner acting for the Third District. He argues on appeal that the trial commissioner erred by ruling that he was not entitled to reopen a 1985 Finding and Award under which he received § 7-433c benefits in order to proceed under Chapter 568. We affirm the trial commissioner’s decision.
There appears to be little dispute about the facts surrounding the claimant’s injury. He had been employed as a firefighter by the city of Milford on the evening of January 2, 1983, when two house fires broke out. The claimant spent the rest of the night and the next morning fighting those fires, which involved heavy physical exertion. The claimant collapsed in the street on the morning of January 3, 1983. He was taken to the emergency room, where it was discovered that he had suffered a myocardial infarction. The claimant has not since worked as a firefighter.
The trial commissioner took administrative notice of a Form 30C dated September 9, 1983 that was timely filed by the claimant under § 31-294. The notice simply states that the claimant suffered a heart attack arising out of and in the course of his employment on January 2, 1983. Claimant’s Exhibit G. The claimant was not represented by counsel at that time. The claimant and counsel for the respondent city of Milford entered into a signed agreement on October 19, 1993 which stated that the claimant was entitled to receive benefits under § 7-433c C.G.S. Respondent’s Exhibit 2. No mention of any other benefits was made. Commissioner Rhoda Loeb issued a Finding and Award on March 25, 1985 that found the claimant to be entitled to § 7-433c benefits, including 195 weeks of compensation for a 25% permanent partial impairment of the whole man, subject to the limitations of § 7-433b.1 Both parties signed the Finding and Award in agreement that it should be entered.
For 195 weeks, the respondent accordingly paid the claimant the difference between his pension amount and an amount equal to 100% of the weekly compensation paid to members of the fire department in the same position that the claimant held at the time of his retirement in January 1984. See Hyatt v. City of Milford, 26 Conn. App. 194, 196-97 (1991). The difference came to $24.88 per week, or a total of $4,851.60 for the 195-week period, which expired on October 21, 1987. Id., 197. The claimant subsequently retained counsel, and filed an action in Superior Court claiming that the respondent had deprived him of $58,714.40. The respondent city successfully moved to dismiss that action based on the claimant’s failure to exhaust his administrative remedies before this Commission. That decision was affirmed by both the Appellate and Supreme Courts. Hyatt, supra, aff’d, 224 Conn. 441 (1993).
Subsequent to the Supreme Court’s dismissal of the claimant’s appeal, the claimant filed with this Commission a motion to reopen the Finding and Award of March 25, 1985. He requested a formal hearing to determine if he was entitled to benefits under Chapter 568 for his work-related heart attack. The respondent AON Risk Management argued that the claimant had already elected to receive benefits under § 7-433c, and that he should not now be allowed to reopen the award by claiming he made a mistake. The trial commissioner agreed with the respondents’ argument, and denied the motion to reopen the 1985 Finding and Award. The claimant has appealed that decision.
Our Supreme Court has discussed the interrelationship of the Workers’ Compensation Act (“Act”) and § 7-433c in previous cases. Whereas the Act was passed to provide compensation for any injury (including heart disease or hypertension) arising out of and in the course of employment without regard to fault, § 7-433c was enacted to provide “special compensation” to qualifying policemen and firemen who die or become disabled as a result of hypertension or heart disease. Collins v. West Haven, 210 Conn. 423, 425-27 (1989); Bakelaar v. West Haven, 193 Conn. 59, 67 (1984). Under Chapter 568, the employee has the burden of proving that his injury arose out of and in the course of his employment. Under § 7-433c, the claimant need only show that he successfully passed a medical examination which failed to reveal any evidence of hypertension or heart disease at the time he entered into his employment. Collins, supra, 426-27.
