State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Rigoulot v. Town of Wallingford

CASE NO. 4874 CRB-8-04-10



MARCH 14, 2006

















The claimant was represented by Thomas A. Weaver, Esq., Attorney at Law, 721 Broad Street, Meriden, CT 06450.

The respondents were represented by Colette Gladstone, Esq., Howd & Ludorf, 65 Wethersfield Avenue, Hartford, CT 06114-1190.

The Second Injury Fund was represented by Brewster Blackall, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

These Petitions for Review from the September 28, 2004 Finding and Award of the Commissioner acting for the Eighth District were heard on June 17, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Michelle D. Truglia and James J. Metro.


JOHN A. MASTROPIETRO, CHAIRMAN. The respondent Second Injury Fund (hereinafter “Fund”) and the respondent Town of Wallingford (hereinafter “respondent”) have each petitioned for review from the September 28, 2004 Finding and Award of the Commissioner acting for the Eighth District. On appeal, the Fund contends that the trier should have ordered the respondent to repay the Fund concurrent employment benefits that were allegedly paid in error in conjunction with the claimant’s § 7-433c C.G.S. benefits, while the respondent argues that the trier erred by ruling that the Fund need not be liable for any future benefits payable under § 31-310. We find error in part, and reverse the trier’s decision regarding the Fund’s right to challenge prior Form 44 orders that were entered without the proper statutory authority.

The trial commissioner in this case took administrative notice of four approved voluntary agreements that were issued between 1988 and 2000.1 Each recites that, pursuant to § 7-433c, the respondent accepted as compensable the claimant’s November 6, 1987 heart-related injury. Each agreement also recites that the claimant, a Wallingford firefighter, was concurrently employed on that date with Integrated Office Systems, a private employer. The claimant’s weekly compensation rate was set at $572.60, with $197.19 of that amount being a prorated share of concurrent employment benefits under § 31-310. Forms 44 were issued on eight different dates, the most recent being January 31, 2002,2 ordering the Fund to accept liability for the prorated 31-310 payments. The Fund made payment pursuant to each of those orders.

On May 22, 2002, the Fund informed the respondent that these payments had been made in error, and that it was seeking reimbursement for the $86,259.45 that it had paid out pursuant to the Forms 44. Because § 7-433c is not part of the Workers’ Compensation Act, the Fund argued that it cannot statutorily be held liable for § 31-310 concurrent employment benefits payable in conjunction with such a claim, based upon the rationale articulated with regard to cost-of-living adjustments (COLAs) in McNulty v. Stamford, 37 Conn. App. 835 (1995). The respondent disagreed on several grounds. The parties brought the issue before this Commission, where the presiding commissioner ruled that (1) the Commission had jurisdiction to consider the issues presented, (2) the Fund had no right to obtain reimbursement from the respondent for sums paid out pursuant to Form 44 orders that the Fund did not appeal in a timely manner, and (3) the Fund’s analysis of McNulty was otherwise persuasive, thereby relieving it of liability for any future concurrent employment payments that might be due in this case. The Fund and the respondent have both filed petitions for review from that decision.

Our state legislature created § 7-433c because it sought to provide an incentive for people to enter the firefighting and law enforcement professions by compensating them for any heart or hypertension condition that might develop during their term of employment, regardless of its cause. This legislation was constitutionally attained by structuring this benefit as special compensation following our Supreme Court’s decision in Ducharme v. Putnam, 161 Conn. 135 (1971). Unlike a chapter 568 claim, a § 7-433c claim “casts no burden of proof upon the claimant to show that such disease resulted from the employee’s occupation or that it occurred in the line and scope of his employment.” Plainville v. Travelers Indemnity Co., 178 Conn. 664, 670 (1979); see also, Bakelaar v. West Haven, 193 Conn. 59, 69 (1984). Rather, the legislature chose to borrow the benefit structure and procedural mechanics of the Workers’ Compensation Act, including the oversight of this commission, for reasons of administrative economy. The statute provides that a claimant or his dependents “shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment . . . .” Importantly, in establishing these § 7-433c benefits, the legislature did not assert or find that all heart ailments suffered by firemen and police officers are causally related to their employment. Plainville, supra, 672-73. Instead, a new, “separate and distinct” class of benefit was created, with a different underlying justification from that of workers’ compensation. Bakelaar, supra, 67.

