State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Marandino v. Prometheus Pharmacy

CASE NO. 5434 CRB-6-09-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 22, 2012

SUSAN MARANDINO

CLAIMANT-APPELLANT

v.

PROMETHEUS PHARMACY

EMPLOYER

and

CNA/RSKCO SERVICES

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Angelo Paul Sevarino, Esq., Law Office of Angelo Paul Sevarino, 110 Day Hill Road, Windsor, CT 06095-1794 and Herbert Watstein, Esq., Watstein & Watstein, P.C. 685 Middle Street, P.O. Box 1360, Bristol, CT 06011-1360.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Suite 216, Glastonbury, CT 06033-4453.

This Petition for Review from the February 6, 2009 Finding and Dismissal of the Commissioner acting for the First District was heard January 21, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Christine L. Engel.

OPINION

SCOTT A. BARTON, COMMISSIONER. The claimant appeals from the February 6, 2009 Finding and Dismissal of the Commissioner acting for the First District. In that Finding and Dismissal, the trial commissioner concluded that the claimant was not entitled to cost-of-living-adjustments pursuant to § 31-307a(c).1

The factual background giving rise to this claim begins with a compensable injury occurring on February 18, 1999. On that date the claimant suffered a right arm injury. As a result of the injury to the right arm, the claimant underwent a number of surgeries. The following year (January 1, 2000) the claimant suffered a right knee injury when she fell down some stairs. The claimant contended that the injury was causally related to her right arm injury as she was unable to grasp the handrail with her right arm and was forced to try and grasp the handrail with her left arm, thereby twisting her knee. As a result of the fall on the stairs, the claimant underwent two knee surgeries.

The claimant’s claim for benefits was originally considered in the August 11, 2005 Finding and Award of the Commissioner acting for the First District. In the August 11, 2005 Finding and Award, Commissioner Howard H. Belkin concluded, inter alia, that the claimant’s injuries to her right arm due to the February 18, 1999 incident and right knee injury due to the January 1, 2000 fall down the stairs were compensable. Commissioner Belkin also concluded that the claimant was entitled to temporary total disability benefits pursuant to § 31-307.2

We begin with a review of not only the factual circumstances giving rise to this claim but a review of prior proceedings. Issues relating to this claim were first considered in this tribunal’s opinion in Marandino v. Prometheus Pharmacy, 4986 CRB-1-05-8 (September 29, 2006), rev’d in part, 105 Conn. App. 669 (2008), cert. granted, 286 Conn. 916 (2008), aff’d in part; rev’d in part, 294 Conn. 564 (2010) [hereafter Marandino I]. While we have explained the factual circumstances giving rise to the claim it is worth noting that the issues presented in Marandino I included the following; (1) whether the trial commissioner erred in awarding the claimant, who by a November 2, 2002 voluntary agreement was accorded a 41.8% permanent partial disability for the loss of use of her right master arm,3 total disability benefits, and (2) whether the claimant’s knee injury was causally related to the injury to her right arm. This tribunal affirmed the August 11, 2005 Finding and Award of the Commissioner acting for the First District in which he awarded the claimant temporary total disability and found that the claimant’s knee injury was related to the right arm injury.

The respondents appealed Marandino I to the Appellate Court. In Marandino v. Prometheus Pharmacy, 105 Conn. App. 669 (2008) the majority concluded that the compensation review board properly affirmed the trial commissioner as to claimant’s entitlement to temporary total disability benefits. The majority, however, held that the compensation review board erred in affirming the trial commissioner’s conclusion that the claimant’s knee injury was causally related to her right arm injury. Specific to the issue of proximate causation between the right knee and the compensable right arm injury the majority held that there was insufficient evidence to support the trier’s finding and conclusion.4 Judge Mihalakos dissented from the majority opinion on this issue.5

Thereafter, both parties took appeals to the Supreme Court. The respondents sought the court’s review of whether the Appellate Court properly determined “that the claimant was entitled to temporary total benefits after having received permanent partial disability benefits pursuant to a voluntary agreement?” Marandino v. Prometheus Pharmacy, 286 Conn. 916 (2008). The claimant cross appealed and sought review of whether the Appellate Court properly determined “that the workers’ compensation commissioner improperly relied on the report by Vincent Santoro, an orthopedic surgeon?” Marandino v. Prometheus Pharmacy, 286 Conn. 917 (2008).

In its opinion in Marandino v. Prometheus Pharmacy, 294 Conn. 564 (2010), the Supreme Court affirmed the Appellate Court’s holding that the claimant was entitled to total incapacity benefits. The Supreme Court reversed the Appellate Court’s holding that Dr. Santoro’s opinion on causation was not competent evidence sufficient to support the trial commissioner’s conclusion.6 In short, the Supreme Court held the claimant was entitled to § 31-307 temporary total disability benefits and that her right knee injury was causally related to her arm injury.

Following the Supreme Court’s opinion in Marandino, id., the claimant brought proceedings in which she sought COLA benefits pursuant to § 31-307a(c). Those proceedings resulted in the February 6, 2009 Finding and Dismissal of the Commissioner acting for the First District. In that Finding and Dismissal, the trial commissioner concluded that the claimant was not entitled to cost-of-living-adjustments pursuant to § 31-307a(c).7 The claimant presents the following issue for review, whether the trial commissioner erred in concluding that the claimant was not entitled to a COLA pursuant to § 31-307a(c).

