State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Villani v. Town of New Milford

CASE NO. 4990 CRB-7-05-8



MAY 18, 2006











The claimant was represented by Philip Spillane, Esq., Allingham & Spillane, LLC, 62 Bridge Street, New Milford, CT 06776.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the August 23, 2005 Finding and Order of the Commissioner acting for the Seventh District was heard March 24, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.


JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the August 23, 2005 Finding and Order of the Commissioner acting for the Seventh District. They seek reversal of the trier’s ruling that a claimant between the ages of 62 and 65 who has not yet elected to receive Social Security benefits is entitled to full compensation for temporary total disability, despite the offset provision of § 31-307(e) C.G.S. We find no error, and affirm the trial commissioner’s decision.

The claimant was born on November 19, 1941. She suffered a compensable back injury on March 3, 2003, while working for the respondent Town of New Milford. She had been temporarily totally disabled from December 2003 through the dates of the formal hearings. Effective April 4, 2004, the respondents began reducing the claimant’s weekly disability payment from $364.21 to $185.92 per week based on their argument that they were entitled to an offset in accordance with § 31-307(e). The claimant had not applied for Social Security retirement benefits as of the date of the trier’s decision, nor had she reached 65 years of age. The claimant could have begun receiving such benefits when she reached the age of 62, which would have provided her with approximately $587.00 per month. By waiting until her full retirement age of 65 and eight months, her monthly payment would be approximately $786.00.

Consistent with the testimony of a specialist in Social Security law, the trial commissioner found that the claimant was not automatically entitled to receive benefits at the age of 62. Rather, she would have had to elect to receive them by applying for them at some point prior to her full retirement age. The trier concluded that the claimant was not entitled to receive such benefits within the meaning of § 31-307(e), as she had not yet made that request. Thus, the respondents were not entitled to take a corresponding credit or offset against the claimant’s temporary total disability benefits “until the claimant reaches the age of 65 years and eight months.” The respondents have petitioned for review from that decision to this board.1

The respondents’ argument is straightforward. They contend that the plain language of § 31-307(e)2 concerns “entitlement” to Social Security retirement benefits rather than an application for, or receipt of, such benefits. They describe this language as unambiguous, thereby preventing us from delving into the legislative history or any other evidence supporting a different interpretation. See § 1-2z C.G.S. (meaning of statute shall in first instance be ascertained from text itself and its relationship to other statutes). They cite this board’s decision in Heene v. Professional Ambulance Service, Inc., 3743 CRB-6-97-12 (January 8, 1999), where we acknowledged that “[w]here the language of the statute is unambiguous, this board may not divert from the meaning of that language, even if it would result in a claimant being denied benefits that would be consistent with the overall spirit of the Act. Trankovich v. Frenish, Inc., 47 Conn. App. 628, 631 (1998).” In their view, because the federal Social Security Administration has no right to deny that benefit to a person who reaches age 62, such person must then be “entitled” to that benefit within the meaning of § 31-307(e).

The claimant, in response, identifies two questions that are at issue. First, does the statute permit the reduction of benefits payable to a claimant who, though over 62, has not elected to receive Social Security retirement benefits? Second, insofar as that would be allowed, is § 31-307(e) constitutional? This board cannot address the latter question, as our subject matter jurisdiction does not incorporate the power to declare a statute constitutional or otherwise. Rayhall v. Akim Co., Inc., 4321 CRB-2-00-12 (November 5, 2001), aff’d, 263 Conn. 328 (2003); Fish v. Caldor, Inc., 3840 CRB-7-98-6 (May 11, 1999). Our jurisdiction is limited to the consideration of the first issue, although in doing so, we must remain aware of constitutional requirements (such as due process) as we sift through possible constructions of ambiguous statutory language. See Melendez v. Valley Metallurgical, 4178 CRB-2-00-1 (May 1, 2001), appeal dismissed, A.C. 23921 (May 14, 2003), cert. denied, 266 Conn. 904 (2003); Fish, supra.

