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Herbert v. State of Connecticut/Department of Mental Health & Addiction Servs.-Cedarcrest

CASE NO. 3766 CRB-06-98-02

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 13, 1999

ADELAIDE HERBERT

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/DEPARTMENT OF MENTAL HEALTH & ADDICTION SERVS.—CEDARCREST

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Richard Stabnick, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondent was represented by Michael Belzer, Esq., Assistant Attorney General., 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the January 23, 1998 Finding and Award of the Commissioner acting for the Sixth District was heard January 8, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the January 23, 1998 Finding and Award of the Commissioner acting for the Sixth District. It argues on appeal that the trier erred by concluding that the claimant was entitled to cost-of-living adjustments (COLAs) retroactive to October 1, 1969. We affirm the trial commissioner’s decision.

The claimant was enrolled as a student at the St. Francis Hospital School of Nursing in 1956 when, as part of her student training, she was sent to the tuberculosis isolation ward at Cedarcrest Hospital in Newington. The following summer, she was diagnosed as suffering from pulmonary tuberculosis in the upper lobe of her right lung and was subsequently admitted as a patient at Cedarcrest. The Attorney General’s Office acknowledged in writing that she had contracted an occupational disease which was “approved as compensable under the provisions of Section 2131d of the 1955 Supplement to the Connecticut General Statutes.” Findings, ¶ 4.

The state Comptroller’s office then began paying the claimant $12.00 per week, the minimum rate under the provisions of § 2287c of the Workers’ Compensation Act as it existed on August 19, 1957, and informed her that they would cover the bills she incurred for necessary medical, surgical and hospital care. The claimant has been totally disabled since her diagnosis of tuberculosis. She has continued to receive $12.00 per week, with some periods of interruption, and without any COLAs to reflect the substantial changes in the cost of living over the last few decades. Her prescriptions have been paid by the state, but other medical bills have been paid by the claimant and/or her husband’s medical insurance carrier. Findings, ¶ 7.

The trial commissioner found that, at the time she was exposed to tuberculosis, the claimant had been working at the hospital full time, periodically interrupting her duties to attend training classes. Though her three-month stint at Cedarcrest during 1956 was part of her nursing school training, she was regularly paid wages for working shifts. The claimant, who testified concerning her duties and her medical condition, could not recall the amount of wages she received after being diagnosed with tuberculosis, and there was no other evidence introduced to establish those amounts.

Section 2131d, now codified at § 5-142(b), provides that each state employee who comes into contact with a communicable disease during the performance of her duties, and is found to be infected with that disease based on such exposure, is entitled to payment of all medical and hospital expenses by the state. Also, if incapacity results, “such employee shall be removed from the payroll the first day of incapacity and shall receive compensation at the rate of one-half the salary [s]he was receiving at the time of infection.” As noted, however, no evidence was introduced regarding the claimant’s wages, and there were no salary figures in the record on which to base compensation. Instead, the respondent accepted the injury’s compensability in writing, and proceeded to begin paying her twelve dollars per week.

The twelve-dollar-per-week figure appears to be derived not from § 2131d, but from § 2287c (now codified at § 31-307), which provided at the time of injury that compensation for total incapacity resulting from an injury compensable under the Workers’ Compensation Act “shall in no case be more than forty dollars or less than twelve dollars weekly.” The trier thus inferred that the state had accepted the claimant’s pulmonary tuberculosis as a compensable injury under the Act, which explained the use of the twelve-dollar figure. Accordingly, he ruled that the claimant was entitled to the payment of COLAs under § 31-307a(b) from October 1, 1969 forward. The respondents have appealed that decision.

A recent decision of this board, Courtright v. State of Connecticut/Connecticut Valley Hospital, 3573 CRB-6-97-4 (June 5, 1998), explains why the formula for COLAs under § 31-307a is incompatible with the compensation method used by § 5-142(a). Under the Workers’ Compensation Act, all benefits are limited by the maximum weekly compensation rate of § 31-309, and COLAs are applied to those benefits based upon the annual changes in that maximum weekly compensation rate. “Section § 5-142(a), on the other hand, does not implicate the maximum weekly wage prescribed by § 31-309 in any way. . . . [A]llowing 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.” Id. The same analysis applies to § 5-142(b). However, a state employee eligible for benefits under § 5-142(a) or (b) may also elect to receive total disability benefits under the Workers’ Compensation Act instead of § 5-142. Jones v. Mansfield Training School, 220 Conn. 721 (1992); Trinkley v. Ella Grasso Regional Center, 220 Conn. 739 (1992); Courtright, supra. By doing so, the employee would potentially be eligible for COLA increases, though she would forgo other advantages inherent to § 5-142(a) and (b).

The trier found that, in this case, the claimant did not make any kind of election to receive compensation under § 5-142(b) [again, § 2131d at the time of her infection]. Instead, the respondent explicitly accepted her case as compensable, and the claimant passively accepted the $12.00 weekly payments that the respondent sent her. This is borne out by the claimant’s testimony. See Claimant’s Exhibit B. No agreement was reached between the parties to specify under which statute the claimant was receiving benefits, and the trier reasonably concluded from the circumstances that the respondent was compensating her under the total disability provision of the Workers’ Compensation Act. Thus, she would be entitled to COLAs under § 31-307a.

The respondent argues that the 1957 letter from the Attorney General’s office was really an “extralegal document,” and that the state was paying the claimant $12.00 per week voluntarily, as the case was not truly compensable under the statute. This interpretation of the facts, though plausible, was certainly not inevitable. The claimant testified that she did work as an employee of the state, and did receive wages for some of her nursing work (albeit not her training at Cedarcrest). Claimant’s Exhibit B, p. 31-32. The respondent could have reasonably determined that the claimant’s tuberculosis arose out of and in the course of her employment with the state, and could have chosen to accept the condition as compensable. Despite the lack of evidence regarding wages in the record, it was not unreasonable for the trial commissioner to conclude that the respondent had accepted this case under § 2287c of the Workers’ Compensation Act, and that the claimant was entitled to COLAs. In fact, the compensability of this injury was not raised as an issue by the respondent either in their Motion to Correct or during the proceedings below, and it is inappropriate for the state to raise it for the first time here.

The trial commissioner’s decision is hereby affirmed. Interest is also awarded pursuant to § 31-301c(b), insofar as the commissioner’s award has remained unpaid.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

Workers’ Compensation Commission

Page last revised: April 8, 2005

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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