In pertinent part § 31-307a(c) provides a COLA to a claimant who is injured and is permanently totally disabled or “has been totally incapacitated by such an injury for a period of five years or more.” The trial commissioner in his dismissal of the claim for COLAs held that “a period of five years or more” required that the claimant receive temporary total disability benefits for a single, continuous five year period before she was entitled to a COLA. Thus, the ultimate issue on appeal is whether the trial commissioner applied the law correctly.

The issue at hand turns on how the provision in § 31-307a(c), i.e., “a period of five years or more” is construed. The claimant argues that this language is to be read as permitting an accumulation of periods of total disability until the claimant reaches 260 weeks of total incapacity.8 The respondents contend that the trial commissioner construed the language of § 31-307a(c) correctly. They note that the trier’s construction of the statute is consistent with the plain language rule of statutory construction codified at § 1-2z, which provides:

The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.

The claimant argues that the statutory language at issue is ambiguous and therefore, we are permitted to consider the legislature’s intent.

In advance of our discussion evaluating the merits of the claimant’s appeal, we believe a review of chapter 568 COLA legislation and pertinent case law interpretation is warranted. Prior to July 1993 claimants who were injured after October 1, 1969 and before July 1, 1993 were entitled to an annual COLA, § 31-307a C.G.S. 1993. In 1991 the first of two significant attempts by the legislature to rein in Workers’ Compensation costs were implemented. Public Acts 1991, No. 91-339, § 27 [hereafter P.A. 91-339, § 27] changed the method of calculating COLAs from an annual flat dollar increase to a percentage based calculation. Prior to the effective date of P.A. 91-339, § 27 those claimants who were eligible for a COLA were entitled to an annual calculation on October 1 of each year. On October 1 the COLA was calculated on the basis of “the flat dollar increase in the maximum compensation rate from year to year.” Gil v. Courthouse One, 239 Conn. 676, 680 (1997).

Differences of opinion arose as to how the change in the COLA calculation method would affect the COLA calculation for those injured prior to the effective date of P.A. 91-339, § 27. Those differences in opinion and suggested methods for the COLA calculation were reviewed in both Gil, id., and Rutledge v. State, 63 Conn. App. 370, 373-78 (2001). Ultimately, the Gil court held that the method for calculating annual COLAs for those previously entitled to a flat dollar adjustment was to apply P.A. 91-339 so as to preserve the COLA effective October 1, 1990, for claimants who had been receiving COLAs prior to October 1, 1991. The Gil majority then prescribed the following method for calculating COLAs:

In order to arrive at the proper percentage of increase, the current maximum compensation rate should be divided by the maximum compensation rate effective on October 1, 1990 (the last maximum compensation rate before P.A. 91-339, § 27, became effective); that figure should be multiplied by the claimant’s base compensation rate, i.e., the compensation rate as of the date of injury; the resulting figure should then be added to the claimant’s COLA on October 1, 1990 (this recognizes and preserves the claimant’s accrued COLAs). This sum is the claimant’s current adjusted compensation rate. This method preserves the 1990 flat dollar COLA by simply adding it to the claimant’s adjusted compensation rate as calculated by the statute. (Footnotes omitted.)

Gil, supra, at 692.

The second phase of the legislature’s attempt to reduce Workers’ Compensation costs vis a vis COLAs was Public Acts 1993, No. 93-228 § 17 [hereafter P.A. 93-228 § 17]. That Act eliminated COLAs for anyone injured after July 1, 1993. As our Supreme Court acknowledged in Hasselt v. Lufthansa German Airlines, 262 Conn. 416, 423 (2003), “the legislature reversed course, effective October 1, 1997, adding subsection (c) to § 31-307a, which reincorporated COLAs for totally incapacitated employees sustaining injuries on or after July 1, 1993. See Public Acts 1997, No. 97-205, § 4; see also Substitute Senate Bill No. 976, 1997 Sess., § 4 (entitled “An Act Restoring Workers’ Compensation Cost-of-Living Adjustments for Widows, Widowers, Orphans and Totally Disabled Workers”).”

It is the construction of the terms contained in § 31-307a(c) and specifically what is meant by the term “a period of five years or more” that we consider. The parties have described the issue before us as one of first impression. While that may be technically true, we cannot say that we are presented with a tabula rasa.

We have had the opportunity to decide a number of cases in which § 31-307a(c) was at issue. See e.g., Russell v. State/Dept. of Developmental Services/Southbury Training School, 5212 CRB-5-07-3 (March 18, 2008) (statute did not create a new class of claimants and claimants continued to have burden of proof as to the disability status); Wagner v. New Milford Medical Group, 4553 CRB-7-02-7 (April 3, 2003) (COLAs payable from start of 5 year period and COLA calculation should be on a graduated basis); and Cunningham v. Monroe Group, 4322 CRB-4-00-12 (December 20, 2001) (Second injury Fund required to reimburse respondents for COLAs paid to § 31-306 dependents).

