State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Santiago-Vivo v. City of Bridgeport

CASE NO. 5716 CRB-4-12-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 11, 2012

MARIA A. SANTIAGO-VIVO

CLAIMANT-APPELLANT

v.

CITY OF BRIDGEPORT

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

BERKLEY ADMINISTRATORS OF CONNECTICUT, INC.

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Jill Morrissey, Esq., Morrissey, Morrissey and Mooney, LLC, 203 Church Street, PO Box 31, Naugatuck, CT 06770.

The respondent was represented by Marie E. Gallo-Hall, Esq., Montstream & May, LLP, 655 Winding Brook Drive, PO Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the December 27, 2011 Finding and Dismissal of the Commissioner acting for the Fourth District was heard June 22, 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 claimant in this matter asserts she is entitled to receive benefits under § 31-308(a) C.G.S. although she has relocated to the State of Florida. The trial commissioner concluded the statute did not permit benefits to an injured worker who was not seeking work in their “locality”; and that definition presumed the claimant was still living in Connecticut. The trial commissioner dismissed this claim and the claimant has appealed the Finding and Dismissal. We find the trial commissioner’s construction and application of the statute legally sound. We affirm the Finding and Dismissal.

The trial commissioner reached the following findings in the Finding and Dismissal. The claimant had accepted compensable bilateral knee injuries and underwent surgery with Dr. Durgesh Nagarkatti on November 22, 2010. Dr. Nagarkatti on June 13, 2011 released the claimant to light, sedentary work for four hours each day. Dr. John Keggi performed a respondent’s medical examination on June 14, 2011, and stated the claimant had a sedentary work capacity. The claimant currently resides in Riverview, Florida, which is more than 1,200 miles from where she had been employed in Bridgeport, Connecticut. The claimant has no plans to move back to Connecticut.

The commissioner found § 31-308(a) C.G.S. requires that a claimant be ready, willing and able to work in the same locality to be eligible for benefits. The claimant contends the phrase ready, willing and able to work in the same locality applies to her in Florida, despite the fact she has no plans to return to Connecticut. It is the claimant’s contention that § 31-308a C.G.S., also known as post-specific benefits, requires an individual to seek work in Connecticut, but § 31-308(a) C.G.S. does not. The claimant relies on a 1993 amendment to the post-specific benefit statute that barred benefits to out-of-state claimants as supporting her belief such benefits were and continue to be available to out-of-state claimants under § 31-308(a) C.G.S. She also pointed to statements made by legislators in 1967, when the statute was originally enacted, as supporting her position. The respondent contested this interpretation contending the statute requires a claimant to look for work in the same locality and referred to the legal definition of “locality.” The respondent also referred to information packets provided by the Commission to injured workers and to a research report prepared by the legislature’s Office of Legislative Research, entitled Light-Duty Workers’ Compensation Requirements in Connecticut and Other States, which states claimants on light duty “must look for such work in their geographic areas.”

The commissioner noted a Form 36 was approved effective June 28, 2011, to change the claimant’s work status from temporary total disability to temporary partial disability.1 Indemnity benefits were stopped at that time because of the claimant’s Florida residency and lack of clear intent to return to Connecticut to work.

Based on these facts the trial commissioner concluded there is no Compensation Review Board, Appellate Court, or Supreme Court decision directly on point on the definition of the phrase in the same locality in connection with § 31-308(a) C.G.S., making this a case of first impression. Conclusion, ¶ g. The commissioner looked to the dictionary definition of locality and found it defined as “a district, neighborhood, situation, place, particularly a geographical place or situation. It further shows that word springs from the latin locus for a place.” Conclusion, ¶ h. The commissioner further concluded,

It has been practice in some instances for this Commission to require a declaration by the claimant of intent to return to Connecticut if light-duty work is found. Benefits have been continued on the basis of subjective declaration of intent.

Conclusion, ¶ i.

The trial commissioner further read the entirety of the statute and noted that it set benefits in accordance with “the average weekly earnings of production and related workers in the state. . . .” (Emphasis in original.. Conclusion, ¶ k. The commissioner also concluded secondary sources indicated that the claimant was expected to find work in Connecticut. The trial commissioner further concluded,

To read the phrase in the same locality as allowing the claimant to live in Florida and to collect light-duty benefits in effect leaves the phrase with no real meaning at all, putting it at odds with the requirement that all words in a statute must be read to have meaning.

Conclusion, ¶ j.

As a result, the trial commissioner found the phrase in the same locality as used in § 31-308(a) C.G.S. refers to the State of Connecticut, rather than the area or neighborhood of the claimant’s current residence in Florida. Conclusion, ¶ m. The commissioner determined the claimant forfeited temporary partial incapacity benefits absent an intent to return to Connecticut.