The claimant contends that the meaning of § 31-307(e) is neither plain nor unambiguous, thus requiring this board to consider other influences in construing the statute, including the legislative history. We agree. At its core, this case is a debate over the meaning of the phrase “while the employee is entitled to receive old age insurance benefits.” The word “entitled” is subject to more than one interpretation here, given the way Social Security benefits are obtained by a person between the age of 62 and full retirement age. We cannot resolve this question simply by looking at the language of § 31-307(e) or its relationship with the rest of the Workers’ Compensation Act.

The Black’s Law Dictionary definition of “entitle” is “to give a right or legal title to,” or “to qualify for; to furnish with proper grounds for seeking or claiming.” An “entitlement” is further defined as “right to benefits, income or property which may not be abridged without due process; e.g. social security benefits.” See Black’s Law Dictionary, Abridged Sixth Edition. The logic implied by this definition becomes circular in the context of § 31-307(e). To wit: one is furnished with proper grounds for seeking Social Security benefits when one reaches the age of 62, and that right cannot be abridged without due process. Yet, the right to collect Social Security is not invoked until the beneficiary elects to begin receiving those benefits, and there is no obligation on the part of the Social Security Administration to begin paying such benefits beforehand. Though a prospective beneficiary may be eligible to claim benefits, she or he does not establish legal title to such payments until an application is filed. Only at that point would the federal government be unable to deny payment without due process. Both arguments regarding the meaning of “entitled” appear tenable. In order to avoid this ambiguity, § 31-307(e) would have needed to use words such as “while the employee is eligible to apply for” or “while the employee is receiving” old age insurance benefits. Thus, we must look beyond the statutory language itself.

The claimant explains in her brief that the offset taken by the respondents against her workers’ compensation benefits would require her to accept early retirement in order to receive the equivalent of her full total disability benefit under § 31-307. According to the claimant’s Social Security statement, if she had accepted early retirement at age 62, she would have permanently limited her Social Security retirement benefit to $587.00 per month. Claimant’s Exhibit A. At full retirement age (65 and 8 months), she would be entitled to $786 per month, while waiting to age 70 would entitle her to $1,141 per month. “A Claimant in Ms. Villani’s position who could not survive on the reduced temporary total disability benefit would thereby be forced into an involuntary early retirement, at significant long term financial loss.” Brief, p. 5.

Our Supreme Court’s opinion in Rayhall, supra, offers guidance on this issue. There, the Court held that § 31-307(e) did not unconstitutionally discriminate on the basis of disability or age. The Court reasoned that the legislature enacted the offset in furtherance of a legitimate state goal, i.e., to reduce workers’ compensation costs to employers and insurers. Moreover, it was rational for the legislature to focus on temporary total disability benefits while leaving temporary partial disability benefits unaffected by the offset. While both total and partial incapacity benefits compensate loss of earning power due to a compensable injury, partial incapacity benefits are payable when a claimant’s post-injury wages have been reduced and a supplement is needed to bridge the gap between the wages the worker was earning pre-injury and what he or she is able to earn thereafter, for up to 520 weeks. Total disability benefits, on the other hand, address the inability of the employee to work at any occupation which he or she might reasonably follow, and are unrestricted as to duration.

The Court’s role was to identify a rational basis for sustaining this legislative distinction. The Court did so by reasoning that “the legislature rationally could decide to reduce wage replacement benefits for workers who have retired from the workforce,” and that it “could have determined that receipt of old age social security benefits establishes a presumption of retirement.” Id., 351-52. “With respect to partial incapacity, by contrast, the presumption of retirement is rebutted by the worker’s actual employment, as reflected in §§ 31-308(a) and 31-308a(a).” Id., 352. The Court further observed that, with regard to non-age-based retirement benefits such as pensions, the legislature could rationally exclude them from the offset “because one cannot presume that, but for an injury, the worker would have retired upon eligibility for the benefit. . . . It is not uncommon for a worker eligible for such benefits to collect retirement benefits from one employer while earning wages from a second employer.” Id.

