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

CASE NO. 5677 CRB-4-11-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 15, 2012

JOZEF LEWIS

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/DEPARTMENT OF CORRECTION

EMPLOYER

SELF-INSURED

and

BERKLEY ADMINISTRATORS

ADMINISTRATOR

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Barry S. Moller, Esq., Cramer & Anderson, LLP, PO Box 278, Litchfield, CT 06759.

The respondents were represented by William C. Brown, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review from the July 29, 2011 Finding and Decision of the Commissioner acting for the Fifth District was heard January 20, 2012 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jodi Murray Gregg and Daniel E. Dilzer.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have appealed from a Finding and Decision granted to the claimant in this case. The trial commissioner in this matter determined that the claimant was entitled to incremental increases in his benefits pursuant to § 5-142(a) C.G.S., during the first five years after he was deemed totally disabled due to a compensable hazardous duty injury. The respondents argued that they should be excused from such adjustments as the claimant had entered the “inactive payroll” and had not presented a claim for such adjustments in a timely manner to the trial commissioner. The trial commissioner rejected this argument, and determined such adjustments were owed to the claimant. The commissioner further determined the respondents had engaged in undue delay and unreasonable contest, and determined further hearings were necessary to ascertain if sanctions should be levied against the respondents for their conduct.

The respondents have appealed from this Finding and Decision. We are not persuaded by the respondents’ argument that the statute herein does not require the payment of adjustments, finding the “plain meaning” of the statute makes such adjustments obligatory. We affirm the Finding and Decision.

The trial commissioner reached the following findings at the conclusion of the formal hearing in this case. The claimant was employed as a correction officer by the State of Connecticut on December 14, 1995. On that date, the claimant was responding to a Code Orange alarm, which indicates that a correction officer is being assaulted. The claimant suffered injuries to his left wrist, right ankle, and eye as a result of an altercation with an inmate at that time. The claimant resigned from the Department of Correction effective February 16, 1996. On September 12, 1997, the claimant was determined to be totally disabled.

A voluntary agreement was not reached in this matter until December 1, 2000. This voluntary agreement accepted the injury as compensable under § 5-142(a) C.G.S., and established a compensation rate for total incapacity of $536.23. The claimant was totally disabled, on and off, for a period of 260 weeks beginning September 12, 1997. From September 12, 1997, forward, at different times, the claimant received weekly temporary total disability benefits of $536.23. In May of 2008, the claimant’s weekly benefits were cut by 50 percent at the expiration of his 260th week of temporary total benefits to $268.00.

The trial commissioner found the claimant never received incremental increases for the five years he was totally incapacitated as directed by § 5-142(a) C.G.S. The commissioner also found the claimant was never advised that the respondents were not going to pay all benefits pursuant to C.G.S. § 5-142(a); nor had the respondents ever filed a Form 36 advising the claimant and the commission as to their position regarding the hazardous duty statute.

Based on these subordinate facts the trial commissioner concluded the claimant sustained compensable injuries to his right eye, left wrist, and left ankle in the course of employment on December 14, 1995, pursuant to § 5-142(a) C.G.S., and never waived any benefits in regard to § 5-142(a) C.G.S., when he resigned on February 16, 1996. The trial commissioner found the claimant a fully credible and persuasive witness. He found the claimant to be entitled to all benefits contained in § 5-142(a) C.G.S., including the incremental increases due, as well as all salary adjustments. The commissioner found it took the respondents almost 12 years from the date of injury to attempt to make the proper adjustments in this matter; and at no time had they ever filed a Form 36 reducing benefits in regard to this matter or advised the claimant as to their position in regard to § 5-142(a) C.G.S. The commissioner also found the respondents had not advised the claimant or commission of their position when the voluntary agreement was executed. The commissioner ordered all benefits pursuant to § 5-142(a) C.G.S., paid to the claimant, including all incremental increases due, as well as salary adjustments in regard to temporary total disability benefits to date. The commissioner set down the issue of sanctions for future hearings.

The respondents filed a Motion to Correct seeking thirteen separate corrections. The trial commissioner granted three corrections which did not materially change the relief ordered in the Finding and Decision. The respondents have pursued this appeal with their argument being that since the claimant had entered the “inactive payroll” that this status somehow exempted the respondents from making annual increment adjustments so as to align the claimant’s compensation with the compensation paid to active personnel. We note that the respondents failed to cite a single reported appellate court or compensation review board decision for their position on appeal. Instead, the respondents rely on a single sentence attributed to an Assistant Attorney General who spoke in favor of a statutory revision in 1949.1 We note that since that time the General Assembly has enacted § 1-2z C.G.S., which requires us to apply the “plain meaning” of a statute’s provisions to the interpretation of a statute. We do not believe the “plain meaning” of § 5-142(a) C.G.S., supports the respondents’ theory.