The claimant did not file a Motion to Correct and is not disputing the factual findings on appeal. She filed Reasons for Appeal asserting that the trial commissioner’s interpretation of the statute was in error.

The claimant offers no provision in the actual text in the statute for her position that the law expressly permits a claimant to receive § 31-308(a) C.G.S., after relocation outside Connecticut. Instead, she rests much of her argument on a floor statement in the Connecticut House of Representatives in 1967 when the statute was revised. The claimant argues this floor statement by Representative Paul Pawlak supports her interpretation of the law.

This section makes several changes in the existing law relating to workers who are partially incapacitated. First, it increases the maximum to 66 2/3. Second, it provides that where an employee is released for light work or work other than his normal job and there is no such work available in the same locality, the employee will not be cut off of compensation. This provision remedies one of the most difficult problems in workmen’s compensation where men are told that they can do light work but there is no light work available in their plant or on their jobs. In most cases, this has meant that employees were cut off of benefits. They were in many cases unable to secure work in their own area, which they could do and might have been able to collect unemployment benefits. Since the employee’s inability to work is due to his injury, we believe that he should be protected under workmen’s compensation until he is able to secure work which he can perform. We have proposed other provisions which we believe will encourage employer’s to re-employ such men.

1967 House Proceedings Volume 12, Part 9, pp. 4038-4039.

The claimant argues that this floor statement of June 1, 1967 represents the expressed policy of the General Assembly to compensate claimants with partial disability benefits irrespective of whether they continued to reside in Connecticut or not. We first note that this argument is not necessarily consistent with the direction expressed in § 1-2z C.G.S., wherein we are limited to the application of the “plain meaning” of a statute.

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.

Id.

We will consider the claimant’s arguments by assuming arguendo that the phrase “in the same locality” is ambiguous and therefore extratextual evidence as to the intent of the General Assembly must be considered in interpreting this statute. Our review of the legislative history indicates that the law in question, Public Act 842, was an omnibus revision of the workers’ compensation law in force at the time. The public speakers in favor of this bill, as well as the legislative proponents, made no mention at the time the bill was passed that it was intended to compensate claimants living outside the State of Connecticut. Instead, we believe the legislative intent was far narrower, to expand the ability of an injured worker to obtain partial disability benefits when he or she was unable to procure light duty work from their former employer. “[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 v. Ragaglia, 272 Conn. 734, 748 (2005).

We examined the statutes in effect during the years prior to the 1967 revision of the Workers’ Compensation Act. The predecessor to § 31-308(a) C.G.S.; § 31-162 C.G.S. (Rev. to 1959), established partial disability earning capacity as follows. “If an employer procures for an injured employee employment suitable to his capacity, the wages offered in such employment shall be taken as the earning capacity of the injured employee.” In 1967 two separate bills were introduced in the General Assembly to broaden the ability of a claimant to obtain light duty work and receive benefits. The Labor Committee held a public hearing on April 7, 1967, to consider these proposals; House Bill 2960 and House Bill 4895. Representative Henry Becker spoke on behalf of his bill, House Bill 4895, and offered this argument for its enactment.

This is an attempt to remedy a situation where people are injured on a job, where they are working in a heavy industry. Then after they’re recuperated a certain length of time, the doctor will tell them they can do light work and very often then this disqualifies them from further compensation and this attempts to provide that no award of Workmen’s Compensation shall be decreased or eliminated because the employee has been found able to do light work if such light work does not exist in the industry in which his incapacity was occurred. In other words, if he’s a structural steel worker and he hurts his back, the doctor then tells him he can do light work. That may be fine but he can’t do his steel structural work so he just can’t get his job back and he’s just as incapacitated doing light work as if he were completely incapacitated and by putting this in the law we think it will protect some of these people who work in heavy industry and who have been losing compensation benefits because their doctor tells them that they can do light work.

A representative of the United Steel Workers, Mr. Patterson, testified in favor of a similar bill, House Bill 2960, at the same public hearing. His testimony was as follows,

[a]lso, on 2960 as regards to a physician assigning employees to light work only to return and find there is no light work and, as the law now stands that he will not receive his compensation as long as he has this standing. I believe and I know it to be a fact that, in many cases, when an employee is denied his benefits, his family also suffers with him and I believe that if this law is enacted, he would receive benefits if there is no work available and it would be a great help in the right direction.

