CASE NO. 4459 CRB-1-01-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
DECEMBER 27, 2002
TOWN OF ENFIELD
The claimant was represented by Karen Buffkin, Esq. and Gerald Devino, Esq., McEleney & McGrail, 363 Main Street, Hartford, CT 06106.
The respondent was represented by Gerry Stergio, Esq., Shipman & Goodwin, L.L.P., One Landmark Square, Stamford, CT 06901-2676.
These Petitions for Review from the October 22, 2001 Finding and Award of the Commissioner acting for the First District were heard May 31, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Jesse M. Frankl.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the October 22, 2001 Finding and Award of the Commissioner acting for the First District, while the respondent has petitioned for review from the November 14, 2001 denial of its Motion to Correct. The claimant contends on appeal that the trier incorrectly included his retirement pension benefits as earnings in calculating his benefit entitlement under § 31-308a C.G.S. The respondent, meanwhile, argues that the trier should also have offset the claimant’s Social Security benefits against his § 31-308a award. We find error on review with respect to the inclusion of the retirement pension benefits in the claimant’s earnings and with respect to the trier’s analysis regarding the § 7-433b(b) C.G.S. benefit cap, and reverse in part the decision of the trial commissioner.
The parties stipulated to the following facts, which the trier incorporated into his findings by reference. See Joint Exhibit 2. The claimant was born on October 27, 1932. He began working for the Town of Enfield as a police officer in 1961, and was employed in that capacity through October 31, 1992. He suffered a heart attack on or about October 5, 1990. From that date through October 5, 1992, he received compensation for temporary total disability under the Workers’ Compensation Act. Concurrent to that time period, the respondent also provided him with supplemental injury leave payments pursuant to a collective bargaining agreement. The combination of these two payments were equivalent to 100% of his regular pay. However, his contractual entitlement to supplemental injury leave payments expired on October 6, 1992.
On November 1, 1992, the claimant officially retired from his position as a police officer, and began receiving a normal retirement benefit of $531.34 per week under the respondent’s Municipal Retirement Plan for Police Officers. His heart condition was a factor in his decision to retire from the force. He reached maximum medical improvement with a 40% disability on January 29, 1993, whereupon the respondent began paying him an advance against § 31-308 C.G.S. specific benefits at a base rate of $421.10 per week. The claimant’s individual health insurance coverage has also been maintained by the employer.
In 1995, a commissioner ruled that the benefit cap in § 7-433b(b) was inapplicable to the claimant’s situation, reasoning that it only applied to disability-related retirements. Even though the claimant’s heart condition may have factored into his decision to retire, the trier found that he had nonetheless chosen a regular retirement, which allowed him to receive both his full retirement pay and specific indemnity benefits without reference to the limitations prescribed by § 7-433b(b). May 5, 1995 Finding and Award. Said permanent partial disability benefits were fully paid as of February 6, 1999. In anticipation of that event, he filed a claim for additional specific benefits under § 31-308a, which is the basis of the instant action.
The trial commissioner found that “the issue of the 40 percent permanent partial disability to the heart was litigated in front of Commissioner Amado Vargas and his Finding and Award of May 5, 1995 is considered by the undersigned to be the law of the case.” Findings, ¶ A. As the claimant was unable to continue working as a police officer due to his heart condition, he obtained a position working as a part-time Judicial Marshal in the Connecticut state court system. Based on the criteria in § 31-308a, the trier found him to be entitled to 156 weeks of discretionary benefits under that statute. He directed that said benefits be calculated by basing the compensation rate “on two-thirds of the difference between the earnings of an Enfield Police Officer during the applicable time of the Award and the amount Claimant earned as a Judicial Marshal and received in retirement/pension benefits from the Town of Enfield.” Findings, ¶ I(b).
The trier also ruled that the claimant was entitled to reasonable and necessary medical care, and specified that he should not be precluded from any such treatment because it may not be covered under his group policy. This point was included because of ¶ K, which states, “Whether the Claimant processes his bills through Group insurance or whether his bills are paid directly by the Town, the Respondent Town of Enfield shall afford the claimant full medical coverage as provided under Chapter 568.” The claimant has filed an appeal from that decision. The respondent, meanwhile, has appealed from the denial of its Motion to Correct, which requested that the trier include “any Social Security benefits received during the applicable time” in the calculation of the claimant’s current earnings for the purpose of § 31-308a.