The Second Injury Fund, meanwhile, is a special fund. Civardi v. Norwich, 231 Conn. 287, 294 (1994). Payment from such a fund, “which was established, inter alia, to assist in the payment of compensation awarded to handicapped and disadvantaged workers . . . should be made only in accordance with express statutory authority . . . in order to protect that special fund and prevent unwarranted diversions of it from the specific purpose for which it was created.” (Citations omitted; internal quotation marks omitted.) Id. Within the Workers’ Compensation Act, the Fund is directed by § 31-354 3 to assume liability only for certain payments and awards of compensation made under the provisions of the Act. McNulty v. Stamford, 37 Conn. App. 835, 838-39 (1995); see also, Bergeson v. New London, 4489 CRB-2-02-2 n.3 (February 21, 2003)(noting that the McNulty court clearly intended to cite § 31-354 rather than § 31-345 in its opinion), aff’d, 269 Conn. 763 (2004).

In reconciling § 7-433c with the Fund, courts have stressed that “[t]he legislature did not include the benefits available under § 7-433c as compensation under the workers’ compensation scheme, chapter 568.” McNulty, supra. Because of this distinction, the Second Injury Fund’s obligation to reimburse employers for certain cost-of-living adjustments (COLAs) has been held inapplicable to § 7-433c claims. Bergeson, supra; McNulty, supra. This is so even though the municipal employer must pay COLAs to the claimant, in light of the fact that benefit recipients under § 7-433c are entitled to the same level of compensation as beneficiaries of chapter 568. Bergeson, supra (COLAs are part of Act’s system of compensation). A similar line of reasoning has been adopted with regard to the payment of § 31-284b benefits. Civardi v. Norwich, 231 Conn. 287 (1994)(absent express statutory authority, Fund was not required to assume liability for continuation of insurance benefits as part of § 31-349 transfer).

The statute before us here is § 31-310 C.G.S., which creates a benefit for injured employees who work for more than one employer at the time of injury, and whose average weekly wage paid by the employer in whose service they were injured is insufficient for them to obtain the maximum weekly compensation rate. Under the version of the statute in effect at the time of the claimant’s injury, such a person’s average weekly wage was to be calculated “upon the basis of wages earned from all such employers in the period of such concurrent employment not in excess of twenty-six weeks prior to the date of the injury.” The employer in whose employ the injury occurred remained liable for “all medical and hospital costs, [and] a pro rata portion4 of the compensation rate based upon the ratio of the amount of wages paid by him to the total wages paid the employee in such average week . . . ,” while the remainder of the applicable compensation rate “shall be paid from the second injury and assurance fund.”5

A claimant who is being compensated pursuant to § 7-433c is entitled to receive concurrent employment benefits from his municipal employer just as he would be entitled to receive COLAs, as § 31-310 is also part of the chapter 568 legislative scheme to ensure that injured workers are adequately and fairly compensated for their lost earning capacity. See Bergeson, supra; McNulty, supra. In terms of Second Injury Fund reimbursement for concurrent employment benefits, however, the same obstacles exist here that exist with regard to COLAs, § 31-284b benefits, and other liabilities that the Fund is required to assume when there is a compensable injury under chapter 568. Section 31-310 sets forth the average weekly wage “for the purposes of this chapter,” and focuses primarily on the wages “received by the injured employee from the employer in whose service he is injured.” Where other employers enter the mix, and a claimant is prevented by his compensable injury from returning to other jobs that he held as of the date of injury, the Second Injury Fund is required to assume liability for the balance of a workers’ compensation claimant’s benefit rate.

