State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Arsenault v. City of Shelton

CASE NO. 5679 CRB-4-11-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 6, 2012

RICHARD ARSENAULT

CLAIMANT-APPELLEE

v.

CITY OF SHELTON

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

WORKERS’ COMPENSATION TRUST

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Andrew J. Morrissey, Esq., Morrissey, Morrissey & Mooney, LLC, 203 Church Street, P.O. Box 31, Naugatuck, CT 06770.

The respondent was represented by Kevin M. Blake, Esq., Welch, Teodosio, Stanek & Blake, LLC, 375 Bridgeport Avenue, Shelton, CT 06484.

This Petition for Review from the August 26, 2011 Finding and Award of the Commissioner acting for the Fourth District was heard on 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 respondent has petitioned for review from the August 26, 2011 Finding and Award of the Commissioner acting for the Fourth District. We find no error and accordingly affirm the decision of the trial commissioner.1

The trial commissioner, noting that the sole issue for consideration in this matter is the claimant’s entitlement to post-specific benefits pursuant to § 31-308a C.G.S., made the following factual findings which are pertinent to our review.2 On August 12, 2008, Joseph Robert Anthony, M.D., a cardiologist who treated the claimant, sent correspondence to claimant’s counsel indicating that a cardiac catheterization performed on the claimant on April 18, 2007 had revealed “significant” blockages in the claimant’s coronary arteries. Claimant’s Exhibit A. Following the catheterization, the claimant underwent two coronary artery angioplasties with stent insertion. On March 31, 2010, Stephen Marshalko, M.D., Ph.D., the claimant’s treating cardiologist, issued a letter stating that the claimant “should not perform full duties of a police officer on a regular basis because it may be detrimental to his overall cardiovascular health.” Claimant’s Exhibit B. The claimant testified that he retired from his position as a police captain with the City of Shelton after having served in the police department for twenty-five years. The claimant indicated that one of the reasons he retired was because he was concerned about his cardiac condition, and he also testified that there was no light duty available with the Shelton police department. The claimant was hired in July 2009 as a training officer at the Connecticut Police Training Academy in Meriden. He works forty hours a week and is not required to carry a weapon.

The parties stipulated that the individual currently serving as police captain for the City of Shelton earned an annual salary of $92,871.62 for calendar year 2010, which equates to an average weekly wage of $1,785.99 and a compensation rate of $1,005.00. In addition, the parties stipulated that the claimant earned $59,891.19 as a police training officer for calendar year 2010, equating to an average weekly wage of $1,151.75 and a compensation rate of $702.26. The claimant is seeking a wage differential of $302.74 based upon the loss of income due to his inability to remain in his position as a police captain for the City of Shelton. In 2010, the claimant received a service pension of $48,000.00 from the City of Shelton but contends that the service pension should not be included with his earnings from the Connecticut Police Training Academy in calculating whether he is entitled to temporary partial disability benefits pursuant to § 31-308a C.G.S. The respondent contends that the claimant’s pension should be included in these calculations because the claimant decided to retire based on his inability to continue to perform the duties of a police officer but chose not to elect a disability retirement pension. The respondent argues that if the claimant’s pension earnings were included, the claimant would not be eligible for § 31-308a C.G.S. benefits.

The trial commissioner took administrative notice of an accepted award pursuant to § 7-433c C.G.S. reciting a date of injury of January 31, 2006, which paid the claimant for a total of 228.8 weeks predicated on a permanent partial disability rating of forty-four percent of the heart. Noting that he found the claimant credible and persuasive, the trial commissioner determined that although the claimant is employed fulltime and has maximized his earnings based on his prior experience and training, the claimant has experienced a decrease in earnings due to his compensable condition. The trial commissioner concluded that pursuant to Rinaldi v. Enfield, 82 Conn. App. 505 (2004), the claimant’s earnings from his service pension through the City’s Municipal Employees Retirement Fund may not be included in the calculations for temporary partial disability benefits under § 31-308a C.G.S. The trial commissioner therefore determined that the claimant was eligible for such benefits in the amount of $302.74 per week for a period of 228.8 weeks, which amount equals the weekly compensation rate paid to a Shelton police captain in 2010 of $1005.00 minus the claimant’s weekly compensation rate of $702.26 generated by his work as a state police training officer.