The claimant raises two distinct arguments in support of his position that the trier erred by including his retirement benefits in the § 31-308a equation. One is based upon the language of § 31-308a itself, while the other challenges the trier’s authority to “reopen” the 1995 Finding and Award by allowing the § 7-433b(b) cap to apply to the 2001 award of § 31-308a benefits. We begin by addressing the latter argument. The 1995 award, having not been appealed by the respondent, is no doubt a final judgment. In Marone v. Waterbury, 244 Conn. 1 (1998), our Supreme Court explained that a decision that is final and no longer pending may not be modified absent explicit statutory authority, despite the subsequent issuance of a higher-court opinion that construes the controlling law differently. Id., 14. As § 31-315 C.G.S. does not authorize modifications of an award based on new interpretations of law, a “closed” workers’ compensation award may not be opened in order to retroactively implement such a change.
This Commission, of course, continues to retain jurisdiction over the claimant’s workers’ compensation claim in general, and currently has jurisdiction over the instant § 31-308a claim. The claimant essentially argues that, in deciding how to calculate his “earnings” for the purpose of that claim, the trier should have based his ruling on the earlier finding that deemed § 7-433b(b) inapplicable to the claimant’s non-disability retirement pension. Underlying this argument is the fact that the legal reasoning used in that finding has been overruled by Carriero v. Naugatuck, 243 Conn. 747 (1998), which held that § 7-433b(b) applies to cumulative payments of disability compensation and retirement pension where any portion of said payments has been awarded under § 7-433c. This topic may be approached in two ways.
If one emphasizes the distinction between the specific indemnity award and the § 31-308a award now on appeal, one might be inclined to view this matter as raising an issue of collateral estoppel (issue preclusion), which is “that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties on a different claim.” Lafayette v. General Dynamics Corp, 255 Conn. 762, 772 (2001)(internal citations and emphasis omitted). “When an issue of fact or law is actually litigated and determined by a valid and final judgment, the determination is conclusive in a subsequent action between the same parties, whether on the same or a different claim.” Saporoso v. Aetna Life & Casualty Co., 221 Conn. 356, 367 (1992)(collateral estoppel barred relitigation of issue of whether injury was causally related to employment), quoting Scott v. Scott, 190 Conn. 784, 787 (1983). The issue to be decided must be identical in both proceedings in order for the doctrine of collateral estoppel to apply. Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 297 (1991); Wight v. Southington, 43 Conn. App. 654, 659 (1996). Strictly speaking, the legal question of whether the § 7-433b(b) cap applies to the claimant’s retirement pension would appear to be the same in both actions, insofar as its answer might affect the analysis of entitlement under § 31-308(b) and § 31-308a. Thus, if applicable, the collateral estoppel doctrine would seem to support the claimant’s argument that the trier should have been bound by the finding in the 1995 decision.
Then again, if one focuses on the unique nature of a workers’ compensation action as a res over which this Commission exercises continuing jurisdiction throughout the life of the claim, one might gravitate toward the “law of the case” doctrine, which in this context would refer to the binding effect of a trial commissioner’s prior ruling in the same case. The “law of the case” doctrine is a relatively flexible principle that delineates “the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power. . . . A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge.” Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 293 (1999), quoting Breen v. Phelps, 186 Conn. 86, 99 (1982). Yet, where there is a compelling reason to disregard the “law of the case” doctrine, a court will do so. One such reason established by our caselaw is when our Supreme Court issues an opinion in an unrelated case that postdates a lower court’s original decision, and that is inconsistent with that lower court decision. Bowman, supra, 294. That describes the very situation we now face here. Thus, unlike the collateral estoppel doctrine, the “law of the case” analysis would tend to support the trier’s authority to reassess the applicability of the § 7-433b(b) cap to the subsequently-raised § 31-308a claim, which is a different cause of action from the earlier permanency claim.