A claimant is not required to make an election between the two statutes at the time he files his claim. As both § 7-433c and workers’ compensation claims utilize the procedures outlined in the Act, including the notice provision of § 31-294c, it has been held that the filing of a Form 30C notice of claim serves to notify the employer of both a potential workers’ compensation claim and a § 7-433c claim simultaneously, assuming that the elements of § 31-294c have been satisfied. Id., 429-31; DeMello v. Cheshire, 3633 CRB-8-97-6 (decided Aug. 26, 1998); Tanner v. Wilton, 3197 CRB-7-95 11 (Feb. 5, 1997). There is no real dispute that the notice filed in the instant case states a claim under either Chapter 568 or § 7-433c, as it is substantially similar to the notice provided by the claimant in the Collins case. The issue is, did the claimant at some point actually or constructively elect to pursue benefits under § 7-433c, thereby preventing him from later raising a Chapter 568 claim for the same injury? The key difference between the two statutes from claimant’s point of view is the cap in § 7-433b(b), which prevented him from collecting the full amount of his specific indemnity award. The Supreme Court has discussed the express applicability of this cap to the compensation provided by § 31-308 when awarded in a § 7-433c case. Felia v. Westport, 214 Conn. 181, 187-88 (1990).
Language in Collins, supra, and Bakelaar, supra, suggests that a claimant is indeed “electing” recovery under one of the statutes when he chooses to receive benefits under either the Act or § 7-433c. Collins, supra, 427; Bakelaar, supra, 66-67. In both of those cases, however, one of the respondents was attempting to force the claimant to proceed under the Act instead of § 7-433c, and the Court asserted that the choice as to how to proceed belonged to the claimant. We are unaware of any cases where a claimant has either been prohibited from recharacterizing his claim or permitted to proceed under the Act after first seeking benefits under § 7-433c, or vice-versa.
The claimant cites language from Suarez v. Dickmont Plastics Corp., 229 Conn. 99 (1994), in which the Court ruled that a claimant could bring a civil action against his employer for damages despite already having collected workers’ compensation for the same injury where the claimant alleged that the employer had required him to engage in an activity from which injury was substantially certain to follow. The Court stated that the principle of the Act’s exclusivity would not be eroded by allowing a plaintiff to allege an intentional tort. “Although an injured employee’s remedies provided by the act are exclusive and cannot be supplemented with common law damages, there is no provision in the act that requires the injured employee to make an election between even mutually exclusive remedies.” Id., 115.
The Suarez court then went on to explain that the doctrine of election has a sound basis insofar as it is designed to prevent double redress for the same injury, but can also serve to unjustly destroy rights under compensation acts. Id., 116. “Work[ers’] compensation is above all a security system; a strict election doctrine transforms it into a grandiose sort of double-or-nothing gamble. .. . The stricken workman is in no mood for this kind of play, and should not be maneuvered into the necessity for gambling with his rights, under the guise of enforcing a supposed penalty against the employer.” Id., 117, quoting 2A A. Larson, Workmen’s Compensation (1990), § 67.31, p. 12-158. The Court noted that double compensation would be avoided by reimbursing the employer for benefits already paid by way of a setoff. Suarez, supra.
The problem with applying that reasoning to the instant case is that the Court in Suarez was discussing an intentional tort on the part of the employer, which has been established as a narrow exception to § 31-284’s bar against common-law actions by employees against their employers for work-related injuries. See Jett v. Dunlap, 179 Conn. 215 (1979). The inapplicability of the Act to the facts in Suarez provided a cogent reason for the Court’s refusal to recognize the claimant’s receipt of workers’ compensation benefits as an election to forego a common-law suit, especially in light of the Court’s discussion of the de facto protection for culpable employers that would ensue if an election of remedies doctrine was imposed. See Suarez, supra, 99.
Here, however, the claimant is alleging that his injury falls within the scope of the Act. By proceeding under § 7-433c rather than satisfying the requirement of Chapter 568 that a causal connection between injury and employment be proven, the claimant simply selected an alternate, less burdensome means of collecting the benefits provided in § 31-308, which method happens to involve the use of a statutory benefit cap not implicated in a standard workers’ compensation claim. The application of an election of remedies doctrine to § 7-433c and Chapter 568 would be accompanied by neither the public policy concerns nor the potential deprivation of civil and punitive damages against the employer that would have been associated with the application of such a doctrine in Suarez. The same benefits are at stake under either § 7-433c or the Act, with the same procedure being used to claim and collect such compensation. There is no risk that a claimant will choose a small but definite amount of compensation over a larger but more uncertain recovery of civil damages that would take much longer to realize, a la Suarez.