In reaching these conclusions, the Court observed that this board had discussed a means to address situations where an injured worker is partially incapacitated, is not working, and is receiving old age social security benefits. Id., 352 n. 22. In Merola v. The Jackson Newspaper, Inc., 3344 CRB-3-96-5 (October 27, 1997), we stated that a claimant who was receiving such benefits and no longer looking for work was suggesting by his actions that he considered himself retired. We recommended granting § 31-308a discretionary benefits only until the claimant reached age 65 (when he became eligible for full retirement and began collecting old age insurance benefits). Any period of § 31-308a entitlement after that date would require the claimant to make a separate showing that circumstances warranted further benefits.

The Court was not asked whether an offset against partial disability benefits would be constitutional. Rather, its analysis was limited to justifying the distinction between total and partial disability benefits, and between age-related and non-age-related retirement benefits. However, the Court’s ensuing discussion is illuminating with respect to the respondents’ proposed interpretation of § 31-307(e). While focusing on the statute’s distinction between current and former members of the work force, the Court observed that the legislature considered and rejected alternate bills that would have extended the offset to totally disabled claimants receiving unemployment compensation and public or private pension benefits. Rayhall, supra, 347 n. 18 (quoting comments of Rep. Lawlor). Those are all benefits that may be claimed by individuals who are still part of the work force. The Court also quoted a comment from the legislative history by Sen. Michael P. Meotti, who said that the offset provision “requires that total disability benefits be reduced by any Social Security retirement benefits received.” Id., 347 n. 17, (quoting 36 S. Proc., Pt. 11, 1993 Sess., p. 3934) (emphasis added). The legislative focus was consciously directed at workers’ compensation claimants who had opted to retire from the work force, and who were collecting both wage-loss benefits and social security.

A claimant who has not yet reached full retirement age under the Social Security Act and who has not opted to collect early retirement benefits is still eligible for full employment, and cannot be presumed to have left the work force. Such a claimant may intend to return to work, and in fact do so, once total disability has ceased. As the claimant contends in her brief, by applying the § 31-307(e) offset to all temporarily totally disabled claimants over the age of 62, we would be placing financial pressure on such claimants to apply for social security immediately. This would not only hasten their departure from the work force, but would cause them to receive reduced social security benefits for the remainder of their lives, as discussed above.

Such a result would not comport with Rayhall, id. nor with the remedial nature of the Workers’ Compensation Act, which is intended not only to provide relatively quick and certain compensation to injured workers in exchange for the elimination of potential employer tort liability; Doe v. Yale University, 252 Conn. 641, 672 (2000); but to encourage and even facilitate the return of the employee to the work force once the person is capable of doing so. See, e.g., § 31-313 (employer must transfer injured employee to available light duty work); § 31-283a (rehabilitation programs for employees suffering compensable injuries). Furthermore, the federal government began to increase the age of full retirement in 1983, in recognition of the fact that general conditions of health and longevity had improved for social security recipients, and payouts would cost more per person due to longer life expectancies. See, 1983 Greenspan Commission on Social Security Reform, Appendix C, available at (last visited May 5, 2006)(majority of Commission recommended that long-range financial requirements of social security program be met via “deferred, gradual increase in the normal retirement age”); Pub.L. 98-21, amending 42 U.S.C. § 301 et. seq. Encouraging workers’ compensation claimants to claim social security benefits prior to their full retirement age would frustrate the purpose of these changes, which are intended to persuade workers to remain in the work force for a longer period of time.

The trial commissioner’s decision is therefore affirmed.

Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno concur.

1 Both parties subsequently requested that this issue be reserved to the Appellate Court pursuant to § 31-324 C.G.S. However, no question was framed for reservation to that body. See Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793 (1999)(discussing proper scope of reserved questions). It is not the duty of this board to construct questions for reservation to the Appellate Court. Further, it is wholly within this board’s discretion to reserve a case, regardless of the parties’ agreement on that issue, or lack thereof. BACK TO TEXT

2 Section 31-307(e) C.G.S. provides, “Notwithstanding any provision of the general statutes to the contrary, compensation paid to an employee for an employee’s total incapacity shall be reduced while the employee is entitled to receive old age insurance benefits pursuant to the federal Social Security Act. The amount of each reduced workers’ compensation payment shall equal the excess, if any, of the workers’ compensation payment over the old age insurance benefits.” BACK TO TEXT

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