State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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McEnerney v. U.S. Surgical Corporation

CASE NO. 4252 CRB-3-00-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 16, 2001

CAROL MCENERNEY

CLAIMANT-APPELLANT

v.

U.S. SURGICAL CORPORATION

EMPLOYER

and

SEDGWICK OF CONNECTICUT, INC.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Edward T. Dodd, Esq., and Jonathan H. Dodd, Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., Westgate Office Center, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The respondents were represented by Richard Lynch, Esq., Lynch, Traub, Keefe & Errante, 52 Trumbull Street, P. O. Box 1612, New Haven, CT 06506.

This Petition for Review from the June 7, 2000 Finding and Dismissal of the Commissioner acting for the Third District was heard May 18, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the June 7, 2000 Finding and Dismissal of the Commissioner acting for the Third District. She contends on appeal that the trier erred by ruling that, by moving to Florida, the claimant has relinquished any possible entitlement to benefits pursuant to § 31-308a. As the language of that statute indeed demands such a result, we must affirm the trial commissioner’s decision.

The claimant in this case suffered a compensable femur fracture on January 25, 1994. Post-surgically, she was released to light duty and received a 29.5% permanency rating of the right leg, entitling her to 45.72 weeks of benefits. She later received, by agreement, 30 weeks of benefits pursuant to § 31-308a, commencing on February 1, 1997. The parties have stipulated that the claimant would have received an additional 15.72 weeks of § 31-308a benefits had she not moved to Florida during the first week of September 1997. The claimant testified that her move to Florida was voluntary, and was primarily motivated by two factors: her son, who lived in Florida and had invited her to join him there, and her inability to tolerate the colder winters of Connecticut, which caused her various aches and pains. October 14, 1999 Transcript, pp. 9-11. The claimant still lives in Florida, where she works part-time. She no longer maintains a residence in Connecticut, and has no plans to return. Based upon these facts, the trier concluded that she did not meet the criteria for benefits pursuant to § 31-308a. He declined to award her anything further while she remained outside Connecticut or its vicinity, and was thus unable to work here. The claimant has appealed that decision to this board.

The statute central to the debate in this case, § 31-308a, provides as follows:

Sec. 31-308a. Additional benefits for partial permanent disability. (a) In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partial permanent disability equal to seventy-five per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury, after such wages have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, and the weekly amount which such employee will probably be able to earn thereafter, after such amount has been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age, but not more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury. The duration of such additional compensation shall be determined upon a similar basis by the commissioner, but in no event shall the duration of such additional compensation exceed the lesser of (1) the duration of the employee’s permanent partial disability benefits, or (2) five hundred twenty weeks. Additional benefits provided under this section shall be available only to employees who are willing and able to perform work in this state.
(b) Notwithstanding the provisions of subsection (a) of this section, additional benefits provided under this section shall be available only when the nature of the injury and its effect on the earning capacity of an employee warrant additional compensation.

The key sentence in the statute as it pertains here is the closing sentence of subsection (a), which restricts the receipt of § 31-308a benefits to employees who are willing and able to perform work in this state. Whether or not a claimant meets this criterion is a question of fact that the trial commissioner is generally required to answer. Katsigiannis v. Par Painting, Inc., 3639 CRB-4-97-7 (Aug. 7, 1998). The trier is also required to determine whether the nature of the injury and its effect on an employee’s earning capacity warrant additional compensation, assuming that the claimant otherwise qualifies for benefits under § 31-308a(a). Id.

The claimant first argues that she satisfied the criteria of § 31-308a by unsuccessfully looking for work within her restrictions for more than a year before moving to Florida, as she testified that she would not have moved to Florida had she been able to find a job here. Transcript, p. 10; Claimant’s Brief, p. 5. Assuming that the claimant’s testimony is accurate, our acceptance of this fact as true would not alleviate the impact of the “willing and able to perform work in this state” clause of § 31-308a(a). Entitlement for temporary total and partial disability benefits generally depends upon a claimant’s continuing inability to work and continuing wage loss; similarly, eligibility for § 31-308a benefits depends upon a claimant’s sustained satisfaction of the criteria in that statute. One of those criteria happens to be the in-state employment clause. We have no basis upon which to read that clause as only needing to be satisfied at the moment of inception of § 31-308a benefits, rather than for the entire duration of eligibility. Thus, if at some point during her period of eligibility for § 31-308a benefits, the claimant ceases to be available for work in the state of Connecticut, she is thereupon pre-empted from continuing to collect said benefits.

The claimant’s second argument is that she is nevertheless eligible for “additional benefits” pursuant to § 31-308a(b). According to the claimant, principles of statutory construction dictate that the only sensible interpretation of § 31-308a is that the statute allows the commissioner to establish an award based on the factors of subsection (a), and then to grant additional benefits as per subsection (b) if the nature of the injury and its effect on her earning capacity warrant additional compensation. See Giaimo v. New Haven, 257 Conn. 481, 495 (2001) (Court is reluctant to construe a statute so as to render any part thereof meaningless); Biasetti v. Stamford, 250 Conn. 65, 81 (1999) (no part of a legislative enactment should be treated as insignificant or unnecessary). We disagree. Rather than requiring the commissioner to “needlessly repeat a step in his analysis;” Claimant’s Brief, p. 7; the language of § 31-308a(b) implements another restriction on benefits: it instructs a commissioner to compensate claimants who technically meet the criteria in § 31-308a(a) only when the circumstances—i.e., the nature of the injury and its effect on the claimant’s earning capacity—actually warrant this form of additional compensation.

Ironically, the statutory interpretation suggested by the claimant would be the one more likely to render certain language meaningless, as the durational and in-state work provisions of § 31-308a(a) would be effectively rendered a nullity by construing § 31-308a(b) as a “manual override” provision of sorts. Our construction of § 31-308a(b) is also far more consistent with the overall philosophy behind Public Act No. 93-228, which enacted that subsection into law as part of a larger effort to reform the Workers’ Compensation Act by significantly reducing workers’ compensation costs for employers. See, e.g., Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793, 815 (1999) (legislative purpose of 1993 reforms discussed). Thus, we are unpersuaded by the claimant’s argument, and decline to hold that the commissioner erred by not reevaluating the claimant’s request for benefits separately under § 31-308a(b).

The claimant’s final argument on appeal is that § 31-308a violates the right of free interstate migration established by the United States Constitution, insofar as it serves no compelling state interest to restrict benefits to those who remain available to work in Connecticut. It is well-established that this board lacks jurisdiction to consider claims concerning the constitutionality of statutes. Giaimo, supra, 490 n.8; Fish v. Caldor, Inc., 3840 CRB-7-98-6 (May 11, 1999). Therefore, we have no authority to entertain the final question raised by the claimant on appeal.

The trial commissioner’s decision is hereby affirmed.

Commissioners George A. Waldron and Ernie R. Walker concur.

Workers’ Compensation Commission

Page last revised: December 21, 2004

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