The application of an election doctrine to the instant claim, meanwhile, would avert a different sort of problem: the holding open of otherwise settled claims for an indefinite period of time. As it is in other areas of the law, the finality of decisions is an important concern in workers’ compensation. See Fassett v. F. Castellucci & Sons, 15 Conn. Workers’ Comp. Rev. Op. 83, 84, 2150 CRB-3-94-9 (Dec. 7, 1995). “It has long been accepted that a system of laws upon which individuals, governments and organizations rely to resolve disputes is dependent upon according finality to judicial decisions. . . . ‘Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest.’” Marone v. Waterbury, 244 Conn. 1, 11 (1998), quoting In re Juvenile Appeal (83-DE), 190 Conn. 310, 318 (1983). “Principles of finality are equally applicable to administrative decisions, such as workers’ compensation awards, that are appealable to the Superior Court. Both employers and their injured employees must be able to depend on the finality of administrative decisions and the appeals taken therefrom in order to regulate their future behavior.” Marone, supra, 12-13.
Applying the doctrine of election of remedies to the claimant’s choice to pursue a § 7-433c claim would clearly serve the interests discussed in Marone, and would be consistent with the implications of Bakelaar, supra, and Collins, supra. Section 31-315 already provides a means of modifying an award of compensation in cases of changed incapacity, changed conditions of fact, fraud, duress, accident, or mutual mistake of fact. Marone, supra, 16-17. The legislature has declared that these are the situations where the reopening of a workers’ compensation decision are most appropriate. By holding that a § 7-433c award does not preclude a subsequent attempt to proceed under Chapter 568 for the same injury, we would be creating a new and unilateral right on the part of claimants to reopen cases that their employers reasonably thought settled. We decline to establish such a right. Instead, we hold that the claimant’s agreement to receive benefits under § 7-433c constituted an election of remedies, and precluded him from later proceeding under Chapter 568 for the same injury. Insofar as the claimant’s Motion to Correct sought to add findings regarding the circumstances of that injury and its compensability under the Act, those corrections were immaterial and were properly denied under Admin. Reg. § 31-301-4. See also Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).
As for the claimant’s Motion to Reopen the § 7-433c award, we can find no reason to question the trial commissioner’s decision that there was no mutual mistake or other basis for reopening the award under § 31-315. The only ground for reopening the award appears to be the pro se claimant’s failure to appreciate the effect that the cap under § 7-433b(b) would have on the amount of specific indemnity benefits he would receive. This situation is reminiscent of Courtright v. State of Connecticut/Connecticut Valley Hospital, 3573 CRB-6-97-4 (June 5, 1998), a case recently considered by this board. There, the claimant failed to anticipate the length of time she would be out of work, and sought to reopen her § 5-142(a) award to change it to a more lucrative § 31-307 total disability award. We upheld the trial commissioner’s denial of the motion to reopen that award, as the only reason the claimant could advance in support of her motion was that she would have collected more money in the long run under Chapter 568. This case is similar, and warrants an analogous deference to the trier’s discretion on review. We cannot say that, as a matter of law, the pro se claimant’s failure to anticipate the effect of his agreement required the trial commissioner to reopen the March 25, 1985 award.
Accordingly, the trial commissioner’s decision is affirmed.
Commissioner Donald H. Doyle, Jr., and Michael S. Miles concur.
1 Section 7-433b(b) provides that “[n]otwithstanding the provisions of any general statute, charter or special act to the contrary affecting the noncontributory or contributory retirement systems of any municipality of the state, or any special act providing for a police or firemen benefit fund or other retirement system, the cumulative payments, not including payments for medical care, for compensation and retirement or survivors benefits under section 7-433c shall be adjusted so that the total of such cumulative payments received by such member or his dependents or survivors shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his death or retirement. Nothing contained herein shall prevent any town, city or borough from paying money from its general fund to any such member or his dependents or survivors, provided the total of such cumulative payments shall not exceed said one hundred per cent of the weekly compensation.” BACK TO TEXT