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CASE NO. 4770 CRB-3-04-1
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
DECEMBER 22, 2004
CITY OF NEW HAVEN
The claimant was represented by Thomas Farver, Esq., 2842 Old Dixwell Avenue, Hamden, CT 06518.
The respondents were represented by James Pomeranz, Esq., and Courtney C. Stabnick, Esq. Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
This Petition for Review from the December 30, 2003 Finding and Dismissal of the Commissioner acting for the Third District was heard July 30, 2004 before a Compensation Review Board panel consisting of consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr., and Charles F. Senich.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent employer, City of New Haven appeals from the December 30, 2003 Finding and Dismissal of the Commissioner acting for the Third District. In that decision the trial commissioner ruled § 31-314 did not permit the respondent to offset claimant’s temporary total disability benefits by the sums paid the claimant for disability retirement benefits.1
The claimant in this matter was employed by the respondent as a firefighter between June 1, 1983 and April 3, 2002, when he was involuntarily placed on a disability retirement. On September 12, 2000, the claimant suffered a compensable back injury and was paid temporary total disability benefits as appropriate. Following his retirement, the claimant received $2,031.04 monthly from his disability pension. On March 7, 2003 the respondent filed a Form 36 seeking to reduce the claimant’s temporary total disability benefits by an amount equal to the claimant’s disability pension.
The trial commissioner ruled against the respondent and the respondent took this appeal. The sole issue presented for review is whether the trial commissioner erred in concluding § 31-314 did not permit the respondent to offset temporary total disability payment by the claimant’s disability retirement benefits. Sec. 31-314 provides:
In fixing the amount of any compensation under this chapter, due allowance shall be made for any sum which the employer has paid to any injured employee or to his dependents on account of the injury, except such sums as the employer has expended or directed to be expended for medical, surgical or hospital service.
In its appeal the appellant argues, inter alia, that the plain language contained in § 31-314 permits the offset. We disagree. Following the trial commissioner’s determination in this matter, our Supreme Court issued its opinion in Starks v. University of Connecticut, 270 Conn. 1 (2004). In Starks, the court reviewed the legislative history of § 31-314 and noted that the statute’s language has been a part of the Workers’ Compensation Act since its inception. The court also noted that the Appellate Court in Loftus v. Vincent, 49 Conn. App. 66, 73, (1998) cited § 31-314 as the statutory authority prohibiting double recovery. See, Starks, p. 17-18.
The issue presented for the Supreme Court’s review in Starks was whether the claimant’s § 31-308a benefits should be offset by the claimant’s receipt of state disability retirement benefits. The court ultimately concluded that “the State Employees Retirement Act mandates that her disability retirement benefits be offset by the workers’ compensation benefits that she receives under § 31-308a.” Id., p. 29.
However, in the course of its opinion in Starks the court reviewed the text, legislative history and case law pertaining to § 31-314. In its analysis of § 31-314 the court concluded the phrase “any sum . . . paid . . . on account of injury” did not mean payments made “because” of claimant’s injury. The court noted:
“Because § 31-314 is captioned “[a]llowance for advance payments,” we find persuasive the plaintiff’s argument that the statutory phrase “any sum . . . paid . . . on account of the injury” means something other than payments made because of the employee’s injuries. Instead, we read payments made “on account of” to mean those payments paid on credit, or in advance of, any sums that subsequently become payable by the employer.” (Emphasis supplied.)
Id., p. 19. Additionally, the court noted:
“Advances may take several forms. The most common is the situation where an employer or insurer agrees to make some payment on a without prejudice basis pending their investigation as to whether to accept the claim as compensable or not. The advance is made without admitting liability and, if the claim is later accepted as compensable, the amount advanced is set off against any amount then due on the claim.” J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985) p. 271 (discussing § 31-314). Based on this interpretation, payments received by the plaintiff as state disability retirement benefits would not qualify as “advance payments” made by the plaintiff’s employer.
Id., p. 19-20.
Applying the Starks’ court’s analysis to the instant matter we conclude that the trial commissioner’s decision in this matter is appropriate. While the court in Starks ultimately found another statutory basis providing for an offset, it is clear that the court did not conclude § 31-314 provided the authority for such an offset.
We therefore affirm the December 30, 2003 Finding and Dismissal of the Commissioner acting for the Third District.
Commissioners A. Thomas White, Jr., and Charles F. Senich concur.
1 We note that in addition to the trier’s Finding and Dismissal the trial commissioner provided a Memorandum of Decision. BACK TO TEXT
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