State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Luddy v. City of New Britain

CASE NO. 5447 CRB-8-09-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 12, 2010

THOMAS LUDDY

CLAIMANT-APPELLANT

v.

CITY OF NEW BRITAIN

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Jill Morrissey, Esq., and David J. Morrissey, Esq., Morrissey, Morrissey & Mooney, LLP, 203 Church Street, P.O. Box 31, Naugatuck, CT 06670.

The respondent was represented by Seth Feigenbaum, Esq., City of New Britain, 27 West Main Street, New Britain, CT 06051.

This Petition for Review from the March 19, 2009 Finding and Dismissal of the Commissioner acting for the Eighth District was heard October 23, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Randy L. Cohen and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. This case on appeal presents a single question of law for our consideration: Did the federal Employee Retirement Income Security Act “ERISA” (29 USC §1001 et seq.) serve to pre-empt state statute requiring a municipality to provide health insurance benefits to an injured worker? The trial commissioner in this matter concluded that it did, and dismissed the claimant’s bid for such benefits. Upon review of the relevant federal statute we conclude this decision was in error. Since ERISA exempts governmental entities such as the respondent, we reverse the decision of the trial commissioner and sustain this appeal.

The facts in this case are generally not in dispute. The claimant was hired as a firefighter by the City of New Britain in 1966 and successfully passed a pre-employment physical. He was diagnosed with hypertension on or about November 3, 1977. He filed a claim for benefits under § 7-433c C.G.S. which was accepted by the respondent pursuant to a Finding and Award dated April 15, 1986. At the time of his injury the respondent provided the claimant and his family with health insurance and life insurance. The respondent paid the full cost of these benefits up to the date of the claimant’s retirement on March 24, 1985.

The claimant was subsequently examined and received a permanent partial disability rating. A Supplemental Finding and Award was entered into on October 3, 2006 establishing a compromised rating of 52.5% of the cardiovascular system. This entitled the claimant to 409.5 weeks of compensation at the rate of $147 per week (maximum) commencing February 8, 2005. The claimant believes pursuant to § 31-51h C.G.S. that when he is receiving workers’ compensation benefits or heart and hypertension benefits that he is entitled to receive health insurance, dental and all other insurance benefits he had during his employment. The respondent argues this statute was repealed in 1982 as a result of court decisions finding the statute unconstitutional.

The trial commissioner concluded that the Compensation Review Board’s decision in Munroe v. Dunham-Bush Inc., 4 Conn. Workers’ Comp. Rev. Op. 123, 324 CRD-1-84 (November 19, 1987) governed the facts of this case. In Munroe the claimant was receiving benefits under § 31-51h C.G.S. with an injury prior to October 1, 1982. These benefits ceased when the statute was deemed “unconstitutional.” The claimant in Munroe also failed in his argument that § 31-284b C.G.S., which was enacted in 1982 in response to the ERISA issue, should be given retrospective application. Therefore the trial commissioner dismissed the claim for health care benefits.

The claimant filed a Motion to Correct. The claimant’s motion sought to correct certain scrivener’s errors in the Finding and Dismissal. These corrections were approved. The claimant’s motion also sought to change the text of the Finding and Dismissal to reflect that the rationale for the court decisions invalidating § 31-51h C.G.S. were based on the theory of federal pre-emption, not constitutionality. These corrections were denied. The claimant has now pursued this appeal.

We have often noted that on appeal we must extend deference to the conclusions of the trial commissioner. Nonetheless, on issues of legal interpretation we must ascertain if the trial commissioner’s conclusions of law are correct. Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007). Citing Sullivan v. Madison-Police Department, 4893 CRB-3-04-12 (June 9, 2006), we pointed out “it is our responsibility as an appellate body to correct a commissioner’s misapplication of the law to the subordinate facts.” Id.

The central question herein is to what extent the federal ERISA statutes have acted to invalidate inconsistent Connecticut statutes governing the same issues? This requires a review of the pertinent statutes. The claimant asks us to look to § 1003(b)(1) of the ERISA Act. Entitled “Coverage;” this statute states as follows:

The provisions of this subchapter shall not apply to any employee benefit plan if- such plan is a governmental plan (as defined in section 1002 (32) of this title.