The relevant language of the hazardous duty disability statute reads as follows:

a) If any member of the Division of State Police within the Department of Public Safety or of any correctional institution sustains any injury (1) while making an arrest or in the actual performance of such police duties or guard duties or fire duties or inspection duties, or prosecution or public defender or courthouse duties, or while attending or restraining an inmate of any such institution or as a result of being assaulted in the performance of such person’s duty, or while responding to an emergency or code at a correctional institution, 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. Such person shall continue to receive the full salary that such person 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 that such person was receiving at the expiration of said two hundred sixty weeks as long as such person remains so disabled.

We note that the statute states that once an employee is placed on the “inactive payroll” that person shall “continue to receive the full salary that such person was earning at the time of injury,” as well as “all salary adjustments.” (Emphasis added.) We note that the word “shall” has generally been defined as delineating a mandatory obligation. See Wiseman v. Armstrong, 295 Conn. 94 (2010). “Definitive words, such as must or shall, ordinarily express legislative mandates of nondirectory nature.” (Internal quotation marks omitted.) State v. Pare supra, 253 Conn. 623. As we recently noted “the word shall creates a mandatory duty when it is juxtaposed with [a] substantive action verb.” (Internal quotation marks omitted.) Rainforest Cafe, Inc. v. Dept. of Revenue Services, supra, 293 Conn. 376.”

Id., at 101.

We also look to the “plain meaning” of the word “payroll.” The respondents argue that the term “active payroll” and “inactive payroll” mean very different things and a member of the inactive payroll is not entitled to future adjustments, notwithstanding what appears to be an unambiguous obligation on the part of the employer to provide such adjustments. The definition of “payroll” does not support this concept. It is defined as “[a] list of employees to be paid and the amount due to each of them.” Black’s Law Dictionary, 8th edition, p. 1186. It appears the difference between “active payroll” and “inactive payroll” constitutes whether the person in question is on a list of employees anticipated to be available for work; and nothing more. While we do not find C.G.S. § 5-142(a) ambiguous and believe the “plain meaning” supports the trial commissioner’s conclusions; the respondents ask that we examine the legislative history. We have done so and are not persuaded by the respondents’ strained statutory construction.

We note that Public Act 352, enacted in 1949, superseded what was then Section 419 of the General Statutes. That provision had been enacted in 1939 and stated that employees of the state police, a mental institution or a correctional institution “shall be continued on the payroll” for 260 weeks if they suffered total disability as a result of an injury due to an assault, making an arrest, or restraining an inmate. A decade later, this legislation was extensively revised by the General Assembly. The legislation changed the definition of those covered by this statute from “employee” to “member” and also added officers of the state board of fisheries and game; as well as the motor vehicle department to the covered class of workers. The legislation also broadened coverage to injuries sustained “in the actual performance of such police or guard duties.” Our review of the record of the General Assembly’s Public Personnel Committee, as well as the floor statements of the House of Representatives, evinces no intent that the bill adopted, H.B. No. 767, acted to remove or limit existing coverage from the law. Indeed, the entire thrust of the bill was to expand coverage to more workers under more circumstances. The Amendment schedule “A” adopted by the House and offered by the bill’s sponsor, Representative Braman of Middlebury, specifically added the terms entitling a totally disabled employee to full salary for 260 weeks including annual increments and all salary adjustments.2

The principles of statutory construction argue in favor of the plain meaning of the statute. “[I]n determining the meaning of a statute . . . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction . . . . In applying these principles, we are mindful that the legislature is presumed to have intended a just and rational result.” Teresa T. v. Ragaglia, 272 Conn. 734, 748 (2005). The respondents focus on the definition of the word “payroll” does not advance their argument. We must look to § 1-1(a) C.G.S., which states “[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language.” Weber v. U.S. Sterling Securities, 282 Conn. 722, 732 (2007). When one reviews the statement of Assistant Attorney General Thomas J. Conroy, relied on by the respondents in the context of the ordinary usage of the word “payroll,” and in the context of the rest of the legislation as it was actually adopted by the General Assembly, it is apparent the intent herein was not what the respondents claim.

Instead of creating a separate and distinct class of injured workers in an undefined “inactive payroll” which were to be dealt with in a different manner than those on the “active payroll”; the more logical conclusion herein is that this legislation was adopted simply for administrative imperatives to permit state agencies to replace injured workers who were not anticipated to return to active service. Public Act 352 simply allowed those state agencies that employed workers engaged in hazardous duty to place those on the payroll who were deemed totally disabled on an “inactive payroll.” Neither the plain meaning of the Act nor its legislative history support any other reasonable interpretation.3 “The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838, 847 (2008); see also, Carmel Hollow Associates Ltd. Partnership v. Bethlehem, 269 Conn. 120 (2004). The trial commissioner applied the only reasonable interpretation of § 5-142(a) C.G.S.

