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Sansone & Sansone v. Town of Enfield

CASE NO. 3885 CRB-01-98-09

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 18, 1999

ESTATE OF JOSEPH SANSONE

JEANNIE SANSONE, Dependent Widow

CLAIMANT-APPELLEE

v.

TOWN OF ENFIELD

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Sean McHugh, Esq., 140 Washington Street, Middletown, CT 06457.

The respondent was represented by Saranne Murray, Esq., Shipman & Goodwin, L.L.P., One American Row, Hartford, CT 06103.

This Petition for Review from the August 20, 1998 Finding and Award of the Commissioner acting for the First District was heard April 30, 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

ANGELO L. dos SANTOS, COMMISSIONER. The respondent has petitioned for review from the August 20, 1998 Finding and Award of the Commissioner acting for the First District. It contends on appeal that the trier erred by ruling that the dependent widow of the decedent was entitled to health insurance coverage under § 31-284b as part of her compensation under § 31-306. We affirm the trial commissioner’s decision with respect to the primary question of law, but also remand for further proceedings.

The underlying facts in this case have been stipulated by the parties. The decedent, Joseph Sansone, was a member of the police department of the respondent Town of Enfield prior to July 7, 1986. He and his spouse were provided with health insurance pursuant to the collective bargaining agreement in effect for the town’s police officers. On July 7, 1986, the claimant suffered a fatal myocardial infarction. The respondent concluded that the decedent was entitled to benefits pursuant to § 7-433c, and recognized his wife, Jeannie Sansone (“claimant”), as a presumptive dependent under § 31-306(a)(1).1 However, the respondent declined to provide her with health insurance coverage, as it maintained that it had no obligation to do so under the law. The trial commissioner disagreed, ruling that the combination of §§ 31-284b, 31-306, 7-433b and 7-433c entitled the claimant to medical insurance coverage. The respondent has appealed that decision to this board, along with the denial of its Motion to Correct.

The question of law that is central to this action appears to be one of first impression: does the statutory compensation package for a qualifying § 31-306 dependent include entitlement to health insurance benefits under § 31-284b? We begin our analysis at the root of the issue, § 31-284b(a), which provides as follows:

In order to maintain, as nearly as possible, the income of employees who suffer employment-related injuries, any employer who provides accident and health insurance or life insurance coverage for any employee or makes payments or contributions at the regular hourly or weekly rate for full-time employees to an employee welfare plan, shall provide to the employee equivalent insurance coverage or welfare plan payments or contributions while the employee is eligible to receive or is receiving compensation 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. As used in this section, “income” means all forms of remuneration to an individual from his employment, including wages, accident and health insurance coverage, life insurance coverage and employee welfare plan contributions and “employee welfare plan” means any plan established or maintained for employees or their families or dependents, or for both, for medical, surgical or hospital care benefits.

This statute, which was enacted in 1982, implicates employees of the State of Connecticut and its various municipalities, though it has been declared unconstitutional as applied to private employers. Civardi v. Norwich, 231 Conn. 287, 298-99 n. 14 (1994), citing District of Columbia v. Greater Washington Board of Trade, 506 U.S. 125 (1992) (federal Employee Retirement Income Security Act preempts states from requiring private employers who provide health insurance for employees to provide equivalent coverage for injured employees eligible for workers’ compensation benefits). Thus, as an employee of the Town of Enfield, the decedent could have been a beneficiary of § 31-284b, along with his dependents. Tufaro v. Pepperidge Farm, Inc., 24 Conn. App. 234 (1991) (§ 31-284b applies to dependents’ benefits that are part of a worker’s income).

Procedurally, we must note that the decedent’s injury was compensated under § 7-433c, which is technically not part of the Workers’ Compensation Act. However, § 7-433c entitles a disabled or deceased policeman to receive compensation and medical care “in the same amount and the same manner as that provided under chapter 568.” Our courts have construed this language to mean that “the measurement of an employee’s economic benefits must be the same as the measure of damages for economic benefits provided to a disabled employee under chapter 568.” Felia v. Westport, 214 Conn. 181, 185 (1990). This requirement of equivalency entails that an employee’s compensation include fringe benefits, such as § 31-284b health and life insurance coverage, when appropriate. Deschnow v. Stamford, 214 Conn. 394, 398 (1990).