A § 7-433c claimant, in contrast, has not necessarily been injured in the service of his municipal employer, and need not prove eligibility for compensation under chapter 568. Instead, such a claimant is compensated “in the same amount and the same manner” as a workers’ compensation claimant for an injury that may not be work-related at all. When we consider the thorough reasoning of our Supreme Court’s decision in Bergeson, supra, and the result in Civardi, supra, we are compelled to follow the Court’s lead by ruling that the Fund is not liable for § 31-310 concurrent employment benefits in § 7-433c cases. The Workers’ Compensation Act does not profess to relieve the municipal employer for any of the liability for benefits paid pursuant to § 7-433c by transferring that liability to another entity. Although the respondent cites King v. Sultar, 253 Conn. 429 (2000)(municipality that had paid § 7-433c benefits could intervene in claimant’s third-party tort case pursuant to § 31-293), in support of the notion that an employer should not have to pay for that which it is not responsible, our Supreme Court made it clear in King that the § 31-293 situation is inapposite to cases in which a party other than a municipality is allegedly liable for payment of benefits under § 7-433c. Id., 447.

We acknowledge that the Second Injury Fund is funded by an assessment on all Connecticut employers, and is invoked by § 31-310 to avoid saddling individual employers with weekly compensation payments greater than an employee’s actual wages. However, the key prerequisite of a chapter 568 claim (and its underlying remedial purpose) are still missing from this case. There is no clear extension of statutory authority that would allow the Fund to assume liability for concurrent employment benefits under § 7-433. Section 31-354 makes no reference to claims external to the Workers’ Compensation Act (nor does it reference § 31-310 directly), while § 31-310 sets the wage “for the purposes of this chapter” (chapter 568), and does not profess to reach beyond that. Meanwhile, § 7-433c restricts liability for benefits to the “municipal employer.” The necessary connection between the Fund and § 7-433c is missing. Thus, the authority for this Commission to order the Fund to pay concurrent employment benefits is absent with respect to claims under § 7-433c.

The next issue we must address is the one raised by the Fund on appeal: whether the trier was correct in holding that the Fund could not obtain reimbursement for the $86,259.45 in concurrent employment benefits that it paid out between 1988 and 2002, pursuant to eight separate Form 44 orders (see n.2, supra) which the Fund did not seasonably appeal. The Fund argues that, because there was no statutory authority for this Commission to order said payments in the first place, the Forms 44 are void ab initio and the Fund is entitled to repayment of those sums from the respondent. The Fund cites Vincent v. New Milford, 8 Conn. Workers’ Comp. Rev. Op. 27, 761 CRD-7-88-8 (February 5, 1990), in support of its argument.

In Vincent, a trial commissioner had ruled that the Fund was not entitled to be reimbursed for § 31-308a payments the Fund had made pursuant to § 31-349 C.G.S. and had based upon a specific order of this Commission, even though the erroneous nature of the compensation rate in the order was itself acknowledged. The Fund contended that the order to pay § 31-308a benefits in excess of the claimant’s base rate was beyond the statutory power of the commissioner and therefore void ab initio. The Compensation Review Division (this board’s predecessor) agreed with the Fund on appeal, holding that the Fund was entitled to a credit for all sums paid in excess of the proper rate. “Here modification is requested on the theory that the excessive rate in the four orders in question was a mistake of fact and therefore modifiable under § 31-315. We think modification rests on a broader basis. The commissioner was without power or jurisdiction to order payment exceeding that permitted by statute.” Because the orders for payment in excess of the claimant’s weekly base compensation rate were in excess of the commissioner’s statutorily conferred jurisdiction, the Vincent CRD panel held that the Fund was entitled to restitution.