Given the fact that the § 31-308a claim is a separate cause of action that requires this Commission to apply the applicable statutory law anew, we believe that the circumstances favor a “law of the case” analysis over an application of the doctrine of collateral estoppel. The now-settled facts surrounding the claimant’s injury and the nature of his retirement are not being reopened here; rather, the law as we currently understand it is being applied to that set of facts in light of a new claim. Though the trier indeed cited the “law of the case” doctrine in ¶ A of his October 22, 2001 Finding and Award, he did not apply it in the manner explained above. In our view, the correct approach would have been for the trier to assess the impact of Carriero, supra, on the still-pending § 31-308a claim, which would have resulted in a finding that the § 7-433b(b) cap indeed applies to the combination of the claimant’s pension and his § 31-308a benefit entitlement. Thus, we find error in that regard.
However, we do not stop there in our analysis of this appeal. We also find another instance of error in the trier’s decision, as we believe that a claimant’s “earnings” as per § 31-308a should not be construed to include a longevity-based retirement pension regardless of whether the underlying claim is capped by § 7-433b(b). Section 31-308a allows awards of compensation based upon “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 . . . and the weekly amount which such employee will probably be able to earn thereafter . . . 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 . . . .” We agree with the claimant’s argument that § 31-308a incorporates only what an injured worker will probably be able to earn in calculating a wage differential, as opposed to income that is unrelated to a claimant’s work capacity. The § 7-433b(b) cap would not be applicable prior to the calculation of that wage differential, and the resolution of the correct amount of the § 31-308a benefit.
As we noted not long ago in Iannarone v. State/Dept. of Mental Retardation, 4138 CRB-7-99-10 (June 15, 2001), and Rodrigues v. American National Can, 4043 CRB-5-99-4 (July 26, 2000), the definition of “earnings” in Black’s Law Dictionary, 5th Edition, encompasses “the gains of a person derived from his services or labor without the aid of capital; money or property gained or merited by labor, service, or the performance of something.” Therefore, when a factfinder assesses whether an income source should be included in the amount that a claimant is “able to earn,” he must decide whether the income in question reflects a work capacity on the part of the claimant. Iannarone, supra. With respect to a retirement pension, we have applied the following analysis. If a pension is being paid on account of disability due to a compensable injury, one presumes that the employee would not be receiving this pension from his employer had he not been injured. Thus, it is permissible for the trier to include that pension in a claimant’s “earnings” because it represents an effort to replenish lost wages due to disability. Id.
In contrast, a pension paid based upon a claimant’s years of service with an employer neither reflects the claimant’s earning capacity, nor does it constitute an attempt by an employer to compensate a claimant for his inability to continue earning wages due to an injury. Instead, it is payable pursuant to a separate contractual provision that is wholly unrelated to the amount a claimant is currently able to earn. Such longevity pensions are generally based upon the years of service that a retired employee has devoted to a particular employer, and they remain payable even if that individual decides to go out and get another job, regardless of how much it might pay. We do not believe that such a benefit should be characterized as part of a claimant’s earnings under § 31-308a. As the retirement pension received by the claimant in this case is not in any way attributable to disability from a work-related injury, we hold that the trial commissioner erred by ordering that those benefits be included in his earnings under § 31-308a.
The claimant’s other argument on appeal concerns the trier’s order permitting the respondent to fulfill its obligation to provide him with full medical coverage for heart-related care by either paying his bills directly, or by instructing him to process his bills through a group insurance policy provided by the employer, and then reimbursing him for any co-pay costs. According to the claimant, allowing the respondent to process his medical bills through its group medical insurance plan is contrary to law, as he has been forced to incur up-front, out-of-pocket expenses and later seek reimbursement from the town. The respondent protests, meanwhile, that the Act does not preclude the employer from processing heart and hypertension expenditures through its group medical insurance carrier. According to the town, such coverage is generally not provided by traditional workers’ compensation insurance policies, as § 7-433c claims are not technically workers’ compensation claims, and are excluded by many insurance contracts.