Unfortunately, this case concerns survivor’s benefits rather than the direct compensation of an injured, but still living, worker. In a similar vein to § 7-433c, § 7-433b also tracks chapter 568 by stating that the survivors of “any regular member of a paid police department whose death has been suffered in the line of duty shall be eligible to receive such survivor benefits as are provided for in the workers’ compensation act . . . .” Accordingly, the instant claimant is being compensated pursuant to § 31-306(b), which stated at the time of the decedent’s heart attack that “compensation shall be paid [to dependents] on account of death resulting from an accident arising out of and in the course of employment or from an occupational disease as follows.” That statute proceeds to list the benefits that qualifying dependents are entitled to receive, including burial expenses, a weekly compensation amount equal to two-thirds of the decedent’s average weekly earnings, and associated cost-of-living adjustments. See § 31-306(b)(1)-(2). It does not mention insurance coverage, however. In the respondent’s view, this silence imports that § 31-306 survivors are not entitled to § 31-284b benefits under the law.

This threshold legal question is purely a matter of statutory construction. Our goal as a reviewing body is to ascertain and effect the apparent intent of the legislature by looking at the language of the relevant statutes, the legislative history of these provisions, and the applicability of other legislation and common law principles. Doe v. Stamford, 241 Conn. 692, 697-98 (1997). In doing so, we stress that “[i]n appeals arising under workers’ compensation law, we must resolve statutory ambiguities or lacunae in a manner that will further the remedial purpose of the act.” Id., 698.

Under § 31-306(a) [as it existed in 1986], a widow such as the claimant is “conclusively presumed to be wholly dependent for support upon [the] deceased employee.” Section 31-306(b) then entitles her to “compensation” for the work-related fatality, to be paid in the manner prescribed by that subsection. Where practical, the meaning of a term such as “compensation” should remain consistent throughout the Workers’ Compensation Act. Luce v. United Technologies Corp., 247 Conn. 126, 137 (1998). Although at the time of the decedent’s heart attack, the term “compensation” (as defined in § 31-293) did not expressly include § 31-284b benefits, the term is now defined by § 31-275(4) to include all benefits mandated by the provisions of chapter 568, “including, but not limited to, . . . payments made under the provisions of section 31-284b . . . .” We recently explained that the legislature’s 1991 amendment of that definition was merely intended to clarify, and not change, the meaning of “compensation” under the Act. Kelly v. Bridgeport, 3761 CRB-4-98-1 (March 11, 1999).2

Since the early part of this century, § 31-306 and its statutory precursors have specifically demarcated a surviving dependent’s entitlement to burial expenses and a percentage of the average weekly earnings of the deceased at the time of injury. See, e.g., § 5349 C.G.S. (Rev. 1919). No other type of benefit grant has ever been expressly designated by that section, though additional references could have been made to other statutes that were subsequently enacted, such as § 31-284b. This constancy of language has not stopped our courts from authorizing the recovery of other types of benefits by the dependent survivors of deceased workers, however.

For example, permanent partial disability awards compensate the loss of or loss of use of a body part over a claimant’s lifetime. Morgan v. East Haven, 208 Conn. 576, 584-85 (1988); Bassett, supra, 307 (Haines, J., dissenting). They do not purport to mimic dependent death benefits by replacing “wages which the employee can no longer earn, and in which those who were dependent upon him for support had an interest.” Ancona v. Norwalk, 217 Conn. 50, 55 (1991). Nevertheless, our courts have allowed dependents to succeed to a deceased employee’s right to the unmatured portion of a specific indemnity award by relying on the general principle that workers’ compensation laws are meant to benefit the dependents of injured employees as well as the workers themselves. Cappellino v. Cheshire, 226 Conn. 569, 575 (1993); see also Bassett v. Stratford Lumber Co., 105 Conn. 297, 304-305 (1926) (later distinguished by McCurdy v. State, 227 Conn. 261 (1993)). In July 1993, the legislature affixed survivors’ rights to such compensation by passing P.A. 93-228, but our courts had already inferred that the humanitarian policy behind the Act favored an expansive interpretation of the scope of benefits obtainable by the survivors of a deceased worker. That very same policy governs our decision here.

The legislature’s omission of any reference to § 31-284b in § 31-306 is not the only feature of the statutory framework relevant to this issue. The most important factor is the intent behind § 31-284b itself: “to maintain, as nearly as possible, the income of employees who suffer employment-related injuries.” “Income” includes health insurance benefits, of course, and the purpose of the Act is to provide for both the employee and his dependents. Tufaro, supra, 239. In order to keep these dependents in the same financial position that they were when the decedent was still living, their “compensation” would necessarily have to include a maintenance of health and life insurance benefits under § 31-284b. It would be inconsistent with the benevolent spirit of the Act to hold that a dependent spouse whose husband survived his compensable injury would normally be entitled to a continuation of her insurance coverage under § 31-284b, but that a dependent widow would not qualify for such compensation even though she is eligible for other “economic loss” benefits under chapter 568. We thus hold that the ambiguous interplay of § 31-284b and § 31-306 should be construed to allow the claimant to receive accident, life and health insurance coverage as part of her survivor’s benefits.