The issue herein presents our opportunity to construe the legislature’s attempt to modify chapter 568’s failure to provide a COLA for those injured after July 1, 1993. Specifically we are asked to determine whether a claimant must have sustained a single five (5) year period of disability and been adjudicated as same before the claimant is entitled to a COLA.9 Essentially the trial commissioner interpreted the applicable provisions of § 31-307a(c) as requiring the claimant satisfy a two prong test, (1) that the claimant sustained a single five year period of total incapacity, and (2) was adjudicated as such.

Our review begins with whether entitlement to a COLA for one in the claimant’s circumstances requires that the claimant sustain a period of temporary total disability for a single period of five (5) years or whether the five (5) year period may be comprised of an amalgam of temporary total disability periods until the number of weeks reached is five years or more. We conclude the language at issue should be interpreted as permitting a COLA to a claimant where the claimant is entitled to temporary total disability benefits for five years and that five year period need not be a single, uninterrupted period. We therefore reverse the February 6, 2009 Finding and Dismissal of the Commissioner acting for the Sixth District.

As the issue before us is a matter of statutory construction we are first guided by § 1-2z.10 Sec. 1-2z is often referred to as the “plain meaning” rule of statutory interpretation. Essentially, it posits that “[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself….” It is the contention of the respondents that the plain meaning of “a period” is a single period. That reasoning was accepted by the trial commissioner and arguably finds support in the common lexicons of our language. We note that the term “a” is defined as an indefinite article and is “used before nouns and noun phrases that denote a single, but unspecified person or thing.” See Webster’s II New College Dictionary (1995), p.1.

However, in reviewing the interpretation accorded by our courts to the term “a” we find opinions that state “[A]” is an indefinite article that may or may not impose a numerical limitation. As our court stated in Arnold v. Hoffer, 94 Conn. App. 53, 58-59 (2006) (footnotes omitted.. “[a]lthough the indefinite article ‘a’ is defined as imposing a numerical limitation, this court has stated that the article ‘a’ may or may not impose a numerical limitation. Contegni v. Payne, 18 Conn. App. 47, 66, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989).” (Footnotes omitted.. Our courts have also held that “a” may be construed as “any.” See Mallozzi v. Nationwide Mutual Ins. Co., 72 Conn. App. 620 (2002).

Applying this same analysis to the term “period” we find that term is defined, inter alia, as “an interval of time marked by the occurrence of certain conditions or events.” Webster’s II New College Dictionary (1995), p. 818. A reasonable interpretation of the term “a period” would be any interval of time marked by the occurrence of certain conditions or events. As both “conditions or events” are plural, we think the term “a period” should not be construed as a single and uninterrupted event.

Additionally § 1-2z provides that the text of a statute is to be examined in “relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” The analysis of whether the text of a statute is ambiguous turns on “whether the statute, when read in context, is susceptible to more than one reasonable interpretation.". (Citations omitted; internal quotation marks omitted.. Thomas v. Dept. of Developmental Services, 297 Conn. 391, 399, 999 A.2d 682 (2010) as quoted in Stec v. Raymark Industries, Inc., 299 Conn. 346, 358 (2010).

Further, assuming for the moment that our application of the plain meaning rule is not a legally correct application of the initial part of § 1-2z, at the very least we are confronted with language that is “susceptible to more than one reasonable interpretation.” Id. As the above analysis and construction of “a period” conflicts with the interpretation accorded by the respondents and the trial commissioner, at the very least, the statutory term at issue is ambiguous. When confronted with language in a statute that is ambiguous our courts have advised:

The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . In seeking to determine [the] meaning [of a statute], General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes.
If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Citations omitted; internal quotation marks omitted.. Thomas v. Dept. of Developmental Services, 297 Conn. 391, 399, 999 A.2d 682 (2010). (Emphasis ours.)

Stec v. Raymark Industries, Inc., 299 Conn. 346, 358 (2010).

Having determined in the alternative that the text under consideration is ambiguous, § 1-2z permits us to consider the “legislative history and circumstances surrounding [the Act’s] enactment, [and] the legislative policy it was designed to implement.” Id. As we noted earlier the history of COLAs under our Workers’ Compensation Act has been one where noble intentions often worked at cross purposes. See e.g; Hasselt v. Lufthansa German Airlines, 262 Conn. 416, 815 A.2d 94 (2003), (weighed the objective to decrease the fiscal burden on Second Injury Fund and provide COLAs to those who sustained compensable injuries between July 1, 1993 and September 30, 1997).

Comments made at the February 11, 1997 public hearing reflect the legislature’s concerns as to the effects of removing COLAs from the Workers’ Compensation Act and the testimony by those supporting the bill that the lack of a COLA contributed to a financial hardship on those with significant injuries. See comments of Attorney Robert Sheldon, Conn. Joint Standing Committee Hearings Labor and Public Employees, Pt. 1, 1997 Sess. at 8. See also the comments of Senator Edith Prague Conn. Joint Standing Committee Hearings, supra, at 53.11 We are reminded of the broad humanitarian purpose which the Act serves. Construing the five (5) year period as one that may be satisfied by 260 weeks of total incapacity whether the weeks at that status result from a single 260 week/five (5) year period, or not, furthers the humanitarian spirit of the Act.

