State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Cascella v. State of Connecticut Department of Correction

CASE NO. 5390 CRB-4-08-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 28, 2009

RONALD CASCELLA

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/DEPARTMENT OF CORRECTION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

GAB ROBINS OF NORTH AMERICA, INC.

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Juliet M. Nolta, Esq., 55 Corporate Drive, Trumbull, CT 06611.

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

This Petition for Review from the October 15, 2008 Finding and Award of the Commissioner acting for the Fourth District was heard on April 24, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Christine L. Engel.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the October 15, 2008 Finding and Award of the Commissioner acting for the Fourth District. We find error and accordingly reverse in part the decision of the trial commissioner. Given that the issue upon which we reverse is dispositive of the appeal, we therefore decline to reach the remaining arguments propounded by the appellant.

The following factual findings are pertinent to our review. The claimant, an employee of the Department of Correction since July 23, 1993, was working as a Correction Officer at the Bridgeport Community Correctional Center on February 26, 1996. The claimant testified that his job responsibilities consisted of inspecting his assigned unit, performing “facility counts,” and transporting inmates to activities such as classes, medical or counseling appointments, and recreational programs. The claimant stated that “his number one job duty . . . is to create a safe and humane environment for staff as well as inmates to cohabitate.” Findings, ¶ 13. On February 26, 1996, the claimant was scheduled to work from 4:00 p.m. to 12:00 a.m. as a “rover,” which role required him to cover various areas of the facility while other officers were on their meal breaks and to be available for emergency calls.

On the evening of February 26, 1996, a “code white” occurred in the New Center Hospital, which is located within the correctional facility. A “code white” signifies that an emergency is occurring, and at trial the claimant explained that he was trained at the academy “to respond to a code as quickly as possible, since a simple code could turn into the loss of a unit, loss of control of a facility or a loss of someone’s life.” Findings, ¶ 18. The claimant testified that he immediately responded to the code and was instructed to go to the shower area in the hospital; he did so, and testified that as he approached the showers, “the situation was confusing and alarming. [The claimant] heard keys jingling, radios going off and directions being yelled and screamed by officers.” Findings, ¶ 21. When he arrived at the scene, there were blood spatters on the wall and floor, and he saw that a fellow correction officer was restraining an inmate by one arm which he had pinned against the wall of the shower. The claimant testified that he did not know what the inmate was doing with his other arm but was concerned that a weapon might had been used because the inmate had cut himself.

The claimant testified that when he reached the shower area, he was told to “glove up,” which is a universal precaution officers are trained to perform in order to avoid exposure to diseases which can be transmitted through the transfer of bodily fluids. The claimant stated that as he slowed down to put his gloves on, he stepped into a puddle on the floor of the shower area which caused him to lose his footing. The claimant sustained a compensable injury and subsequently underwent two surgeries on his lumbar spine. The claimant is seeking temporary total disability benefits pursuant to § 5-142(a) C.G.S. (also known as hazardous duty pay) for the period immediately following the injury between February 27, 1996 and August 27, 1996.1 The claimant is also seeking temporary total disability benefits pursuant to § 5142(a) C.G.S. for the period between August 21, 2003 through July 31, 2006, during which time he underwent surgeries in February 2004 and January 2006.

Two Voluntary Agreements were approved in this matter; the first on October 13, 1999 awarding a twelve percent (12%) permanent partial disability rating of the back, and the second on August 20, 2007 reflecting an additional compromised rate of 21.5% to the back. Neither of these Voluntary Agreements articulated the weekly rate at which the claimant would be paid for temporary total incapacity, and the claimant did not sign a separate Voluntary Agreement indicating his weekly temporary total disability payment rate.

The respondent argued that the circumstances surrounding the claimant’s injury “do not bring this claim within the ambit of C.G.S. Section 5-142(a).” Findings, ¶ 9. The respondent also asserted that correspondence of April 7, 2005, written by claimant’s prior counsel to Commissioner Charles Senich of the Workers’ Compensation Commission, constituted an “election” of temporary total benefits to be paid under the auspices of § 31-307 C.G.S. of the Workers’ Compensation Act, and the claimant is therefore prohibited from receiving hazardous pay benefits pursuant to § 5142(a) C.G.S. at this juncture.

