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Russell v. State of Connecticut Dept. of Developmental Services Southbury Training School

CASE NO. 5212 CRB-5-07-3



MARCH 18, 2008












The claimant was represented by Edward T. Dodd, Esq., Dodd, Lessack, Dalton & Dodd, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The respondent was represented by Michael J. Belzer, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the Finding of the Commissioner acting for the Fifth District was heard September 28, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Nancy E. Salerno.


JOHN A. MASTROPIETRO, CHAIRMAN. The present appeal is a situation wherein we must ascertain the “plain meaning” of a statute. The claimant was denied total disability benefits under § 31-307 C.G.S. She has appealed arguing that the text of § 31-307(a)(c) C.G.S. mandates an entitlement to “permanent” total disability benefits. We believe the trial commissioner appropriately applied the law and dismiss this element of the claimant’s appeal. The claimant has also appealed the trial commissioner’s ruling that denied with prejudice her claim for § 31-308a C.G.S benefits. We agree with the claimant that the trial commissioner erred in her ruling on this issue. Therefore, we uphold the claimant’s appeal as to whether she is barred from seeking future § 31-308a C.G.S benefits; and affirm the trial commissioner’s Finding and Order on all other issues.

The trial commissioner found the following facts in her Finding and Order dated March 12, 2007. The claimant had suffered two compensable back injuries on June 12, 1991 for which a jurisdictional voluntary agreement was approved on November 6, 1991. She treated originally with Dr. Michael Craig and later with Dr. Richard Matza. A voluntary agreement awarding the claimant permanency benefits was approved on December 29, 1992. The claimant suffered an additional injury at work on July 16, 1993, but all medical benefits paid by the respondent have been paid pursuant to the 1991 date of injury. Dr. Matza diagnosed the claimant in 1993 and 1994 with additional ailments: pectoral major muscle strain and bilateral carpal tunnel syndrome. He referred the claimant to a chiropractor as he deemed the claimant’s ailments “chronically resistant” to treatment. While the claimant was cleared by Dr. Matza to return to light duty work on September 9, 1994, she was terminated by the respondent that year as she could not return to her prior position. She has not worked for any employer since her termination from the State.

During the mid and late 1990’s various physicians opined as to the claimant’s level of disability and the actual ailments she was suffering. In November 1995 Dr. Matza opined to a 17% permanency rating for the claimant’s neck and a 12% rating for her back. A September 12, 1996 voluntary agreement increased her permanency rating for both the neck and the back by 2.5%. Dr. Matza disabled the claimant from work in 1998. She complained of headaches and was treated between October 1993 and August 1998 by Dr. Kenneth Kaplove, a psychiatrist/neurologist. The respondent had their examiner, Dr. William Fisher, examine the claimant on June 17, 1999. He diagnosed the claimant with hyper-reactivity, significant functional overlay, hypochondriasis and compensation neurosis. He found her at maximum medical improvement. In December 1999 Dr. Matza opined that the claimant lacked a work capacity, although he did not diagnose the claimant with any ailment other than neck and back strain. He modified her permanency ratings to 10% of her neck and 15% of her back.

From May 2000 to March 31, 2005 the claimant treated with Dr. A. Roger Bobowick for her headaches. She had been treated in May 2000 for a possible auto immune pulmonary problem. Her shift to Dr. Bobowick was contemporaneous with a dispute with Dr. Kaplove over the dosage of medication. She was taking Depakote 250, B12, Premarin and Potassium, Lasix, Norvasc, Synthroid, Detrol, Robaxin, Hydrochlodone, Sinemet 50-200 and Klonopin.

In April 2002 Dr. C. David Bomar examined the claimant for the respondent and determined her 1991 and 1993 work injuries had long since been resolved and she was at maximum medical improvement. While he placed her on lifting restrictions and functional restrictions he did not find she lacked an ability to work. He also found her orthopedic treatment was “prolonged and unnecessary.” On October 15, 2003 the respondent had Dr. Frank Schildgen examine the claimant. He cleared the claimant to light duty work and opined to a 3% permanent partial disability rating. He also found no further orthopedic treatment was necessary. Based on this report, the respondent filed a Form 36 on November 19, 2003 to halt temporary total disability benefits. A follow-up commissioner’s examination by Dr. W. Jay Krompinger corroborated Dr. Schildgen’s findings; assigning a 5% permanency rating to the claimant’s lumbar spine and cervical spine and finding the claimant displayed “volitional restriction of her spinal mechanics.” On April 13, 2004 the Form 36 was approved retroactive to November 30, 2003.