We believe our conclusion is also supported, inter alia, by this tribunal’s opinion in Yuille v. Bridgeport Hospital, 4525 CRB-4-02-5 (April 28, 2003). In Yuille, the claimant sustained a back injury which she alleged rendered her totally disabled for various periods which cumulatively totaled five (5) years. The board noted:

Section 31-307a(c) covers injuries occurring on or after July 1, 1993, and makes COLAs payable to employees who are totally incapacitated permanently, i.e., “adjudicated to be totally incapacitated permanently subsequent to the date of his injury or . . . totally incapacitated permanently due to the fact that the employee has been totally incapacitated by such an injury for a period of five years or more . . . .” The respondents argue that there is insufficient evidence to support the commissioner’s conclusion that the claimant has been totally disabled for more than five years (260 weeks). They observe that the medical records establish total disability for 15 2/7 weeks prior to the claimant’s January 28, 1998 back surgery, followed by another 190 6/7 weeks through the date of the last formal hearing, which totals 206 1/7 weeks. The claimant counters that the respondents provided her with a printout that reflects over 273 weeks of temporary total disability benefits paid through the September 25, 2001 hearing. (Footnote omitted; emphasis ours.)

In Yuille the board held that the trial commissioner’s conclusion that the claimant satisfied the five (5) year threshold of § 31-307a(c) was not supported by competent evidence nor did the trial commissioner articulate findings as to how he determined this prong of § 31-307a(c) was satisfied. The board stated:

[W]e must remand this case so that the periods of total disability experienced by the claimant may be better articulated. In doing so, we note the possibility that the claimant has reached five years of total disability during the intervening time period between the last formal hearing in this case and the resolution of this appeal, given that she had already been disabled for over 190 weeks as of September 2001.”

Id.

Although the matter was remanded for the purpose of allowing the development and articulation of an evidentiary basis to support the commissioner’s conclusion, given the parties’ arguments the board’s discussion may be read as supporting that the requisite five (5) year period need not be a single continuous period.

Having concluded that the language of the statute relating to the five (5) year requirement of temporary total disability need not be a single continuous period, we proceed to consider the second prong, i.e., whether a claimant must be adjudicated as being permanently totally disabled. The particular section of the statute under consideration is:

With respect to any employee receiving benefits on October 1, 1997, with respect to any such injury occurring on or after July 1, 1993, and before October 1, 1997, or with respect to any employee who was adjudicated to be totally incapacitated permanently subsequent to the date of his or her injury or is totally incapacitated permanently due to the fact that the employee has been totally incapacitated by such an injury for a period of five years or more, such benefit shall be recalculated to October 1, 1997, to the date of such adjudication or to the end of such five-year period, as the case may be, as if such benefits had been subject to recalculation annually under the provisions of this subsection. (Emphasis ours.)

Sec. 31-307a(c).

In Russell v. State/Dept. of Developmental Services/Southbury Training School, 5212 CRB-5-07-3 (March 18, 2008) this tribunal held that the provision of § 31-307a(c) referring to those claimants who were totally incapacitated for a period of five (5) years as “totally incapacitated permanently” did not create a class of claimants who were of the same status as those who qualified for benefits pursuant to § 31-307(c)12 and therefore, were relieved of the continuing burden of proving total incapacity pursuant to § 31-307(a). See also, Fiorillo v. Bridgeport, 4585 CRB-4-02-11 (December 17, 2003). The respondents contend that at no point in the proceedings below, including those before the late Commissioner Howard Belkin, was the claimant “adjudicated” as a member of this class.

In § 31-307a(c) the term “adjudicated” is followed by “to be totally incapacitated permanently subsequent to the date of his or her injury or is totally incapacitated permanently due to the fact that the employee has been totally incapacitated by such injury for a period of five years or more…” Given the use of the disjunctive term “or” we believe the legislature was identifying two (2) separate classes to whom the COLA would apply. This construction is consistent with case law providing the following:

“[The legislature’s] use of the disjunctive ‘or’ between subparts of a statute indicates that the legislature intended its parts to be read separately, in the disjunctive. Gaynor v. Union Trust Co., 216 Conn. 458, 467, 582 A.2d 190 (1990).” (Internal quotation marks omitted.) Earl B. v. Commissioner of Children & Families, 288 Conn. 163, 178, 952 A.2d 32 (2008); see also Sestito v. Groton, 178 Conn. 520, 525, 423 A.2d 165 (1979) (“[t]he use of the disjunctive ‘or’ in the statute clearly indicates that the legislature intended the parts of the statute to be separate and not cumulative”). (Emphasis ours.)

Achillion Pharmaceuticals, Inc. v. Law, 291 Conn. 525, 534 (2009). Thus, in the case at hand the claimant need not be “adjudicated” before she is entitled to a COLA pursuant to § 31-307a(c).