The trial commissioner determined the claimant was a member of one of the classes of state employees eligible to claim temporary total disability benefits pursuant to § 5-142(a) C.G.S. The trial commissioner found the claimant’s testimony “credible and persuasive,” Findings, ¶ N, and concluded that “the claimant sustained a compensable injury to his lower back while in the actual performance of his guard duties while attending an inmate.” Findings, ¶ D. The trial commissioner also found that “the claimant’s injury was the result of special hazards inherent in his job duties,” Findings, ¶ J, and when the injury occurred, the claimant “was responding to an emergency situation that, pursuant to his training, required his immediate response.” Findings, ¶ E. Finally, the trial commissioner, noting that the claimant had never signed a Voluntary Agreement which would have established a weekly rate for total incapacity benefits, stated that she “reject[ed] the respondent’s position that the claimant elected to be paid total disability benefits pursuant to Chapter 568.” Findings, ¶ O.

The respondent filed a Motion to Correct which was denied in its entirety, and this appeal followed. The respondent argues that the trial commissioner’s failure to find the claimant elected to be paid total incapacity benefits pursuant to the Workers’ Compensation Act rather than § 5-142(a) C.G.S. constituted error. The respondent also claims as error the trial commissioner’s conclusion that the circumstances surrounding the claimant’s injury brought him within the scope of § 5142(a) C.G.S., given that the trial commissioner also found that the claimant was responding to an emergency code when he was injured.2 Finally, the respondent contends that the trial commissioner erred in refusing to grant the corrections propounded in the respondent’s Motion to Correct.

We begin our analysis by reciting the well-settled standard of deference we are called upon to apply to a trial commissioner’s findings and legal conclusions.

. . . the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).

We turn our analysis to the respondent’s contention that the trial commissioner erred in failing to find that the claimant, as a result of the correspondence dated April 7, 2005 written to Commissioner Charles Senich by claimant’s prior counsel, elected to receive total incapacity benefits pursuant to § 31-307 C.G.S. of the Workers’ Compensation Act rather than pursuant to § 5-142(a) C.G.S. In this correspondence, claimant’s counsel wrote, “we no longer intend to pursue hazardous duty pay pursuant to Connecticut General Statutes 5142(a), although we firmly believe that Lt. Cascella would prevail….” Respondent’s Exhibit 1. Claimant’s counsel also stated, “… Lt. Cascella has determined that it is not in his best financial interest to sacrifice the COLA protection afforded under 31-310, in exchange for hazardous duty pay.” Respondent’s Exhibit 1.

Our legislature enacted § 5-142(a) C.G.S. in order to afford certain groups of state employees whose employment was deemed more hazardous than the norm the opportunity to collect temporary total incapacity benefits at a rate equivalent to the employee’s full salary, rather than at the adjusted rate generally contemplated by the Workers’ Compensation Act. “The classifications of state employees enumerated in the provision share a common characteristic: these employees, in the daily course of performing their duties, work in an atmosphere sometimes charged with emotion and stress, and face the possibility of confrontations with inmates, patients or arrestees, which confrontations often result in violence.” Lucarelli v. State, 16 Conn. App. 65, 69 (1988). With specific reference to correctional facility employees, our Supreme Court has observed that,

The purpose of the legislature’s enactment of § 5-142(a) was to recognize that certain employees, such as prison guards, deal with a class of society that a court has determined needed to be removed from society to protect law abiding citizens from them. Jailing dangerous convicts removes the danger to society at large but, at the same time, concentrates that danger in the prisons where guards work.

Johnson v. State, 67 Conn. App. 330, 344 (2001).