The claimant contested the approval of the Form 36 and maintained that she was still totally disabled from work. She said she had been unable to find work despite a job search since early 2004. She presented a vocational assessment from a vocational expert, Albert Sabella, who opined the claimant was still totally disabled and attributed her disability to the 1991 and 1993 compensable injuries. Another examination, conducted by REACT in April 2004, found that the claimant had a light duty work capacity. In March 21, 2005, Dr. Bobowick prepared an office note, finding the claimant had “depression and illness behavior” and prescribing a number of medications responsive to these concerns.

The trial commissioner upheld the Form 36, finding it was supported by the weight of the medical evidence. She found the opinion of Dr. Bomar and Dr. Schilgen credible, as well as the opinions of Dr. Fisher and Dr. Krompinger on the issue of functional overlay. She found Dr. Kaplove and Dr. Bobowick credible in regards to the claimant’s psychiatric condition. While the trial commissioner found Mr. Sabella credible in regards to the claimant’s present status of being temporarily totally disabled, she did not believe he properly considered the multitude of non-work related issues she was suffering from. She found REACT’s opinion credible as they found the claimant’s compensable injuries did not preclude her from a light work capacity.

The trial commissioner therefore awarded the claimant benefits under § 31-308a C.G.S. from November 21, 2003 to May 31, 2005. She denied the claimant’s demand for temporary total disability benefits and found as she had been originally injured in 1991, the terms of § 31-307a(c) C.G.S. were inapplicable to the claimant. She barred the claimant from making any future claim for § 31-308a C.G.S. benefits. The claimant filed a Motion to Correct which was denied and then pursued this appeal, limited to the issues concerning § 31-307a (c) C.G.S and § 31-308a C.G.S. benefits.

We will deal first with the issue concerning § 31-308a C.G.S. benefits since there is accord between the respondent and the claimant on this issue. The respondent concedes that a trial commissioner today cannot bind a future trial commissioner on the issue of whether or not a claimant is entitled to this form of relief. Were there a material change in the claimant’s condition she would have the right pursuant to § 31-315 C.G.S. to seek additional relief. Our decision last year in Serluca v. Stone & Webster Engineering, 5118 CRB-8-06-8 (July 13, 2007) is fully dispositive of this issue. In Serluca we cited Schenkel v. Richard Chevrolet, Inc., 4639 CRB-8-03-3 (March 12, 2004) for this proposition. “Though a commissioner may determine that current circumstances at the time of a formal hearing do not warrant further benefits or ongoing treatment such as pain management therapy, a claimant always retains the right to seek medical treatment or benefits for future time periods should circumstances change.” Id. Therefore, we vacate Order (6) from the Finding and Order of March 12, 2007.

The parties do not agree on the issue of whether the claimant now enjoys a lifetime entitlement to total disability benefits under § 31-307a (c) C.G.S. We believe the claimant’s position on this issue is erroneous for two reasons. First, we do not believe that the statute as amended confers any form of lifetime entitlement on a claimant already receiving § 31-307 benefits and its application is limited to calculating the cost of living adjustment for those benefits that have been awarded to a claimant. Secondly, even if we were to accept the claimant’s construction of the statute, by its very terms she could not qualify for this relief as her date of injury predates the effective date of the amendment.

