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Kelly v. City of Bridgeport

CASE NO. 3761 CRB-04-98-01

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 11, 1999

GARY B. KELLY

CLAIMANT-APPELLEE

v.

CITY OF BRIDGEPORT

EMPLOYER

RESPONDENT-APPELLANT

APPEARANCES:

The claimant appeared pro se at oral argument.

The respondent was represented by Frank May, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the January 12, 1998 Finding and Award Re: 31-284b of the Commissioner acting for the Fourth District was heard October 9, 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.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the January 12, 1998 Finding and Award Re: 31-284b of the Commissioner acting for the Fourth District. It argues on appeal that the trier erred by finding that the claimant was entitled to § 31-284b benefits even though he is no longer receiving weekly disability benefits under § 7-433c as a result of a 1991 myocardial infarction. We affirm the trial commissioner’s decision.

The trier found that the claimant sustained a compensable injury on March 6, 1991. At that time, he and his family were covered by a group health insurance plan that included dental, optical and life insurance. After his heart attack, the claimant received permanent partial disability benefits through March 1995. He accepted a disability retirement from the respondent dating back to his injury. The respondent continued to cover the claimant and his family with the same group health insurance benefits, valued at approximately $43,000. The claimant has been on disability retirement since leaving city employment, and was not working at the time of the formal hearings.

In October 1996, the claimant’s son had a dental appointment. At its conclusion, the claimant was informed that his group health insurance no longer covered his children. The claimant was forced to pay $700 out of his pocket. He inquired into the cancellation of his group health policy, and learned that all of his dental, optical and life insurance had been canceled retroactive to September 1, 1996, with no notice having been forwarded to him. Thereafter, he was given a COBRA election notice, which he did not exercise. The respondent continues to pay for the cost of semiannual doctor’s visits and drug prescriptions on behalf of the claimant’s § 7-433c claim.

The trial commissioner ruled that, although the claimant was not currently receiving indemnity benefits, the medical bills being paid by the city constituted compensation benefits. Thus, the claimant was receiving or eligible to receive compensation payments within the meaning of § 31-284b. The commissioner ordered the city to reinstate the claimant and his family to the group medical benefits that were in effect at the time of his injury, and ordered the respondent to reimburse the claimant for the out-of-pocket expenses that resulted from the policy’s improper cancellation. The respondent has appealed that decision.

At the time of the claimant’s injury, § 31-284b(a) provided as follows:

In order to maintain, as nearly as possible, the income of employees who suffer employment-related injuries, any employer, as defined in section 31-275, who provides accident and health insurance or life insurance coverage for any employee . . . shall provide to such employee equivalent insurance coverage . . . while the employee is eligible to receive or is receiving workers’ compensation payments pursuant to this chapter, or while the employee is receiving wages under a provision for sick leave payments for time lost due to an employment-related injury.

The respondent contends that the claimant is no longer receiving “compensation payments” within the meaning of this statute. It states that “[t]he ‘receipt’ of a compensation ‘payment’ connotes the transfer of money to the claimant from the provision or carrier. A ‘payment’ is something markedly different from the receipt of medical/surgical care. . . . Payments for medical/surgical care are obviously not ‘received’ by an employee, but rather by the medical service provider.” Brief, p. 7. The respondent attempts to delineate a clear distinction between “compensation payments” and “medical benefits” under the Workers’ Compensation Act.

We disagree that such a distinction is relevant to the definition of “compensation payments.” At the time of the claimant’s injury, § 31-293 stated that “[t]he word ‘compensation,’ as used in this section, shall be construed to include not only incapacity payments to an injured employee and payments to the dependents of a deceased employee, but also sums paid out for surgical, medical and hospital services to an injured employee . . . .” P.A. 91-32 repealed that version of § 31-293 as of July 1, 1991, substituted a new version in its place, and moved the definition of “compensation” to its present location at § 31-275(4), which contains the general definitions for Chapter 568. The new, expanded definition of “compensation” still includes medical and surgical aid, as well as “payments made under the provisions of section § 31-284b.”

We simply find no merit to the respondent’s contention that this definition does not apply to the instant case. Just as the legislature intended no change in the effect of the definition of “income” by moving it from § 31-275(14) to § 31-284b in P.A. 91-32; Luce v. United Technologies Corp., 247 Conn. 126, 137 (1998); there is no reason to believe that it intended to attach a new meaning to the existing language in the definition of “compensation.” Indeed, the Court itself has explained that P.A. 91-32 was intended to be a technical amendment, and that no substantive changes were intended to have occurred with that instrument. Id., 136; Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 393-94 (1993). Part of the reason behind P.A. 91-32 was to “bring[] into focus a new section of describing all the definitions that were utilized and sprinkled throughout the entire chapter.” Luce, supra, 136 (citation and internal quotation marks omitted). We could not ask for a clearer statement of legislative intent than that.

Moreover, we have held that treatment by medication constitutes a disability under § 7-433c for the purpose of triggering the statute of limitations under § 31-294c. Murach v. City of New Britain, 10 Conn. Workers’ Comp. Rev. Op. 89, 91, 1172 CRD-6-91-2 (April 20, 1992). If a claimant is required to file a Form 30C, he is certainly “eligible to receive workers’ compensation payments” within the meaning of § 31-284b, as an employer is required by the Workers’ Compensation Act to pay for the cost of drugs prescribed to remedy or control the effects of a compensable injury. See § 31-294d; Crocetto v. Lynn Development Corp., 223 Conn. 376, 381 (1992). We thus disagree with the respondent’s contention that the term “compensation payments” in § 31-284(b) refers solely to weekly disability or indemnity benefits.

The respondent also relies on a number of statements in the legislative history of § 31-284b to show that the statute was intended to be limited to periods when the employee is receiving weekly benefits under Chapter 568. These remarks are all general descriptions of § 31-284b as a statute that requires an employer to maintain a claimant’s health coverage while he is drawing workers’ compensation or sick pay. We do not believe that they evince a specific intent to limit § 31-284b in the manner advocated by the respondent.

As for the parade of fiscal horribles that would allegedly begin if a claimant was entitled to § 31-284b coverage as long as he continued to receive prescription drugs or visit his doctor regularly on account of a compensable injury, we make two observations. First, as the claimant points out in his insightful brief, the intent of § 31-284b is to maintain the income of employees who suffer compensable injuries. Not only is the medical care that the claimant continues to receive on account of his 1991 myocardial infarction essential to his well-being; it is also true that an individual such as the claimant would be hard-pressed to obtain the same insurance that he had before he was injured, on account of his increased risk factor for a second heart attack. There is no reason to presume that the legislative concern for such individuals ends at the moment they return to work, or cease working for the employer in whose employ they were injured.

Second, § 7-433b(b) imposes a ceiling on benefits that prevents a former police officer who is collecting disability and retirement benefits under § 7-433c from receiving more compensation than an active member of the department who holds the same position the claimant did at the time of his retirement. Carriero v. Naugatuck, 243 Conn. 747, 750 (1998); see also O’Neill v. Danbury, 3510 CRB-7-97-1 (March 31, 1998). There is no risk, therefore, that a claimant who steps down on account of a compensable injury will draw a bigger paycheck from retirement than he did during his employment. The respondent’s concern regarding a “potential for abuse” presumes that claimants are willing to falsify continuing symptoms in order to keep their § 31-284b benefits, and that doctors are indifferent about prescribing medication to patients who do not need it. This board cannot base its legal interpretation of remedial legislation such as the Workers’ Compensation Act on such cynical assumptions.

We thus affirm the trial commissioner’s decision.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

Workers’ Compensation Commission

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