In considering the testimony of the various proponents of Public Act 842, we conclude that the use of the term “same locality” in this legislation did not apply to whatever location the claimant might choose to reside in, but rather stated the claimant could obtain appropriate light duty work in the “same locality” as he had been previously employed without the loss of benefits. If an employee performing physical labor at a Norwalk, Connecticut employer was injured and released to light duty that was unavailable at their prior employer; we would deem it reasonable for he or she to seek other light duty work in the general vicinity of Norwalk, Connecticut, not choose to relocate to Norwalk, California, and apply for temporary partial disability benefits under Connecticut law.2

This interpretation of the statute is similar to the rationale behind the legislative revision to § 31-308a C.G.S., enacted in 1993. The claimant offers no rational explanation why the General Assembly would want awards under § 31-308a C.G.S. to be subject to a different geographic limitation than § 31-308(a) C.G.S. The claimant notes that the prior statute was not revised at the same time, but as there have been no cases brought to our attention that out of state claimants were receiving § 31-308(a) C.G.S. benefits prior to 1993, we are unwilling to infer that these awards should now be permitted subsequent to this statutory revision.3

The Appellate Court has opined on the propriety of a claimant relocating to Florida and seeking benefits under § 31-308a C.G.S. In McEnerney v. U.S. Surgical Corporation, 72 Conn. App. 611 (2002), the court upheld the denial of such benefits and opined “[t]he relocation to Florida clearly demonstrates the plaintiff’s unwillingness to perform work in Connecticut. Furthermore, to find that she is able to work in Connecticut while residing in Florida is patently unrealistic.” Id., 616. We do not find the terms of § 31-308(a) C.G.S. to be sufficiently dissimilar to that of § 31-308a C.G.S. to warrant a deviation from the clear and unequivocal policy delineated in McEnerney. In considering the “relationship to other statutes” as required under § 1-2z C.G.S., we conclude that the only interpretation that does not lead to an unworkable result was the interpretation of § 31-308(a) C.G.S., performed by the trial commissioner in this case.

The legislative purpose behind the temporary partial disability benefit statute is to enable someone injured while working for a Connecticut employer to, once they are released back to work, receive benefits while working a light duty job in their local community. We find no precedent which would construe the term “locality” as described in Chapter 568 to include a community in the State of Florida. We affirm the Finding and Dismissal.

1 The Finding and Dismissal states this date to be “June 24, 2011.” Findings, ¶ 15. We consider this a harmless scriveners error, see Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). BACK TO TEXT

2 The claimant places great emphasis on Volume 19, Section 8:66, Connecticut Practice Series, Connecticut Workers’ Compensation Law as supporting a bid for benefits to an out of state resident.

Prior to July 1, 1993, the case law and legislative history suggested that the phrase ‘ready and willingly to perform other work in the same locality’ was intended to protect claimants from having to perform job searches very far from their homes in order to qualify for temporary partial disability benefits while they were still recovering from their injuries. The intent of the liberalized benefit provision appears to be to provide benefits where the employee . . . lives (“in their own area”) rather than in the area where the employer has his place of business. Thus a worker living in East Thompson, in the extreme northeast of Connecticut, would not be denied benefits on the basis of a showing that “other work” was available in Stamford, Greenwich or Canaan, so long as such “other work” was not available in the areas of Connecticut, Massachusetts or Rhode Island reasonably adjacent to East Thompson.

We do not find this relevant to the present discussion. We take administrative notice that the border areas of New York, Massachusetts and Rhode Island are in many ways economically integrated with adjoining Connecticut communities and commuting to work in Connecticut from such areas or performing job searches in such areas would be reasonable under the statute. See, e.g. McEnerney v. United States Surgical Corporation, 72 Conn. App. 611 (2002), footnote 6. We do not believe, however, that any community in Florida could be deemed similarly integrated with a Connecticut locality, however. We believe the concept of “locality” is fixed at the time of a claimant’s injury pursuant to our statute. BACK TO TEXT

3 As the leading treatise suggests, in 1993 the General Assembly may have amended § 31-308a C.G.S. on the assumption the existing language in § 31-308(a) C.G.S. already barred out-of-state claimants. “…while the legislature amended Section 31-308a in 1993 to require that claimants be “willing and able to perform work in this state, it did not similarly revise the temporary partial disability statute. The memory of the legislature is relatively short, and the proponents of the 1993 amendments may have assumed that, if they considered it, the legal effect of the phrase in Section 31-308(a) “in the same locality,” already imposed a geographic limitation similar to that which it was enacting with the 1993 amendment.” Volume 19, Section 8:66, Connecticut Practice Series, Connecticut Workers’ Compensation Law. BACK TO TEXT

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

Workers’ Compensation Commission

Page last revised: February 25, 2013

Page URL: http://wcc.state.ct.us/crb/2012/5716crb.htm

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