Finally we consider the policy implications if we did not construe the (5) five year provision as we have. Requiring a single continuous (5) five year period of total incapacity before permitting a COLA award would pose a chilling effect on a severely injured claimant’s incentive to return to work. Consider a hypothetical situation where a claimant falls off a roof sustaining fractures to his lower vertebrae, pelvis and femurs. Clearly, the time between injury and the claimant’s return to maximum medical improvement is going to be extensive. However, it is quite possible that the period of temporary total disability may be less than 5 years. Over the course of the next 15 years the claimant has periods where these injuries totally incapacitate him for several weeks or months at a time. Finally, some 15 or more years after the initial accident is it unreasonable to assume that the claimant’s temporary total disability benefit should be adjusted for a COLA. If a COLA was not permitted to those who accumulate 5 years of temporary total status the humanitarian objectives of the COLA amendment would be disserved.

We acknowledge that no matter how we construe the term “a period of five years” there is the potential for mischief on the part of both respondents and claimants. If we were to construe the term as meaning a single, continuous, five year period, there is the potential for respondents to urge claimant’s who have sustained a significant injury and have been totally disabled for an extended period of time, e.g. four year, to try and return to work. Seemingly suitable work may be found and the claimant engages in an earnest attempt to return to work. After a period of two to three weeks, the claimant’s condition is such that he cannot continue to work and is again, in the position of being totally disabled. The respondents agree and temporary total benefits are again paid to the claimant. However, because of the respondents’ experiment in returning a significantly injured claimant to work, the period of total incapacity has been interrupted. Thus, the claimant would be in a position of being totally incapacitated and required to wait another five years before being eligible for a COLA.

We also acknowledge that the potential for mischief by a claimant also exists. Given the same hypothetical as above, a claimant may be less than cooperative and willing to try and return to work if he or she believes that any attempt to return to work may be of relatively short duration. It would not be unreasonable for a claimant to perceive that if the attempt to return to work was a failure and all that would have been accomplished was demonstrable evidence that he or she remains totally disabled and is ineligible for a COLA for minimally, another 5 years.

There is no question in our minds that returning an injured worker to gainful employment is one of the foremost objectives of our Act. If through some employment accommodations or retraining a significantly injured worker has the potential to return to work, the true test of that claimant’s work capacity is found in the crucible of actually returning to work. If the claimant finds that the new employment position successfully accommodates his or her physical needs and thus, he or she can be restored to gainful employment, then one of our Workers’ Compensation Act’s goals has been achieved. Construing our Act in a way that has the potential to thwart and discourage a significantly injured worker from attempting to return to work contravenes the purpose and spirit of the Act.

Finally, we believe our conclusion is further buttressed by § 31-307b.13 Sec. 31-307b provides the methodology for calculating payments due an injured worker who suffers a relapse or recurrence of a compensable injury. That statute provides, inter alia, “The employee shall also be entitled to receive the cost-of-living adjustment provided in accordance with the provisions of section 31-307a commencing on October first following the relapse or recurrent injury which disables him or her.” If we construed § 31-307a(c) as requiring a single, continuous, five year period we have the potential of nullifying the COLA entitlement contained in § 31-307b. We believe such a result is in total contravention of the Act’s intended purpose.

We therefore reverse the February 6, 2009 Finding and Dismissal of the Commissioner acting for the First District.

Commissioner Christine L. Engel concurs.

JOHN A. MASTROPIETRO, CHAIRMAN, DISSENTING. With utmost respect I dissent from the conclusion reached by my esteemed colleagues. In its analysis supporting its reversal of the trial commissioner’s conclusion in the February 6, 2009 Finding and Dismissal of the Commissioner acting for the First District the majority references this tribunal’s opinion in Yuille v. Bridgeport Hospital, 4525 CRB-4-02-5 (April 28, 2003). The majority reads Yuille as standing for the proposition that the five year period of total incapacity at issue need not be a single continuous period. I do not share the majority’s confidence that was the decision reached in Yuille as that was not the specific issue that was argued and decided by that case. I note that the Yuille panel seemed reluctant to specifically state how the five year period was to be construed. Ultimately they remanded the matter stating the following.

[W]e must remand this case so that the periods of total disability experienced by the claimant may be better articulated. In doing so, we note the possibility that the claimant has reached five years of total disability during the intervening time period between the last formal hearing in this case and the resolution of this appeal, given that she had already been disabled for over 190 weeks as of September 2001.

Id.

However, I note that the Yuille panel also referenced other periods during which the claimant was totally incapacitated stating:

The respondents argue that there is insufficient evidence to support the commissioner’s conclusion that the claimant has been totally disabled for more than five years (260 weeks). They observe that the medical records establish total disability for 15 2/7 weeks prior to the claimant’s January 28, 1998 back surgery, followed by another 190 6/7 weeks through the date of the last formal hearing, which totals 206 1/7 weeks. The claimant counters that the respondents provided her with a printout that reflects over 273 weeks of temporary total disability benefits paid through the September 25, 2001 hearing. (Footnote omitted; emphasis ours.)

It could just as easily be argued that had the Yuille panel interpreted the five year period as permitting an accumulation of periods of total incapacity it would have instructed that the claimant had already been totally disabled for a period in excess of 206 weeks, not merely in excess of 190 weeks. In my estimation Yuille may not have ruled out the use of an accumulation of periods of total incapacity to meet the criteria of § 31-307a(c), but I do not think it can be read as establishing same. Again, that was not the specific issue that was asked to be decided in that matter.