The definition of “governmental plan” is located at § 1002 (32) of the Act. It states as follows.

The term “governmental plan” means a plan established or maintained for its employees by the Government of the United States, by the government of any state or political subdivision thereof, or by any agency or instrumentality of the foregoing. . . .

We may take administrative notice that the City of New Britain is a political subdivision of the State of Connecticut. There is also no dispute that the claimant was a city employee. Under ERISA it is clear that the claimant was receiving benefits pursuant to a “governmental plan.” It is also clear that ERISA places such “governmental plans” outside the coverage parameters of the Act.

The respondent’s argument is dependent upon their belief that the Stone & Webster cases (Stone & Webster Engineering Corp. v. Ilsley, 518 F.Supp. 1297 (D.Conn. 19810, aff’d, 690 F.2d 323 (2nd Circuit, 1982), aff’d, sub nom Arcudi v. Stone & Webster Engineering Corp., 463 U.S. 1220 (1983)) implemented a blanket invalidation of § 31-51h C.G.S. for all employees. A review of these cases demonstrates that the holdings in those cases do not stand for that proposition. These cases dealt only with private sector employees and did not address the impact of ERISA on public sector employees. We note that the respondent in this case raised the issue of “constitutionality” of Connecticut statutes. However, the actual text of the District court’s Stone & Webster opinion strictly limited the holding “as to the benefit plan at issue.”1 The benefit plan of the claimant, or indeed anyone similarly situated to the claimant, was not litigated in Stone & Webster Engineering Corp.2 Therefore, we reject the respondent’s interpretation of these cases and their reliance on such precedents.

The respondent also claims the holding of Civardi v. Norwich, 231 Conn. 287 (1994) supports their position that the claimant’s relief has been barred by judicial precedent. We are puzzled at this conclusion as that decision focused almost entirely on issues pertaining to the transfer of cases to the Second Injury Fund. Indeed, footnote 14 of the Civardi opinion stands in sharp contrast to the respondent’s position, and indicates that benefits issued under the successor statute to § 31-51h C.G.S., § 31-284b C.G.S., continue unabated for public employees. This footnote states, in part,

The state and its municipalities, however, continue to provide § 31-284b benefits and may seek reimbursement under General Statutes § 31-349 (e) for those health insurance premiums for their employees benefits pursuant to §31-307 for more than 104 weeks.

Civardi therefore does not support the respondent’s argument that the statutes which provide for the continuance of health benefits to injured public employees have been overturned by the judiciary.

The other argument that the respondent raises herein is that since the original statute under which the claimant was entitled to benefits, § 31-51h C.G.S, was repealed by the General Assembly, this repeal extinguished his rights to future benefits. As the respondent views the law, the subsequent enactment of § 31-284b C.G.S. as a replacement statute does not permit the claimant to obtain relief under its jurisdiction, as the respondent claims this statute was not intended to have retroactive impact. We do not agree with the respondent’s analysis.

If the effect of the various Stone & Webster decisions was not to abrogate existing coverage under the law for public employees, then § 31-51h C.G.S. was good law as it applied to the claimant as of the claimant’s date of injury and at all times thereafter. Such a conclusion is drawn from the actual language of these decisions—which were limited to the “benefit plan at issue”—and the actual terms of ERISA itself. As the Second Circuit pointed out in its Stone & Webster Engineering Corp. opinion, the federal courts cannot pre-empt state laws that provide coverage that the United States Congress has affirmatively protected within the terms of the federal statute.

The respondent places reliance on the case of Pascarelli v. Moliterno Stone Sales, 44 Conn. App. 397 (1997) for their claim the repeal of § 31-51h C.G.S. extinguished the claimant’s rights. We find Pascarelli inapplicable for a number of reasons. That case dealt with a private sector employee. It also dealt with the pre-emption of § 31-284b C.G.S. not § 31-51h C.G.S. The Appellate Court also decided to “decline to review the plaintiff’s claim” on this issue since the issue had not been previously raised before the trial commissioner or this panel. Id., at 401.