The statute in question, § 31-307a (c) C.G.S., was added to Chapter 568 when the General Assembly enacted Public Act 97-205. The Act was entitled “An Act Restoring Workers’ Compensation Cost-of-Living Adjustments for Widows, Widowers, Orphans and Totally Disabled Workers and Including Certain Activities within the Definition of Injury under Workers’ Compensation.” The section in question was Section 4 of the Act, which amended § 31-307a by adding the following language.

c) On and after the effective date of this act, the weekly compensation rate of each employee entitled to receive compensation under section 31-307 as a result of an injury sustained on or after July 1, 1993, which totally incapacitates the employee permanently, shall be adjusted as provided in this subsection as of October 1, 1997, or the October first following the injury date, whichever is later, and annually on each subsequent October first, to provide the injured employee with a cost-of-living adjustment in his weekly compensation rate as determined as of the date of injury under section 31-309. If the maximum weekly compensation rate, as determined under the provisions of said section 31-309, to be effective as of any October first following the date of the injury, is greater than the maximum weekly compensation rate prevailing as of the date of injury, the weekly compensation rate which the injured employee was entitled to receive as of the date of injury shall be increased by the percentage of the increase in the maximum weekly compensation rate required by the provisions of said section 31-309 from the date of the injury to such October first. The cost-of-living adjustments provided under this subdivision shall be paid by the employer without any order or award from the commissioner. The adjustments shall apply to each payment made in the next succeeding twelve-month period commencing with the effective date of this act or the October first next succeeding the date of injury, whichever is later. With respect to any employee receiving benefits on the effective date of this act with respect to any such injury occurring on or after July 1, 1993, and before the effective date of this act or with respect to any employee who was adjudicated to be totally incapacitated permanently subsequent to the date of his injury or is totally incapacitated permanently due to the fact that the employee has been totally incapacitated by such an injury for a period of five years or more, such benefit shall be recalculate to the effective date of this act, to the date of such adjudication or to the end of such five-year period, as the case may be, as if such benefits had been subject to recalculation annually under the provisions of this subsection. The difference between the amount of any benefits which would have been paid to such employee if such benefits had been subject to such recalculation and the actual amount of benefits paid during the period between such injury and such recalculation shall be paid to the dependent not later than December 1, 1997, or thirty days after such adjudication or the end of such period, as the case may be, in a lump-sum payment. The employer or his insurer shall be reimbursed by the Second Injury Fund, as provided in section 31-354, for adjustments, including lump-sum payments, payable under this subsection for compensable injuries occurring on or after July 1, 1993, and before the effective date of this act, upon presentation of any vouchers and information that the Treasurer shall require.

We note that the title of § 31-307a C.G.S. is “Cost-of-living adjustment in compensation rates.” We believe we must consider the title of this statute and the title of this Public Act as relevant in considering the “plain meaning” of the text of this statute.1

“General Statutes § 1-2z provides that ‘[t]he 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.’ First Union National Bank v. Hi Ho Shopping Ventures, 273 Conn. 287, 291 (2005). Verrinder v. Matthew’s Tru Colors Painting & Restoration, 4936 CRB-4-05-4 (December 6, 2006).”

We cannot separate the title of this statute from the underlying text. The claimant points to the term “totally incapacitated permanently due to the fact that the employee has been totally incapacitated by such an injury for a period of five years, or more” imbedded in the statute and argues that this constituted a substantive change in the overall law governing total disability under § 31-307 C.G.S. The claimant argues that this language now establishes that once a claimant has received five years of benefits under § 31-307 C.G.S. a claimant now is “permanently” disabled and cannot be removed from this status. This argument fails to consider the context of the Public Act and the statute. The remainder of Section 4 of Public Act 97-205 deals with the calculation of cost of living benefits. We believe a reasonable inference is that had the General Assembly intended to enact a substantive change in the law governing total disability, they would have amended the statute governing eligibility for such benefits, and not the statute governing the award of cost of living adjustments.

We note that we have considered this issue in the past. Upon review of the claimant’s arguments, we believe our decision in Fiorillo v. Bridgeport, 4585 CRB-4-02-11 (December 17, 2003) is sound precedent which compels us to affirm the trial commissioner.