Turning now to the actual terms of § 31-307a(c) at issue, as the majority noted our initial attempt at construing the terms of the statute is guided by § 1-2z and its counsel to accord the words of a statute their plain meaning. In addition to § 1-2z I refer to § 1-1(a) which provides:

In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.

It is the contention of the respondents that the plain meaning of “a period” is a single period. As the majority notes, “The term “a” is defined as an indefinite article and is “used before nouns and noun phrases that denote a single, but unspecified person or thing.” See Webster’s II New College Dictionary (1995), p. 1.” The majority cites case law which offers some support as to the construction of the term “a period” as something other than a single unit. I find the reasoning somewhat strained. I am of the opinion that had the legislature meant something other than a single, continuous period of five years they would have utilized language indicating same, e.g.. As an example the legislature could have stated that the COLA benefit would inure to those claimants totally incapacitated for five years. By utilizing the term “a period” as a modifier before the words “five years”, I am of the mind the legislature intended exactly what the statute states, i.e., a COLA benefit is available to a claimant who has been totally incapacitated for a single uninterrupted five year period.

Additionally, even if I were to agree with the claimant that the term at issue is ambiguous and an inquiry into the legislature’s intent is appropriate, I am not convinced that inquiry compels the conclusion the claimant seeks. In Hasselt v. Lufthansa German Airlines, 262 Conn. 416 (2003), our Supreme Court considered the provision of § 31-307a(c) requiring the Second Injury Fund to reimburse employers for COLAs. The Hasselt court was asked to construe that part of § 31-307a(c) providing;

“The employer or his insurer shall be reimbursed by the Second Injury Fund, as provided in section 31-354, for adjustments, including lump-sum payments, payable under this subsection for compensable injuries occurring on or after July 1, 1993, and before October 1, 1997, upon presentation of any vouchers and information that the Treasurer shall require.” General Statutes § 31-307a(c).

Id., at 423.

The Second Injury Fund argued that this provision should be construed as limiting its liability to only those COLAs accrued on or after July 1, 1993, and before October 1, 1997. While the holding of Hasselt is not material to this inquiry, the analysis of the court as to the legislature’s intent in P.A. 97-205 is instructive. The Hasselt court noted, inter alia, that P.A. 97-205 represented a change in legislative policy as it restored COLA benefits to a certain class of claimants. In its opinion the court also reviewed the pertinent legislative comments that accompanied consideration of P.A. 97-205. See Id., at 427-431.14 The court acknowledged that the restoration of COLAs and that part of the Act which required the Fund to reimburse employers and insurers for such payments were considered in the context of competing objectives. The first was to restore, at least to some degree, the COLA benefit. The second was to factor in concerns as to reducing Workers’ Compensation costs to business and the Second Injury Fund.

Considering all of this, the Hasselt court concluded that the construction of the terms should be accorded their commonly approved usage pursuant to § 1-1. Further, construing the terms at issue in such a manner did not disserve the legislative intent of the Act.

Returning now to the issue at hand and following the analytical rationale of Hasselt, I would conclude the trial commissioner appropriately applied the law. The testimony referenced in Hasselt recognizes the desire to restore a COLA benefit for the period between 1993 and 1997 but in such a way as to minimize the fiscal impact on employers and insurance carriers. Construing the term “a” period of five years as a single five year period is consistent with principles of statutory construction and plain language as required by § 1-2z and does not conflict with the legislative policies articulated at the time of the Act’s passage while at the same time adhering t. the broad humanitarian purpose which the Act serves. As we stated earlier there is no question that the 1991 and 1993 legislative changes to the Act were concerned with cutting Workers’ Compensation costs. Public Act 97-205 requires that a claimant satisfy certain criteria before being eligible for the COLA. From the testimony accompanying consideration of 97-205 there was a concern for the costs associated with the proposed COLA. See notes 10-12, supra. I think the legislative intent of 97-205, in part, was to recognize that initial legislation was more harsh than originally thought and therefore it was appropriate t. provide a COLA to those injured workers who sustained significant injuries after July 1, 1993. One way to accomplish that objective was to award a COLA to those who were considered permanently totally disabled pursuant to § 31-307(c) and by providing COLAs if their disability exceeded a single period of five years. By doing so the legislature recognized the need to provide a COLA adjustment to those who were least likely to return to gainful employment due to their injuries as well as the need to refrain from imposing significant costs to the system.

I also disagree with my colleagues as to the effect interpreting the statute as requiring a single uninterrupted five year period will have on § 31-307b. I think the reference to a COLA entitlement in § 31-307b should be read as permitting a COLA if the claimant’s injury occurs after 1993 and if the criteria under § 31-307(a)(c) is met.

I appreciate my colleagues concern as to the potential for mischief, however, I believe that any provision of our statute that accords one party a benefit at the expense of another party is always subject to vigorous prosecution and defense. However when such prosecutorial and defensive acts violate the spirit if not the technical aspects of our Act it is incumbent upon the commission to review such activities and assure that each party’s lawful rights are maintained.

For these reasons I respectfully dissent and would affirm the February 6, 2009 Finding and Dismissal of the Commissioner acting for the First District.