The respondent filed a Motion to Correct which was denied in its entirety, and this appeal followed. On appeal, the respondent asserts that the trial commissioner’s decision to disregard the claimant’s service pension earnings in calculating the claimant’s eligibility for temporary partial disability payments constituted error. The respondent contends that the trial commissioner’s reliance on Rinaldi, supra, in deciding this matter is problematic because it puts the instant claimant in a better financial position than if he had simply continued his employment as a police captain for the City of Shelton. As such, the respondent contends that the analysis of the instant claimant’s entitlement to temporary partial disability benefits is more properly governed by this board’s decision in Iannarone v. State/Department of Mental Retardation, 4138 CRB-7-99-10 (June 15, 2001) wherein we held that the claimant’s retirement disability pension should be included in the calculations for temporary partial disability benefits pursuant to § 31-308a C.G.S.

The standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions is well-settled. The trial commissioner’s factual findings and conclusions must stand unless they are without evidence, contrary to law or based on unreasonable or impermissible factual inferences.” Russo v. Hartford, 4769 CRB-1-04-1 (December 15, 2004), citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Moreover, “[a]s with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Burton v. Mottolese, 267 Conn. 1, 54 (2003). “This presumption, however, can be challenged by the argument that the trial commissioner did not properly apply the law or has reached a finding of fact inconsistent with the evidence presented at the formal hearing.” Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007).

As noted, the respondent has asserted that the trial commissioner erroneously relied upon Rinaldi, supra, rather than Iannarone, supra, in reaching his determination that the instant claimant’s retirement earnings should be omitted from the calculations designed to determine whether the claimant is entitled to temporary partial disability benefits. In essence, the respondent asserts that the type of pension received by the claimant should not be the dispositive factor in determining whether the claimant is eligible for temporary partial disability benefits because the instant claimant’s retirement and concomitant pursuit of such benefits was predicated on a medical condition. However, in light of the Appellate Court’s reasoning to the contrary in Rinaldi, supra, we are not so persuaded.

In Rinaldi, the respondent municipality challenged this board’s reversal of the trial commissioner’s decision to include the retirement earnings of the claimant, a former police officer, in the calculation of his temporary partial disability payment rate. Similar to the case at bar, the Rinaldi claimant had chosen to retire due to a heart condition which was the “catalyst” for his eligibility for benefits under the heart and hypertension statutes. Appellant’s Brief, p. 3. For his part, the Rinaldi claimant crossappealed, contending, inter alia, that this board improperly applied the cap pursuant to § 7-433b (b) C.G.S. to the combination of his § 31-308a C.G.S. benefits and retirement pension.3 The Appellate Court affirmed the board’s reversal of the trial commissioner’s decision to include the retirement earnings, stating:

The language of the statute justifies the exclusion of retirement and social security benefits from the calculation of a § 31-308a award. The statute focuses on the injured party’s training, injuries and experience; in essence, the ability of the injured party to generate money in the future, not what funds the injured party previously has secured through work. For example, the statute does not mention that the commissioner, when conducting an analysis under the statute, should look to the injured party’s personal savings or private retirement plans.

Id., at 513.

The Appellate Court specifically rejected the Rinaldi respondent’s argument that the decision should be governed by Iannarone, supra, stating that “Iannarone is distinguishable from the present case ... because the plaintiff is receiving a retirement pension, rather than a disability pension.” Id. The court essentially concurred with this board’s analysis that a retirement pension “neither reflects the claimant’s earning capacity, nor does it constitute an attempt by an employer to compensate a claimant for his inability to continue earning wages due to an injury. Instead, it is payable pursuant to a separate contractual provision that is wholly unrelated to the amount a claimant is currently able to earn.” Id., at 512, quoting Rinaldi v. Enfield, 4459 CRB-1-01-11 (December 27, 2002), aff’d, 82 Conn. App. 505 (2004). The court concluded that “disability retirement pensions are different from regular retirement pensions and, as such, may be treated differently in the context of § 31-308a.” Id., at 514. Relative to the Rinaldi respondent’s argument that this board’s decision “violated” the policy prohibiting double recovery because the claimant would receive more in benefits than an employed police officer, the court noted that the decision “explicitly caps the plaintiff’s recovery by importing the limitation of § 7433b (b) to a recovery pursuant to § 31-308a. With the cap, there is no potential for a windfall.” Id. While the court did recognize that the potential for double recovery might exist in a claim brought pursuant to chapter 568 rather than the heart and hypertension statutes, the court declined to speculate regarding such a scenario, noting that “[j]urisprudential considerations require that we address the case before us and refrain from ruling on hypothetical situations.”4 Id., at 515.