The language of § 31-307a(c) is specifically directed at the restoration of cost-of-living adjustments for permanently totally incapacitated individuals injured on or after July 1, 1993. For such individuals whose injuries occurred prior to the October 1, 1997 effective date of the statute, retroactive COLAs are required to be paid to any such employee whose injury “totally incapacitates the employee permanently,” and to “any employee who was adjudicated to be totally incapacitated permanently subsequent to the date of his injury or is totally incapacitated permanently due to the fact that the employee has been totally incapacitated by such an injury for a period of five years or more.”
The award of the trial commissioner in this case closely reflects this statutory language, which creates categories of claimants who are to be construed as “totally incapacitated permanently” for the purpose of entitlement to COLAs. There is no indication whether the trier understood this language as vesting the claimant with an irrevocable permanent total disability status akin to that of someone who has actually been adjudicated permanently totally incapacitated (e.g., as permanently totally disabled by virtue of § 31-307(c) C.G.S., which lists particular injuries that are presumptively considered to cause total incapacity, such as total loss of sight in both eyes, loss of both feet, or loss of both hands). However, as the issue is now before us, we take this opportunity to clarify that a claimant who is deemed “totally incapacitated permanently” under § 31-307a(c) by virtue of having been totally incapacitated for five years or more only maintains that designation as long as she is in fact entitled to total disability benefits pursuant to § 31-307 C.G.S. The five-year provision has no bearing on such a disability status. Thus, a claimant who ceases to be totally disabled by virtue of having a meaningful work capacity is no longer entitled to total disability benefits and the COLAs that attach to them. The terminology used in § 31-307a(c) should not be construed as having the power to redefine a claimant’s medical disability status for purposes of § 31-307; rather, it should be construed as creating categories that exist solely to determine entitlement to COLAs.

Further support for the concept that a claimant bears the continual burden of proving total disability can be found in such appellate precedents as Sellers v. Sellers Garage, 80 Conn. App. 15, 20 (2003) which, citing D’Amico v. Dept. of Correction, 73 Conn. App. 718 (2002) held as follows.

The plaintiff is entitled to total disability benefits under General Statutes § 31-307 (a) only if he can prove that he has a total incapacity to work . . . . The plaintiff [bears] the burden of proving an incapacity to work. Sellers, Id.

We do not believe that the 1997 amendments establishing § 31-307a(c) C.G.S. had a substantive effect on the determination of total disability claims. While we believe the plain meaning of the statute compels a claimant to continue to prove his or her eligibility for total disability benefits, even if we accepted the claimant’s statutory construction we do not believe she falls among those people entitled to “permanent disability” status.

The text of § 31-307a(c) C.G.S creates new procedures for calculating benefits for those claimants who were injured on or after July 1, 1993. The claimant’s original date of injury was found by the trial commissioner as June 12, 1991. The plain language of the statute establishes that claimants injured prior to July 1, 1993 and subsequent to October 1, 1969 , such as the claimant in this case, are governed by the terms of § 31-307a(a) C.G.S, which contains no language concerning “permanent disability.”2

We are satisfied that the trial commissioner applied the law properly in denying the claimant benefits under § 31-307a(c) C.G.S. With the exception of vacating Order (6), we affirm the trial commissioner’s Finding and Order and dismiss this appeal.

Commissioners Scott A. Barton and Nancy E. Salerno concur in this opinion.

1 “The title of legislation when it is acted upon by the legislature is significant and often a valuable aid to construction. . . .” Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 405 (1987); Travelers v. Insurance Co. v. Pondi-Salik, 262 Conn. 746, 755 (2003). BACK TO TEXT

2 The claimant asserts that Davis v. Forman School, 54 Conn. App. 841 (1999) stands for the proposition that Public Act 97-205 was “procedural” in nature, and thus should be given retroactive effect. This would overcome the claimant’s date of injury being prior to the applicable dates in § 31-307a(c) C.G.S. We do not find Davis stands for this proposition for a number of reasons. In Davis the statute changed the means to enforce the claimant’s existing right to payment hence “its procedural nature renders the date of injury rule inapplicable” since it did not result in “imposing, increasing or decreasing any substantive right or obligation of the employer or employee” Id., 857-858. In this situation, the claimant is asserting a new substantive right (the right to receive permanent total disability) she lacked prior to the enactment of the new statute. The claimant’s construction would make much of the rest of § 31-307a(c) C.G.S. governing dates of injury superfluous, which is inconsistent with the fundamental rules of statutory construction. Christopher R. v. Commissioner of Mental Retardation, 277 Conn. 594, 608 (2006). BACK TO TEXT


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