1 We note extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 See August 11, 2005 Finding and Award, ¶ H of the Commissioner acting for the First District. BACK TO TEXT

3 The 41.8% permanent partial disability to the master arm equaled 85.28 weeks of permanent partial benefits. BACK TO TEXT

4 In Marandino v. Prometheus Pharmacy, 105 Conn. App. 669 (2008) the majority noted that the evidence upon which the trial commissioner’s conclusion as to causation rested was a medical opinion of Dr. Vincent Santoro, an orthopedic surgeon, who performed two surgeries on claimant’s knee. The majority held, inter alia, that the opinion of Dr. Santoro was not a source of competent evidence. They stated:

[Dr.]Santoro’s reports provided a determination of causation without any supporting medical facts from which medical causation could reasonably be inferred. Because Santoro’s opinion regarding causation is merely a statement devoid of a basis in fact, we conclude that it was not competent evidence, but rather speculation and conjecture and, as such, could not, without more, be relied on to determine whether legal causation existed between the arm and leg injury.

Id., at 680-81. BACK TO TEXT

5 In Marandino v. Prometheus Pharmacy, 105 Conn. App. 669, 690 (2008) Judge Mihalakos wrote in his dissent that he believed Dr. Santoro’s opinion need not provide supporting medical facts in order to be competent on the issue of causation. Judge Mihalakos stated:

The conclusion reached by Santoro was unequivocal: “[The knee injury] is a direct result of her previous work related trauma and as such is a continuation of her ongoing problems.” Santoro’s opinion was clear and conclusive. There simply is no indication that his opinion was based on speculation or conjecture, rather than on a reasonable probability. Whether he had a factual basis for making his conclusion is a different inquiry that is properly viewed as a preliminary question of admissibility. The defendants, however, did not question the factual basis for Santoro’s conclusion. Once Santoro’s report was admitted, the commissioner was entitled to give the report whatever weight he believed was appropriate in light of the report’s unknown foundation. I would find that Santoro’s clear and unequivocal conclusion was competent evidence on which the commissioner could rely. (Citations omitted.) BACK TO TEXT

6 We note that Justice Katz and Chief Justice Rogers joined the majority by a joint concurrence. See Marandino v. Prometheus Pharmacy, 294 Conn. 564, 597 (2010). BACK TO TEXT

7 Sec 31-307a(c) provides:

On and after October 1, 1997, the weekly compensation rate of each employee entitled to receive compensation under section 31-307 as a result of an injury sustained on or after July 1, 1993, which totally incapacitates the employee permanently, shall be adjusted as provided in this subsection as of October 1, 1997, or the October first following the injury date, whichever is later, and annually on each subsequent October first, to provide the injured employee with a cost-of-living adjustment in his or her weekly compensation rate as determined as of the date of injury under section 31-309. If the maximum weekly compensation rate, as determined under the provisions of said section 31-309, to be effective as of any October first following the date of the injury, is greater than the maximum weekly compensation rate prevailing as of the date of injury, the weekly compensation rate which the injured employee was entitled to receive as of the date of injury shall be increased by the percentage of the increase in the maximum weekly compensation rate required by the provisions of said section 31-309 from the date of the injury to such October first. The cost-of-living adjustments provided under this subdivision shall be paid by the employer without any order or award from the commissioner. The adjustments shall apply to each payment made in the next succeeding twelve-month period commencing with October 1, 1997, or the October first next succeeding the date of injury, whichever is later. With respect to any employee receiving benefits on October 1, 1997, with respect to any such injury occurring on or after July 1, 1993, and before October 1, 1997, or with respect to any employee who was adjudicated to be totally incapacitated permanently subsequent to the date of his or her injury or is totally incapacitated permanently due to the fact that the employee has been totally incapacitated by such an injury for a period of five years or more, such benefit shall be recalculated to October 1, 1997, to the date of such adjudication or to the end of such five-year period, as the case may be, as if such benefits had been subject to recalculation annually under the provisions of this subsection. The difference between the amount of any benefits which would have been paid to such employee if such benefits had been subject to such recalculation and the actual amount of benefits paid during the period between such injury and such recalculation shall be paid to the dependent not later than December 1, 1997, or thirty days after such adjudication or the end of such period, as the case may be, in a lump-sum payment. The employer or the employer’s insurer shall be reimbursed by the Second Injury Fund, as provided in section 31-354, for adjustments, including lump-sum payments, payable under this subsection for compensable injuries occurring on or after July 1, 1993, and before October 1, 1997, upon presentation of any vouchers and information that the Treasurer shall require. No claim for payment of retroactive benefits may be made to the Second Injury Fund more than two years after the date on which the employer or its insurance carrier paid such benefits in accordance with this subsection. BACK TO TEXT

8 It should be noted that in Finding, ¶ 9 the trial commissioner found that “if all periods of total disability paid to date are considered the claimant has been paid more than 260 weeks of total disability.” BACK TO TEXT

9 Paragraphs B and C of the February 6, 2009 Finding and Dismissal provide:

B) Claimant has not received Temporary Total Disability Benefits for any single period of five years or more.