The respondents argue that as the claimant resigned from state service at a date prior to his total disability that this removed his eligibility for further salary adjustments. We find no statutory authority for this position. We note that the resignation letter entered into evidence only caused the claimant to relinquish his right to return to his job at the Department of Correction.4 The letter was silent on all other points. Subsequent to the claimant’s resignation, the respondents executed a voluntary agreement with the claimant. See Commissioner’s Exhibits 1 and 2. Said agreement was also silent on the claimant relinquishing any rights to salary adjustments. The record herein supports the trial commissioner’s conclusion that the claimant was never advised that the respondents would not provide statutory salary adjustments.5

The respondents’ argument herein also appears inconsistent with an opinion of the Attorney General issued in 1990 interpreting § 5-142(a) C.G.S. In interpreting the interplay between § 5-142(a) C.G.S., § 5-257 C.G.S., and § 31-284(b) C.G.S., the Attorney General opined that someone who was being compensated for a work related disability as an inactive state employee was entitled to the same benefits as those offered to active state employees. “Therefore, we conclude that the life insurance provisions of Sec. 5-257 for active state employees apply to those inactive employees receiving disability compensation under Chapter 65 of the General Statutes.”6

We do wish to clarify one point where we believe the claimant and the trial commissioner may have misinterpreted the applicable law. The trial commissioner in the Finding and Decision noted in Conclusion, ¶ H, that the respondents never filed a Form 36 in this matter advising the claimant and commission of their intent to reduce or discontinue benefits. As the benefits due the claimant pursuant to statute, including the salary increments, were due to him by operation of law, we do not believe the issue of a Form 36 is particularly dispositive of the issues herein.7 This reasoning also applies to the required reduction of benefits to the claimant to 50 percent of full salary after 260 weeks of disability, since that also occurs by operation of law. This rationale also addresses the respondents’ argument that the claimant should not be barred by the doctrine of laches from seeking relief. If the claimant is due benefits by operation of law, it would appear inequitable to penalize him for belatedly realizing his employer failed to follow the law.

In addition, we find the respondents’ reliance on Kalinowski v. Meriden, 5028 CRB-8-05-11 (January 24, 2007), to be devoid of merit. In Kalinowski, we pointed out “[a] conclusion that a plaintiff has been guilty of laches is one of fact for the trier and not one which can be made by this court, unless the subordinate facts found make such a conclusion inevitable as a matter of law” citing Tinaco Plaza, LLC v. Freebob’s, Inc., 74 Conn. App. 760, 776 (2003). The respondents raised the issue of laches in their November 16, 2011 trial brief. The trial commissioner rejected this argument in his Finding and Decision. We will not contravene Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988), by retrying facts on appeal.8

The issue of determining facts also goes to the issue of whether sanctions are warranted in this matter. A party may not be sanctioned unless there is a factual predicate that supports the imposition of sanctions. McFarland v. Dept. of Developmental Services, 115 Conn. App. 306, 323 (2009). The trial commissioner in the present matter determined that the claimant was entitled to all benefits pursuant to § 5-142(a) C.G.S., Conclusion, ¶ C, and the respondents took almost twelve years to attempt to make proper adjustments in this matter, Conclusion, ¶ I. The commissioner could have found that in the absence of justification that this constituted “undue delay” under § 31-288 C.G.S. The commissioner further found the respondents had never brought this dispute previously to the Commission for adjudication. Conclusions, ¶¶ G and H. We believe this provides proper foundation to find the present contest unreasonable pursuant to § 31-300 C.G.S.

We believe the case of Wikander v. Asbury Automotive Group, 5586 CRB-4-10-9 (September 8, 2011), is on point. In Wikander, the respondents failed to file a timely disclaimer to a claim, and then advanced legal arguments they subsequently abandoned prior to the hearing. The trial commissioner sanctioned the respondents, and they appealed. We upheld the sanctions for the following reasons. “Failure to adhere to an unambiguous statutory obligation is not a complex issue which excuses a respondent’s delay. While the imposition of an award for attorneys’ fees following preclusion is indeed a “harsh remedy”, West, supra.; we find the Supreme Court has specifically encouraged this Commission to impose harsh remedies when respondents fail to file disclaimers or commence payment as mandated by statute. Harpaz, supra, 120-121, footnote, ¶ 13, pp. 130-131.” Id. The respondents in this matter similarly failed to adhere to a statutory obligation. We find no abuse of discretion should sanctions be levied following a violation of statute. As noted, such sanctions will be the subject of additional hearings and may be addressed at such time before the trial commissioner.