However, while the legislature did provide certain claimants the opportunity to collect hazardous duty benefits, it did not delineate the procedure by which a claimant must elect these benefits as opposed to temporary total disability benefits pursuant to § 31-307 C.G.S. In fact, prior to Jones v. Mansfield Training School, 220 Conn. 721 (1992), hazardous duty benefits were automatically paid as a matter of course provided the claimant met the statutory criteria. In Jones, the claimant, who was eligible for higher disability payments under § 31-307 C.G.S. than under § 5-142(a) C.G.S. as a result of the allowance for overtime wages in the calculations for the former, challenged the automatic assignment of hazardous duty benefits, arguing she had a right to an election of remedies between the two statutes. In its analysis, the Supreme Court framed the issue presented as “whether the legislature intended to make the special benefit conferred by § 5-142(a) the exclusive remedy for an injured worker even in the unusual situation in which an alternate calculation of workers’ compensation benefits would provide greater financial relief.” Id., at 726.

In spite of the arguably mandatory language of § 5-142(a) C.G.S., which states that a claimant “shall continue to receive the full salary …” (emphasis added), the court ultimately agreed with the claimant, relying on the fact that the statute does not expressly require that it be construed as an exclusive remedy.3 Noting that “[t]he legislature, in its various reenactments of General Statutes [§ 5-142(a)], has steadfastly manifested its intention to make these benefits a generous source of compensation for its designated beneficiaries,” id., at 725, the court concluded, “[w]e are … persuaded that the legislature did not intend, sub silentio, to convert the special benefits conferred by § 5-142(a) into an obstacle to the greater recovery under § 31-307 to which the claimant would otherwise be entitled because of her long record of overtime work.” Id., at 730.

Relative to the case at bar, we note at the outset that absent statutory guidance relative to the specific procedure by which a claimant may elect the preferred remedy, we are left with little guidance save for the following directive as articulated by the Supreme Court in Trinkley v. Ella Grasso Regional Center, 220 Conn. 739 (1992), a companion case to Jones, wherein the court concluded that the claimant “may instead elect an alternate calculation of her benefits, based on her rights as an ordinary state employee to workers’ compensation….”4 Trinkley, supra, at 747. It is reasonable to infer that the court, consistent with its position in Bakelaar v. West Haven, 193 Conn. 59 (1984), wherein the court reviewed a claimant’s election of benefits between the Heart and Hypertension Act and the Workers’ Compensation Act, did not contemplate the creation of an entirely separate mechanism to effect this choice.5 “The procedure for determining recovery under § 7-433c is the same as that outlined in chapter 568, presumably because ‘the legislature saw fit to limit the “procedural avenue” for bringing claims under § 7433c to that already existing under chapter 568 rather than require the duplication of the administrative machinery available … and further burden the courts and the municipalities ….’” Id., at 68, quoting Plainville v. Travelers Indemnity Co., 178 Conn. 664, 671-672 (1979).

Webster’s Ninth New Collegiate Dictionary defines the verb “elect” as “to make a selection.” In Manning v. State, 123 Conn. 504 (1937), our Supreme Court remarked, “[e]lection means the making of an act of choice between two or more courses of conduct and implies that the act was done under such circumstances that the choice is binding.” Id., at 515, citing Usher v. Waddingham, 62 Conn. 412 (1892). The doctrine of election of remedies serves to grant a party to an action the option to choose among different litigation strategies; however, that right is not untrammeled. “The doctrine of election of remedies is an application of the law of estoppel. If one having a right to pursue one of several inconsistent remedies makes his election he is estopped thereafter to pursue another and inconsistent remedy if such action will adversely affect the other party.” Gerber & Co., Inc. v. Wilson, 114 Conn. 378, 382 (1932). The doctrine also requires an affirmative act on the part of the litigant making such an election. “An actual or implied intent to elect is necessary to constitute an election between two remedies open to a litigant.” Id., at 381.

