Davis v. State of Connecticut Dept. of Children & Families

CASE NO. 4992 CRB-8-05-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 8, 2006

TRINENE DAVIS

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT DEPT. OF CHILDREN & FAMILIES

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

GAB ROBINS NORTH AMERICA, INC.

ADMINISTRATOR

APPEARANCES:

The claimant was represented by John J. Esposito, Jr., Esq., Esposito Law Firm, 373 Humphrey Street, New Haven, CT 06511.

The respondent was represented by Philip Schulz, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the August 25, 2005 Finding and Award of the Commissioner acting for the Eighth 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.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent-employer appeals from the August 25, 2005 Finding and Award of the Commissioner acting for the Eighth District. In proceedings before the trial commissioner the respondent claimed it was entitled to a credit for 115 hours (15 days) of sick time donated to the claimant from her union’s sick leave bank. The trial commissioner held that the respondent was not entitled to a credit for 115 hours of sick time. The respondent filed this appeal.

The pertinent facts in this matter are as follows. The claimant sustained a compensable injury to her low back on November 30, 2000. On March 5, 2002 the claimant sustained injuries to her shoulders, low back, left knee and arm. These injuries were the subject of an approved Voluntary Agreement dated October 1, 2002. In an approved Voluntary Agreement dated October 9, 2003 the respondent agreed to pay the claimant for a 5% permanent partial disability to her left leg. Thereafter, the respondent filed a Form 43 in March, May and June 2004. Each of the Form 43s disclaimed liability for medical treatment alleging the treatment was made necessary by conditions unrelated to the claimant’s accepted injuries. Additionally, on July 7, 2004 the respondent filed a Form 36 based on the June 21, 2004 report of Dr. Aris Yannopolis. In that report Dr. Yannopolis referenced claimant’s November 2003 heart attack, and her long standing low back pain. At the time of his examination of the claimant, Dr. Yannopolis noted the claimant was six months pregnant and that she could return to her job following her pregnancy.

Additionally, it appears in the proceedings below, evidence was presented that the claimant’s absence from work was not related to either her pregnancy or cardiac condition. It appears the trial commissioner relied on this evidence in reaching his conclusion. The claimant was entitled to total disability benefits for the period of June 17, 2004 through September 14, 2004. However, the claimant testified that after June 17, 2004 she used all her sick time, vacation time and personal leave. Consequently, she accepted her union sick bank’s donation of 115 hours of sick time.

The respondent argued that pursuant to § 31-314 C.G.S. it was entitled to a credit for the 115 hours of time donated through the collective bargaining agreement’s sick bank provision. The trial commissioner was not so persuaded and held in ¶ bb:

I find, conclude and reject the contentions set forth by the respondent that it is entitled to a credit of 115 hours of donated sick time which the claimant received from the agency sick bank. While acknowledging this may be reviewed as a double recovery for the claimant, the undersigned is unaware of any authority under which it could be ordered reinstated to the agency sick bank. I have every expectation that the claimant will voluntarily return this time or its monetary value to her generous co-employees’ sick bank.

The issue presented for review is whether the trial commissioner erred in failing to find the respondent was entitled to a credit under § 31-314.1 Section 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.

The respondent contends the failure of the trial commissioner to permit a credit for the donated sick time provides the claimant with a double recovery. As the respondent notes public policy disfavors double recoveries. See e.g., Nichols v. The Lighthouse Restaurant, Inc., 246 Conn. 156 (1998). Here the respondent employer, in effect, advanced the claimant compensation for her injury. In this instance that advance was in the form of sick time, an employee benefit provided by the employer. Therefore, we agree that the respondent is entitled to a credit for the sums paid under its sick time benefit plan. In Hammick v. Hartford, 4608 CRB-1-03-1 (December 29, 2003) this tribunal held sums paid pursuant to a collective bargaining agreement and paid on account of an injury were subject to offset under § 31-314. Additionally, we held that while we had the authority to consider sums paid under a collective bargaining agreement, we did not have jurisdiction to interpret the terms of the agreement.

We believe the reasoning of the Supreme Court in Starks v. University of Connecticut, 270 Conn. 1 (2004) and its discussion regarding § 31-314 lends further support to our conclusion. The Starks court referenced the language, legislative history and case history of § 31-314 and noted:

Because § 31-314 is captioned “[a]llowance for advance payments, “we find persuasive . . . 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. “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).

Starks, supra, 19-20.

Given that claimant’s entitlement to total disability benefits was contested by the respondent, it stands to reason that payments to the claimant compensating the claimant for time lost for a period later determined as a period for which she was entitled to total disability, are advance payments made by the employer on account of her compensable injury. We think the payments made by the employer under its sick leave and collective bargaining agreement obligations were on account of sums that subsequently became payable by the employer and thus meet the criteria of advance payments for which § 31-314 permits a credit. Cf., Halloran v. New Haven, 4770 CRB-3-04-1 (December 22, 2004). (Offset under § 31-314 not permitted where advanced sums were found to have been paid because of the injury and not on account of the injury.)

There is no doubt the issue before the trial commissioner and this tribunal presents somewhat of a Hobson’s Choice, i.e., either party will enjoy a windfall of some sort. Clearly, the trial commissioner attempted to weigh the equities and create a resolution in which the party getting the windfall might be morally assuaged to do what our Workers’ Compensation Act cannot compel, replenish the Sick Bank by the party enjoying the windfall. We suppose the commissioner believed his appeal to a party’s higher consciousness would enjoy a better chance of compliance when directed at an individual claimant as opposed to a monolithic bureaucratic organization. Much as we appreciate the trier’s attempt to resolve the matter by balancing the equities, we believe § 31-314 supports the resolution sought by the respondent appellant.

We therefore reverse the August 25, 2005 Finding and Award of the Commissioner acting for the Eighth District and order the respondent is entitled to a credit for the 115 hours of sick time paid to the claimant.

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

1 We note no Motion To Correct was filed thus the issue presented is a question of law. BACK TO TEXT