C) The Claimant has not been adjudicated as being permanently and totally disabled. BACK TO TEXT

10 Sec. 1-2z C.G.S. (P.A. 03-154, S.1.) states: “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” BACK TO TEXT

11 Senator Prague stated:

“I want to ask you a question about my concern in HB 6627-If we take COLA[s] from widow and orphans and disabled workers who are 100 % disabled I really think that borders on being inhuman....” BACK TO TEXT

12 Sec. 31-307(c) provides: The following injuries of any person shall be considered as causing total incapacity and compensation shall be paid accordingly: (1) Total and permanent loss of sight of both eyes, or the reduction to one-tenth or less of normal vision; (2) the loss of both feet at or above the ankle; (3) the loss of both hands at or above the wrist; (4) the loss of one foot at or above the ankle and one hand at or above the wrist; (5) any injury resulting in permanent and complete paralysis of the legs or arms or of one leg and one arm; (6) any injury resulting in incurable imbecility or mental illness. BACK TO TEXT

13 Sec. 31-307b. Benefits after relapse from recovery. Recurrent injuries. If any employee who receives compensation under section 31-307 returns to work after recovery from his or her injury and subsequently suffers total or partial incapacity caused by a relapse from the recovery from, or a recurrence of, the injury, the employee shall be paid a weekly compensation equal to seventy-five per cent of his or her average weekly earnings as of the date of the original injury or at the time of his or her relapse or at the time of the recurrence of the injury, whichever is the greater sum, calculated pursuant to section 31-310, after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act made from such employee’s total wages received during the period of calculation of the employee’s average weekly wage pursuant to said section 31-310, but not more than (1) the maximum compensation rate set pursuant to section 31-309 if the employee suffers total incapacity, or (2) 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 the employee suffers partial incapacity, for the year in which the employee suffered the relapse or recurrent injury and the minimum rate under this chapter for that year, and provided (A) the compensation shall not continue longer than the period of total or partial incapacity following the relapse or recurrent injury and (B) no employee eligible for compensation for specific injuries set forth in section 31-308 shall receive compensation under this section. The employee shall also be entitled to receive the cost-of-living adjustment provided in accordance with the provisions of section 31-307a commencing on October first following the relapse or recurrent injury which disables him or her. If the injury occurred originally prior to October 1, 1969, the difference between the employee’s original weekly compensation rate and the rate required by this section and the cost-of-living adjustment, if any, thereafter due shall be paid initially by the employer or the employer’s insurance carrier who shall be reimbursed for such payment from the Second Injury Fund as provided by section 31-354 upon presentation of any vouchers and information that the Treasurer shall require. No claim for payment of retroactive benefits may be made to the Second Injury Fund more than two years after the date on which the employer or its insurance carrier paid such benefits in accordance with this section. In no event shall the employee receive more than the prevailing maximum compensation. BACK TO TEXT

14 Particularly of interest are footnotes 10-12 of Hasselt v. Lufthansa German Airlines, 262 Conn. 416, 428-429 (2003) which state:

[fn10] Kehmna stated, when addressing the change from the insurance carriers’ pre-1997 legal obligations, in which they had no liability for 1993-1997 COLAs: “We cannot collect a premium for a COLA that does not exist, but the basis of how we calculate premiums and how the Insurance Department approves what we charge, this is a prior approval line of business. We cannot reach back and correct a mistake that we made. If we make a bad guess as to what our exposure is in 1997, in 1998 we can’t reach back and say, ‘hey, we want to make up for our mess up there.’ No. Sorry. It’s done. You collect the premiums in 1997 for the accidents that occur in that year regardless of when they are actually paid out. “So for example, if you have a benefit that’s paid out over a ten year period or a twenty year period, for an accident that occurred in 1997, you collected [a] premium in that year to cover those costs. I cannot, my members cannot, if you pass a COLA bill that applies to ‘93 to ‘97, cannot go back in 1998 and say, ‘I need to collect more dollars for the ‘93 to ‘97-98 period.’ That’s not how the rating mechanism works. “I would refer you to, I believe, [General Statutes §§] 31-306 and 31-307a which show in 1977 and 1969, when this type of similar benefit was created, there was a way, the state came up with a way to reimburse the insurer or employer for that new COLA because they had reached back and created something retroactively.” Conn. Joint Standing Committee Hearings, supra, pp. 61-62.

[fn11] During the committee hearings, the following exchange occurred between Kehmna, Representative Christopher G. Donovan and Senator Edith G. Prague:

“[Kehmna]: I would encourage you to look at lists, or examples which are replete through the Workers’ Compensation Act. The Legislature in its wisdom as a matter of social policy has created a benefit and given it retroactive application. The Legislature did not ask the insurance community or the employer community to pay for something that was not [in existence] when they reached back. It’s a simple matter of fairness.” [Representative Donovan]: I’m sure we can work out a plan to deal with that. “[Senator Prague]: Fairness. It’s a good word. That’s a very good word.” Conn. Joint Standing Committee Hearings, supra, p. 65.

[fn12] In regard to the fiscal impact, Representative Donovan stated:

“Yes Mr. Speaker there is a fiscal impact. The main impact is to the . . . fund.” 40 H.R. Proc., supra, p. 5180. He further noted a potential impact on municipalities. Id., pp. 5181-82.

Representative O’Rourke stated: “For those of you who are worried, the impact is extremely low on workers’ comp[ensation] benefits — workers’ comp[ensation] insurance rates — excuse me.” Id., p. 5196. BACK TO TEXT

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