In the case at bar, the claimant, via counsel, in the correspondence of April 7, 2005 made an unambiguous request to receive temporary total incapacity benefits under the auspices of the Workers’ Compensation Act, thereby preserving his entitlement to annual cost-of-living increases pursuant to § 31-307a C.G.S.6 While we note that the claimant has since retained new counsel, the record also indicates the claimant was aware of and concurred with the position articulated by his former attorney in the April 7, 2005 correspondence.7 Thus, “[t]he record is devoid of any indication that the [claimant] made this election involuntarily or without full knowledge of the consequences.” Hyatt v. Milford, 57 Conn. App. 472, 478 (2000). Moreover, while there did seem to be some confusion at trial regarding the exact amount the claimant was paid, there was no question that the claimant accepted and cashed the checks sent to him by the respondent and that such checks were being paid pursuant to § 31-307 C.G.S.8

We recognize the logical validity of the trial commissioner’s apparent inference that the respondent’s failure to codify the temporary total incapacity rate in a voluntary agreement or to memorialize in some other fashion the temporary total incapacity rate at which the claimant was to be paid may have thereby negated the legal significance of the April 7, 2005 correspondence. However, in light of the clear and unambiguous nature of this correspondence, we conclude we have no choice but to reverse the trier’s decision to award § 5-142(a) C.G.S. benefits to the claimant.

As our resolution of this issue is dispositive of the appeal, we decline to address the arguments propounded by the appellant relative to the claimant’s ineligibility for § 5142(a) C.G.S. benefits based on the particular circumstances under which the claimant sustained his injury.

Commissioners Peter C. Mlynarczyk and Christine L. Engel concur in this opinion.

1 Section 5-142(a) C.G.S. (Rev. to 1995) states, in pertinent part, “[i]f any member of … any correctional institution … sustains any injury (1) … while attending or restraining an inmate of any such institution or as a result of being assaulted in the performance of his duty … and (2) that is a direct result of the special hazards inherent in such duties, the state shall pay all necessary medical and hospital expenses resulting from such injury. If total incapacity results from such injury, such person shall be removed from the active payroll the first day of incapacity, exclusive of the day of injury, and placed on an inactive payroll. He shall continue to receive the full salary which he was receiving at the time of injury subject to all salary benefits of active employees, including annual increments, and all salary adjustments, including salary deductions, required in the case of active employees, for a period of two hundred sixty weeks from the date of the beginning of such incapacity. Thereafter, such person shall be removed from the payroll and shall receive compensation at the rate of fifty per cent of the salary which he was receiving at the expiration of said two hundred sixty weeks as long as he remains so disabled….” BACK TO TEXT

2 In 2001, Public Act 01-208 amended § 5-142(a) C.G.S. by adding the following language: “or while responding to an emergency or code at a correctional institution ….” The instant claimant’s injury occurred in 1996. BACK TO TEXT

3 See footnote 1, supra. BACK TO TEXT

4 In Trinkley, the court held, consistent with its holding in Jones, that the Trinkley claimant was also entitled to elect benefits pursuant to either § 5-142(a) C.G.S. or the Workers’ Compensation Act. However, the claimant would only be eligible to receive § 31-310 C.G.S. benefits (concurrent employment) if she elected to be paid pursuant to the Workers’ Compensation Act. BACK TO TEXT

5 See § 7-433c C.G.S. BACK TO TEXT

6 We find claimant’s counsel’s suggestion that this correspondence “may be construed as merely an attempt to apprise the Commissioner that the claimant would not be addressing the issue of § 5-142(a) entitlement at the upcoming informal hearing …” to be disingenuous. Appellee’s Brief, p. 5. BACK TO TEXT

7 At trial, the claimant admitted he was familiar with the April 7, 2005 correspondence and it was written with his knowledge and consent. February 20, 2008 Transcript, p. 36. The claimant also remarked, “[i]t was my understanding that Attorney Spielman was sending this letter, I took it as him having my best interests in mind…. He copied me in on it and I received a copy of it.” Id., at 44. BACK TO TEXT

8 At trial, the claimant stated, “I wasn’t sure of the rate I was being paid. I assumed I was being paid correctly because at that time, I was in a lot of pain, I did have a couple surgery [sic] and my bills didn’t stop coming in. I needed a check. I had responsibilities.” Id., at 45. BACK TO TEXT

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