The claimant has asked us to review Courtright v. State/Connecticut Valley Hospital, 3573 CRB-6-97-4 (June 5, 1998), asserting the reasoning in that case is relevant to the present case. We have done so, as well as review the lodestar Supreme Court cases on § 5-142(a) C.G.S., Jones v. Mansfield Training School, 220 Conn. 721 (1992) and Trinkley v. Ella Grasso Regional Center, 220 Conn. 739 (1992). In the present case the voluntary agreement clearly delineates the claimant made an election of benefits for § 5-142(a) C.G.S. benefits. The other side of this transaction is clearly the respondents were obligated to perform its obligations pursuant to the statute. That it failed to do.

In Courtright, this tribunal denied the claimant’s bid to reopen a voluntary agreement so that she could obtain cost-of-living increases by means of § 31-307a C.G.S., from the point after she was reduced pursuant to § 5-142(a) C.G.S. to 50 percent of her full salary. In reliance on Trinkley, we determined such COLA’s were inconsistent with the definition of “full salary” in that case. We held the claimant to the terms of the statute and the voluntary agreement. Our analysis in the concurring opinion in Courtright, however, is also relevant to the issues at hand as the rationale for the statute was discussed.

It is self-evident that the legislature intended to reward individuals engaged in the high-risk state service jobs listed in § 5-142(a) by entitling them to full pay if they became incapacitated during the performance of their duties. Rather than giving such employees carte blanche to collect full salary indefinitely, however, the lawmakers limited the availability of full pay under § 5-142(a) to a 260-week period. Anyone choosing to receive benefits under § 5-142(a) rather than the Workers’ Compensation Act thus ran the risk that her disability would last longer than five years, and that she would only be entitled to compensation equaling half her regular salary for the remainder of her incapacity. That is the trade-off that a state employee makes by electing benefits under § 5-142(a).
During the first 260 weeks of benefits under § 5-142(a), a claimant is entitled 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.” Afterward, the claimant is 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.” Given that the legislature’s goal was clearly to reward state employees for accepting the risky duties of the jobs listed in § 5-142(a), it would be illogical to presume that lawmakers sought to penalize the most severely injured workers using the same statute.

Id.

The trial commissioner’s Finding and Decision properly applied the law and is consistent with the precedent in Courtright, supra.9 10 We therefore affirm the Finding and Decision.

Commissioners Jodi Murray Gregg and Daniel E. Dilzer concur in this opinion.

1 See Joint Standing Committee Hearing, Public Personnel Committee, April 20, 1949, p. 67. BACK TO TEXT

2 See H-5 House Proceedings, Vol. 3, 1949 special session, June 8, 1949, pp. 395-397. BACK TO TEXT

3 It is a principle of statutory construction that legislation must be read based on what it actually says, not what a party believes the legislature meant to say. See State v. Rupar, 293 Conn. 489, 511 (2009), citing Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672, 682-683 (2006). BACK TO TEXT

4 See Respondents’ Exhibit 1. The record reflects that the claimant’s resignation was sought due to a disciplinary dispute with prison management. See October 25, 2010 Transcript, pp. 34-42. While the respondent argues that fully compensating an employee disabled due to a work injury who is later discharged is adverse to public policy, Respondents’ Brief pp. 7-8, the respondents provide no statutory or appellate authority documenting this opinion. BACK TO TEXT

5 The respondents’ position appears inconsistent with the “date of injury” rule wherein a claimant’s rights are established based on the law and his status at the time injury is sustained. See Attorney General’s opinion to Comptroller Nancy Wyman, March 3, 2000. BACK TO TEXT

6 See Attorney General’s opinion to Comptroller J. Edward Caldwell, June 8, 1990. BACK TO TEXT

7 A Form 36 would be applicable to reduce or discontinue benefits in the event the claimant ceased to be totally disabled. See Strycek v. State/Mansfield Training School, 14 Conn. Workers’ Comp. Rev. Op. 32, 1765 CRB-2-93-6 (May 4, 1995). The record does not reflect the respondents alleging the claimant regained a work capacity during the period he was receiving benefits. BACK TO TEXT

8 We can also distinguish Kalinowski v. Meriden, 5028 CRB-8-05-11 (January 24, 2007), as the claimant in that matter sought to reopen a previously litigated Finding and Award, and we upheld the trial commissioner’s conclusion that such relief was barred due to res judicata. In the present matter, there was no prior litigation involving the payment of annual increments. BACK TO TEXT

9 The respondents argue that the Finding and Decision is in contravention of collective bargaining agreements, and would cause “impossibility of performance.” Respondents’ Brief, p. 5. As no such agreement was specifically cited by the respondents in their brief or brought to the tribunal’s attention; we cannot review this amorphous claim on appeal. BACK TO TEXT

10 The respondents cited the denial of their Motion to Correct as grounds for appeal. We find no error. Those corrections sought to interpose the respondents’ conclusions as to the law and the facts presented Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). We conclude the trial commissioner did not find these arguments persuasive. Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008). BACK TO TEXT

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