This phenomenon was discussed by our Supreme Court in Plainville v. Travelers Indemnity Co., 178 Conn. 664 (1979), where it was held that the workers’ compensation insurer for the town of Plainville was not liable to pay compensation on behalf of its policyholder with regard to a § 7-433b claim that had been filed by the widow of a deceased police officer. The insurance policy in question obligated the insurer to pay “all compensation and other benefits required of the insured by the workmen’s compensation law,” which term was contractually defined as “the workmen’s compensation law and any occupational disease law.” Id., 666. Because § 7-433c lacks any requirement that a heart ailment be causally connected to a claimant’s employment, the Court held that benefits paid by an employer under § 7-433c are not required by the “workmen’s compensation law” or an “occupational disease law.” Id., 673. Therefore, the insurer was not liable to cover that claim pursuant to its workers’ compensation insurance policy.
The respondent herein has chosen to self-insure its workers’ compensation liability under § 31-284 C.G.S., rather than purchasing any sort of an insurance policy from a stock or mutual company or an association licensed to take such risks in Connecticut. Though upon casual glance, this would appear to obviate the problem encountered by the employer-municipality in the Plainville case, an important underlying fact cannot be ignored. Under the binding precedent of Plainville, § 31-284’s mandate that an employer either “furnish . . . satisfactory proof of his solvency and financial ability to pay directly to injured employees or other beneficiaries compensation provided by this chapter [or] insure his full liability under this chapter” does not implicate benefits based upon conditions that would not qualify as compensable under Chapter 568, such as § 7-433c compensation. (Emphasis added.) Thus, some alternate means of paying § 7-433c benefits may be devised by the town, including the use of a group health insurance policy to process medical bills. As the respondent notes, the parties specified in ¶¶ 26 and 27 of their May 8, 2001 Stipulation of Facts that the claimant was currently incurring no out-of pocket expenses such as co-pays and deductibles in processing his medical and prescription drug bills via the town’s health insurance carrier. Given the absence of such circumstances, we are not persuaded that the respondent is improperly administering this claim by utilizing a group health insurer. The claimant is still receiving benefits “in the same amount and the same manner as that provided under chapter 568,” as required by § 7-433c. Thus, we find no error in ¶¶ K and L of the trier’s Finding and Award.
The respondents’ sole ground for appeal is based on the trier’s refusal to grant it an offset for the claimant’s Social Security old-age insurance benefits, in addition to his retirement benefits. Similar to our above analysis of the claimant’s retirement pension, we hold that old-age insurance benefits do not reflect either the amount a claimant is able to earn, or an attempt by the federal government to replenish lost wages due to a work-related disability. Rather, they are directly tied to the amount of money that one has contributed to Social Security throughout one’s working life, and are paid once an individual has reached the statutory age of retirement, and has left the work force. See 42 U.S.C. §§ 201 et. seq., especially § 203(b), § 215. Though § 31-307(e) provides that total incapacity benefits must be offset against any old-age insurance benefits received pursuant to the Social Security Act, no such offset has been created for other types of benefits, including permanent partial incapacity or additional discretionary benefits.
Both parties cite Merola v. The Jackson Newspaper, Inc., 3344 CRB-3-96-5 (Oct. 27, 1997), a case in which a claimant who was receiving Social Security old-age insurance benefits and who had ceased looking for work was awarded § 31-308a benefits. Observing that the Social Security Administration does not pay retirement benefits to individuals who are regular members of the work force, we stated that the trial commissioner would “have been better advised to limit the § 31-308a award to the period of time before the claimant’s 65th birthday, and to require the claimant to make a separate showing that circumstances warranted further § 31-308a benefits for any period of time postdating his 65th birthday.” This should not be read as a recommendation that commissioners treat Social Security retirement benefits as earnings in awarding additional compensation for permanent partial disability under § 31-308a, but rather as a reminder that a claimant must demonstrate a continuing willingness and ability to perform work in this state. The instant claimant not only works as a part-time judicial marshal according to the stipulated facts, but he also applied for full-time work in that position, which the trier was able to consider when making his decision to award benefits here. Therefore, we find no error in the trier’s exclusion of Social Security old-age insurance benefits from the claimant’s § 31-308a benefit calculation.
The trial commissioner’s decision is accordingly affirmed in part, and reversed with respect to his inclusion of retirement benefits in the amount that the claimant is “able to earn” pursuant to § 31-308a, and with respect to his conclusion that the “law of the case” doctrine prevented the § 7-433b(b) cap from applying to this case. A remand will be necessary to rectify those errors.
Commissioners Donald H. Doyle, Jr. and Jesse M. Frankl concur.