We agree that the reasoning of Vincent is applicable here. Though this Commission has jurisdiction to order payments from the Fund in proper circumstances via the Form 44, we do not have jurisdiction to order the Fund to assume liability for concurrent employment benefits payable in conjunction with a claimant’s § 7-433c claim. The Forms 44 directing such payment were therefore void from the outset, because there was no statutory authority to involve the Fund in this claim. The error is jurisdictional. Marone v. City of Waterbury, 244 Conn. 1, 16 (1998)(decision of administrative agency cannot be set aside beyond appeal period unless error is one going to jurisdiction). Therefore, the Fund may seek restitution from the respondent, assuming that it is able to meet the other equitable criteria of a restitution claim. See Vincent, supra, citing Atlantic Coast Line Railroad Co. v. Florida, 295 U.S. 301, 309-11 (1935)(claimant in restitution action must show that equity and good conscience would be offended if possessor was entitled to retain money, given circumstances of its receipt).

As it was an error to grant the Forms 44 ordering the Fund to reimburse the Town of Wallingford for concurrent employment benefits, access to this forum should remain open so that the Fund may have the opportunity to rectify that error. Though we do not have jurisdiction to order the Fund to pay concurrent employment benefits pursuant to a § 7-433c claim, we do have jurisdiction over both the underlying claim for § 7-433c benefits, and Form 44 orders generally. It was through the exercise of that jurisdiction that this Commission compelled the Fund to appear and directed it to reimburse the respondent. Ancillary to that jurisdiction is the ability to overrule that determination on appeal, and to determine the amount of money that the Fund should be repaid, assuming they meet the equitable criteria for restitution. See DiBello v. Barnes Page Wire Products, Inc., 3970 CRB-7-99-2 (March 2, 2000)(trier was directed to apply common-law agency and contract principles to help determine if alleged agent created binding insurance policy), aff’d, 67 Conn. App. 361 (2001). Thus, the proper remedy for this error is a reversal of the trial commissioner’s decision, and a remand to the Eighth District to consider the issue of restitution that may be owed to the Fund.

The trial commissioner’s decision is accordingly affirmed in part, and reversed in part.

Commissioners Michelle D. Truglia and James J. Metro concur.

1 The dates of those approved voluntary agreements were February 11, 1988, March 30, 1989, August 31, 1995, and September 15, 2000. BACK TO TEXT

2 The other Form 44 orders were dated February 11, 1988, November 22, 1988, May 22, 1990, August 23, 1991, September 23, 1999, August 23, 2000, and September 11, 2001. BACK TO TEXT

3 Section 31-354(a) C.G.S. currently provides in part, “The fund shall be used to provide the benefits set forth in section 31-306 for adjustments in the compensation rate and payment of certain death benefits, in section 31-307b for adjustments where there are relapses after a return to work, in section 31-307c for totally disabled persons injured prior to October 1, 1953, in section 31-349 for disabled or handicapped employees and in section 31-355 for the payment of benefits due injured employees whose employers or insurance carriers have failed to pay the compensation, and medical expenses required by this chapter, or any other compensation payable from the fund as may be required by any provision contained in this chapter or any other statute and to reimburse employers or insurance carriers for payments made under subsection (b) of section 31-307a.” BACK TO TEXT

4 Currently, this employer is liable for “a portion of the compensation rate equal to seventy-five percent of the average weekly wage paid by him to the injured employee . . . .” This change was made in 1995 as part of P.A. 95-277, which sought to drastically reduce the financial burden on the Second Injury Fund. See Coley v. Camden Associates, Inc., 243 Conn. 311, 319 (1997). BACK TO TEXT

5 The statute also provides, “In cases which involve concurrent employment and in which there is a claim against a third party, the injured employee or the employer in whose employ the injury was sustained or the employer’s insurer shall advise the custodian of the second injury fund if there is a third party claim, and such employee, employer or employer’s insurer shall pursue its subrogation rights as provided for in section 31-293 and shall include in its claim all benefits paid by the second injury fund for all payments made for compensation in the event of a recovery against the third party.” BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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