Turning to the matter at bar, we note at the outset that the record before us simply does not provide an adequate basis for distinguishing this matter from Rinaldi and reversing the decision of the trial commissioner. While the respondent employer has clearly indicated that it finds the trial commissioner’s decision objectionable, it has not furnished, and we fail to discern, a sufficient rationale for disregarding precedent that is almost exactly on point. In addition, we reject the respondent’s premise that the trier’s decision to omit the claimant’s retirement pension benefits from the temporary partial disability calculations in any way constituted a public policy violation. As was the case in Rinaldi, supra, the instant claimant elected to receive a service-connected retirement pension pursuant to an agreement with the employer presumably reached as a result of the collective bargaining process. This board is not empowered to disturb contractual arrangements which are outside the purview of the Workers’ Compensation Act. Moreover, had the claimant remained uninjured, taken his service-connected retirement in the normal course of business, and then gone on to find post-retirement employment which compensated him at a rate equal to or greater than the compensation he had received pre-retirement, such a scenario would most likely be viewed as a fortuitous turn of events rather than any sort of transgression against public policy. Were we to adopt the respondent’s reasoning and deprive an injured employee of the differential between what he is making post-injury and what he would have made had he not been injured simply because he is also drawing a service-connected pension, we would in effect be penalizing an employee for having been injured, a result that would not only result in a truly significant public policy violation but would also be totally inconsistent with the remedial nature of the Workers’ Compensation Act.

The respondent also filed a Motion to Correct which was denied in its entirety. Our review of the proposed corrections indicates that the respondent is primarily engaged in reiterating the arguments made at trial which ultimately proved unavailing. We therefore find no error in the trier’s decision to deny the respondent’s Motion to Correct. As this board has previously observed, when “a Motion to Correct involves requested factual findings which were disputed by the parties, which involved the credibility of the evidence, or which would not affect the outcome of the case, we would not find any error in the denial of such a Motion to Correct.” Robare v. Robert Baker Companies, 4328 CRB-1-00-12 (January 2, 2002).

Having found no error, the August 26, 2011 Finding and Award of the Commissioner acting for the Fourth District is hereby affirmed.

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

1 We note that two motions for extension of time were granted during the pendency of these proceedings. BACK TO TEXT

2 Section 31-308a C.G.S. (Rev. to 2005) states: “(a) In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partial permanent disability equal to seventy-five per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury, after such wages have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, and the weekly amount which such employee will probably be able to earn thereafter, after such amount has been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age, but not more than 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 evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury. The duration of such additional compensation shall be determined upon a similar basis by the commissioner, but in no event shall the duration of such additional compensation exceed the lesser of (1) the duration of the employee’s permanent partial disability benefits, or (2) five hundred twenty weeks. Additional benefits provided under this section shall be available only to employees who are willing and able to perform work in this state.

(b) Notwithstanding the provisions of subsection (a) of this section, additional benefits provided under this section shall be available only when the nature of the injury and its effect on the earning capacity of an employee warrant additional compensation.” BACK TO TEXT

3 Section 7-433b(b) C.G.S. (Rev. to 2006) states: “Notwithstanding the provisions of any general statute, charter or special act to the contrary affecting the noncontributory or contributory retirement systems of any municipality of the state, or any special act providing for a police or firemen benefit fund or other retirement system, the cumulative payments, not including payments for medical care, for compensation and retirement or survivors benefits under section 7-433c shall be adjusted so that the total of such cumulative payments received by such member or his dependents or survivors shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his death or retirement. Nothing contained herein shall prevent any town, city or borough from paying money from its general fund to any such member or his dependents or survivors, provided the total of such cumulative payments shall not exceed said one hundred per cent of the weekly compensation.” It should be noted that neither of two trial commissioners who had previously heard the matter elected to impose the cap. BACK TO TEXT

4 It should be noted that because the Iannarone claimant suffered injuries to his lumbar and cervical spine, he did not bring a claim pursuant to the heart and hypertension statutes and, as such, would not have been subject to the limitations imposed by § 7-433b (b) C.G.S. BACK TO TEXT

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