The respondent also contends that, even if a surviving dependent is ultimately eligible to receive § 31-284b benefits, the trial commissioner erred by ruling that the claimant was entitled to such insurance coverage in this specific case. According to the respondent, the trier agreed that he would restrict the proceedings below to the threshold question of law, and would reserve for further proceedings the question of this particular claimant’s entitlement to § 31-284b benefits.

The transcript details the trial commissioner’s observation that the parties submitted this case for decision “by way of a Stipulation as to Procedure filed today, dated February 11, 1998, and a Stipulation of Facts of even date.” February 11, 1998 Transcript, p. 4. Both counselors agreed that those documents were self-explanatory, and their contents were not discussed on the record. The trier then commended the parties for “bringing this formal hearing, the evidentiary part of it, to conclusion by submission of the Stipulation of Facts today.” Id., 5. The procedural stipulation itself states that the proceedings “shall be bifurcated,” and that the trier shall first decide whether § 31-284b requires an employer to provide health insurance to a presumptive dependent who is receiving benefits under § 31-306. It then states that, in the event the commissioner rules in the affirmative on the threshold question, the respondent may appeal. If, upon the exhaustion of all appeal rights, the answer to the threshold question remains “yes,” the parties may then present additional evidence and argument concerning whether the specific facts of this case entitle the claimant to health insurance coverage. Nevertheless, once the trier decided the threshold legal question, he continued on, ruling (based on the stipulated facts) that the claimant was entitled to medical insurance under § 31-284b.

The parties apparently contemplated that, without addressing the specific facts of this case, the commissioner would issue an order regarding the general entitlement of a dependent widow to health insurance coverage, which would then be appealable. A workers’ compensation commissioner does not have the authority to make such a ruling, however. Like a judge of the Superior Court, a commissioner can only issue an award if there is a case or controversy pending before him. A hypothetical set of facts cannot be presumed in order to facilitate the resolution of a disputed legal issue via what would amount to an advisory opinion. See Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793 (1999)(Supreme Court does not decide constitutionality of statutes outside a specific factual framework).

The commissioner implicitly recognized this limitation on judicial power when he commended the parties for concluding the evidentiary portion of the case at the formal hearing. By her subsequent silence, it does not appear that respondent’s counsel apprehended the full significance of the trier’s comment. Transcript, supra, 5. The trial commissioner could not have acted in precise accord with the “Stipulation As To Procedure” without transgressing his own statutory decisionmaking authority under Chapter 568. Unfortunately, he had expressly consented to do so, as he probably did not expect the parties to set forth an invalid procedure in their stipulation. Meanwhile, in reliance on that procedural agenda, the respondent refrained from introducing evidence it had wished to offer regarding the claimant’s entitlement to § 31-284 benefits.

Though partly due to deficiencies in its own stipulation, the respondent seems to have been misled into believing that the proceedings had been successfully bifurcated, thus depriving it of a meaningful opportunity to introduce evidence in opposition to the claimant’s claim. Casertano v. Shelton, 3329 CRB-4-96-4 (Sept. 16, 1997); Allingham v. Burns International Security, 14 Conn. Workers’ Comp. Rev. Op. 333, 334-35, 1977 CRB-1-94-2 (Sept. 20, 1995). “A party must be aware that a certain element of a case is at issue before it can be said that he has been accorded due process under our law.” Casertano, supra. Due process is a constitutional guarantee of paramount importance in any case, irrespective of mistake or fault. A cautious approach is best in such matters. Here, the most equitable solution is to remand the case to the trial commissioner, so that the parties may have an opportunity to introduce the additional evidence and testimony cited in the Stipulation As To Procedure. We hereby order that this be done.

Commissioner Stephen B. Delaney concurs.

JESSE M. FRANKL, CHAIRMAN, DISSENTING. There is no doubt that the humanitarian spirit behind the Workers’ Compensation Act must inform our interpretation of that statute. However, it does not entitle us to intentionally distort our reading of the Act in order to confer benefits that have not been granted by the legislature. The majority has engaged in such an exercise here, and I must express my disagreement.