Therefore, we do not find precedent supports the respondent’s position that the “date of injury” rule as promulgated in such cases as Preveslin v. Derby & Ansonia Developing Co., 112 Conn. 129 (1930) and Iacomacci v. Trumbull, 209 Conn. 219 (1988) should not be applied to the claimant. Our panel has restated the vitality of this principle in such cases as Distiso v. Southington, 16 Conn. Workers’ Comp. Rev. Op. 93, 3073 CRB-6-95-6 (November 13, 1996) and Hodgkins v. Southington, 16 Conn. Workers’ Comp. Rev. Op. 96, 3074 CRB-6-95-5 (November 13, 1996). Our precedent was cited as governing law in an official opinion of the Attorney General, dated March 3, 2000, applying the “date of injury” rule so as to continue coverage under § 31-51h C.G.S. and § 31-284b C.G.S. to injured workers.3

There is no support in this opinion for the respondent’s position that the repeal of § 31-51h C.G.S. extinguished rights vested in workers injured prior to its repeal. It is apparent from the text of the Attorney General’s opinion and from this panel’s precedents that state employees injured while § 31-51h C.G.S. was still in effect, are entitled to a continuance of benefits. We cannot ascertain any reason why employees of one of the state’s municipalities would not be treated in similar fashion by applying the “date of injury rule” under this law.

As a result, we sustain the claimant’s appeal and vacate Finding, ¶ M of the Finding and Dismissal. Judgment may enter for the claimant.

Commissioners Randy L. Cohen and Stephen B. Delaney concur in this opinion.

1 On appeal, the Second Circuit reiterated this position that § 31-51h C.G.S. was void only as to benefits plans pre-empted by ERISA regulation. “Second, under 29 U.S.C. § 1144(a), benefit plans that are themselves exempted from ERISA coverage are exempted from preemption.” Stone & Webster Engineering Corp., v. Ilsley, 690 F.2d 323, 329. The exemption provisions in ERISA are codified at § 1003(b) of the Act. BACK TO TEXT

2 As a result, we believe that Findings, ¶ M is unsupported by the case law governing municipal employers and must be vacated. We note that in Pascarelli v. Moliterno Stone Sales, 3925 CRB-4-98-11 (December 22, 1999), we determined § 31-284 C.G.S. was “declared inapplicable to private employers due to preemption” by ERISA. We find no basis to extend this position to public sector employers. To the extent that Munroe v. Dunham-Bush Inc., 324 CRD-1-84 (November 19, 1987) may have suggested otherwise, we specifically overrule that portion of the opinion. BACK TO TEXT

3 The relevant text of this opinion is as follows:

In case law decided after the 1984 opinion, the Compensation Review Board (CRB) of the Workers’ Compensation Commission has consistently maintained that the “date of injury rule” applies to § 31-284b. This rule provides that the rights and obligations of the employer and the employee under the Workers’ Compensation Act are fixed and determined by the contractual and statutory provisions in effect at the time the employee was injured. See Iacomacci v. Town of Trumbull, 209 Conn. 219, 222 (1988). Thus, as we stated in the July 24, 1984, opinion from this office, the date of the employee’s injury determines what law is applied. For almost all retired state employees, the applicable law would be § 31-284b, or its predecessor, § 31-51h both of these sections require essentially the same thing, i.e., that insurance coverage be maintained for employees receiving workers’ compensation.

The date of injury rule requires that employees receiving or eligible to receive workers’ compensation benefits must be provided with benefits “in the same amount and in the same manner as was provided [at the date of injury].” Distiso v. Town of Southington, 3073 CRB-6-95-5 November 13, 1996. See also Hodgkins v. Town of Southington, 3074 CRB-6-95-5, decided the same day. (Emphasis added) http://www.ct.gov/ag/cwp/view.asp?A=1770&Q=2817564. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: April 19, 2010

Page URL: http://wcc.state.ct.us/crb/2010/5447crb.htm

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