The general definition of “compensation” as it existed in § 31-293 at the time of the decedent’s compensable injury may have included § 31-284b benefits; Kelly v. Bridgeport, 3761 CRB-4-98-1 (March 11, 1999); but the term “compensation” as used in § 31-306(b) most assuredly does not. By stating that “[c]ompensation shall be paid on account of death . . . as follows,” and then dictating the amount of burial expenses and the amount of weekly compensation that presumptive dependents are entitled to collect, the statute clearly restricts the “compensation” payable to such dependents to the items listed therein. Dependent survivors are entitled to “sixty-six and two-thirds per cent of the average weekly earnings of the deceased at the time of injury, but in no case more than the maximum weekly benefit rate set forth in section 31-309.” Benefits under § 31-284b are not included in an employee’s weekly salary for the purpose of calculating such compensation. Luce v. United Technologies Corp., 247 Conn. 126, 138 (1998); Pascarelli v. Moliterno Stone Sales, Inc., 44 Conn. App. 397, 400 (1997). There is no question that a claimant can be receiving the maximum compensation rate based on the dollar amount of his wages, and simultaneously receive insurance coverage under § 31-284b from his employer. It follows that a dependent’s compensation under § 31-306(b)(2), also being subject to that maximum, cannot include § 31-284b insurance benefits or their cash value. Some other basis of entitlement would be necessary.

Section 31-284b itself is expressly concerned with maintaining the income of employees who are eligible for workers’ compensation payments or who are being paid wages pursuant to a provision for sick leave payments due to a work-related injury. It does so by requiring that employers provide life and health insurance coverage equivalent to that which the employer provided the employee before the injury, including insurance coverage that an employer provided for a worker’s dependents. Tufaro v. Pepperidge Farm, Inc., 24 Conn. App. 234, 238 (1991). The legislative history of the provision (which is in essence identical to the former § 31-51h) demonstrates that the lawmakers wanted to ensure the continued financial stability of the families of employees who were out of work collecting workers’ compensation benefits, in the event that a family member should become seriously ill. 25 H. Proc., Pt. 18, 1982 Sess. p. 6058, remarks of Rep. Gelsi; Conn. Joint Standing Committee Hearings, Labor & Public Employees, Pt. 1, 1982 Sess., p. 100, 125, Remarks of Ms. Tianti and Ms. Bylan; see also Civardi v. Norwich, 231 Conn. 287, 296 (1994)(shift of language from § 31-51h to § 31-284b was not intended to alter statutory obligations). There is no indication, however, that the drafters of this law sought to make an employer permanently liable for the health, life and accident insurance of an employee’s dependents in the event of that employee’s demise. This responsibility would place a significant burden on this state and its municipalities, and its existence should not be confirmed solely by “reading in between the lines” of § 31-284b.

Under the Act, special death benefits for survivors are separately and exclusively prescribed by § 31-306. Though they are derivative from an injured employee’s claim, and their purpose is similar; Ancona v. Norwalk, 217 Conn. 50, 55 (1991); they are not identical to those benefits that a disabled worker receives during his lifetime. The legislature would have to positively pronounce that survivors were entitled to such compensation before it could be legitimately awarded under § 31-306. In the case of § 31-308(d)3, our legislature clarified that dependents are entitled to a deceased claimant’s permanent partial disability award. Notably, no similar action was taken regarding § 31-284(b) benefits, nor was a reference to that statute placed in § 31-306. See Civardi, supra, 298 (legislature failed to make substantive changes to § 31-349 to facilitate transferability of employer’s liability for § 31-284b benefits to Second Injury Fund, despite other amendments to that statute’s language). As there is no specific authority entitling survivors to health, accident and life insurance coverage under chapter 568, I believe the trial commissioner’s decision must be reversed.

Accordingly, I dissent from the majority’s opinion.

1 Initially, benefits were apportioned between the claimant and a second presumptive dependent, with the claimant receiving 60% of the aggregate benefits through February 10, 1990, and 90% of said benefits from that date through February 10, 1994. Since then, the claimant has been receiving 100% of the benefits paid by the respondent under § 31-306. BACK TO TEXT

2 In Kelly v. Bridgeport, 3761 CRB-4-98-1 (March 11, 1999), we stated, “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 [Supreme] Court [of Connecticut] has itself 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.” The Kelly decision has been appealed to the Appellate Court, and is pending before that body at the time of this writing. BACK TO TEXT

3 The majority’s analogy between the entitlement of dependents to a deceased employee’s specific indemnity award and their entitlement to continuing § 31-284b benefits is misleading. A permanent partial impairment award becomes a vested property right of a claimant the moment he reaches maximum medical improvement, and a right of survivorship is consequently inheritable by his dependents, and in their absence, his estate. Cappellino v. Cheshire, 226 Conn. 569 (1993); McCurdy v. State, 227 Conn. 261 (1993). Conversely, the right to continuing health insurance coverage under § 31-284b “while the employee is eligible to receive or is receiving compensation” lacks any of the earmarks of a liquidated damages award, as its duration is uncertain, and it cannot be commuted into a lump monetary sum. See McCurdy, supra, 269; Cappellino, supra, 575-76. BACK TO TEXT

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