Thomas v. State of Connecticut Dept. of Developmental Services

CASE NO. 5293 CRB-8-07-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 22, 2008

JANICE THOMAS

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT DEPT. OF DEVELOPMENTAL SERVICES

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

GAB ROBINS OF NORTH AMERICA, INC.

ADMINISTRATOR

APPEARANCES:

The claimant was represented by John D’Elia, Esq., and Christopher DePalma, Esq., Kennedy, Johnson, D’Elia & Gillooly, 555 Long Wharf Drive, 13th Floor, New Haven, CT 06511.

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

This Petition for Review from the November 14, 2007 Memorandum of the Commissioner acting for the Eighth District was heard June 27, 2008 before a Compensation Review Board panel consisting of Commissioners Ernie R. Walker, Charles F. Senich and Scott A. Barton.

OPINION

ERNIE R. WALKER, COMMISSIONER. The respondent in this matter has taken an appeal from the November 14, 2007 Memorandum of the Commissioner acting for the Eighth District. The issue before the commissioner was limited to “whether the respondent is entitled to claim a lien against the entire amount of proceeds the claimant received in the settlement of her third party action or whether the respondent is entitled [to] proceeds as claimed in its lien prior to the settlement of the third party claim.” See November 14, 2007 Memorandum. The trial commissioner concluded the respondent was limited to the proceeds of claimant’s third party settlement up to the amount claimed in the respondent’s lien letter of January 12, 2004,1 $2,523.43 and the respondent was not entitled to an offset or credit for future benefits to which the claimant may be entitled under the Workers’ Compensation Act. The respondent took this appeal.

The pertinent facts are as follows. The claimant was employed by the respondent’s Department of Mental Retardation. On January 29, 2004 she slipped and fell on an icy sidewalk leading into her work place. The claimant claimed benefits pursuant to the Workers’ Compensation Act for injuries to her low back, left shoulder, left master hand and neck. Ultimately, the claimant’s claim was adjudicated before former Commissioner A. Thomas White, Jr., acting on behalf of the Eighth District. In his August 17, 2006 Finding and Award, Commissioner White determined that the claimant’s injuries were compensable and the claimant was entitled to temporary total and temporary partial benefits for certain periods. Additionally, he found the respondent liable for certain medical bills, and unreimbursed medical costs assumed by the claimant.

Sec. 31-293(a) provides an employee with the right to pursue an action against anyone other than the employer who caused damages to the employee for which a claim for chapter 568 benefits may be made. Additionally, the Act provides an employer who has become obligated to pay such benefits, with a right to recover sums for which it is liable under chapter 568. The Act provides:

For the purposes of this section, the claim of the employer shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of the injury.

In 1993, § 31-293(a) was amended by Public Act 93-228 § 7. Prior to the Act’s amendment, the only means by which an employer could avail itself of the statute’s remedy was to either initiate an action against the tortfeasor or intervene in an action commenced by the claimant against a third party tortfeasor. Furthermore, the pre-1993 version of § 31-293(a) provided specific steps as to what an employer must do in order to intervene in a claimant’s action against the tortfeasor. The failure to comply with the procedure outlined in § 31-293(a) resulted in the respondent’s forfeiture of its right of recovery. See e.g. Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 490 (1987).

However, as part of the reform of the Workers’ Compensation Act effected by Public Act 93-228, § 31-293(a) was amended. The amendment conferred a lien right to employers who paid compensation to claimants pursuant to chapter 568 and where the claimant received a judgment or settlement from a third party action. Public Act 93-228 § 7 provided in pertinent part:

Notwithstanding the provisions of this subsection, when any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31-284, a legal liability to pay damages for the injury and the injured employee has received compensation for the injury from such employer, its workers’ compensation insurance carrier or the Second Injury Fund pursuant to the provisions of this chapter, the employer, insurance carrier or Second Injury Fund shall have a lien upon any judgment received by the employee against the party or any settlement received by the employee from the party, provided the employer, insurance carrier or Second Injury Fund shall give written notice of the lien to the party prior to such judgment or settlement.

It is the respondent’s contention that its lien is not limited to the amount specified in its lien letter. We agree.

As stated above, the lien provision of Public Act 93-229 § 7 merely amended § 31-293(a) by according respondents a lien right. However, the amendment’s language did not detail what amounts were to be protected by the lien provision. In fact, as the appellant points out, the amending lien provision was silent on that issue. When the legislature enacted Public Act 93-229 § 7, it merely engrafted the lien provision onto already existing law.

When confronted with issues requiring construction of a statute, we are to follow § 1-2z which provides:

The 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. (Emphasis ours).

In the instant case, we need not reach so far as to consider the amending language in relationship to other statutes, as we can discern the meaning of the statute from the text of the unaltered parts of § 31-293(a) existing prior to the enactment of Public Act 93-229 § 7. Sec. 31-293(a) provides as noted above, the respondent is entitled to the amounts paid to the claimant and to a credit for future benefits to which the respondent may be liable on account of the injury. Reading § 31-293(a) as a whole compels us to conclude that the respondent is entitled to a lien against the entire amount of the proceeds the claimant received in the settlement of her third party action. Construing § 31-293(a) as we have is not only consistent with § 1-2z, but also public policy discouraging a claimant’s double recovery. See e.g., Enquist v. General Datacom, 218 Conn. 19 (1991).

We, therefore, reverse the November 14, 2007 Memorandum of the Commissioner acting for the Eighth District.

Commissioners Charles F. Senich and Scott A. Barton concur.

1 The date of the lien letter appears to be a scrivener’s error. It is not possible to determine what the appropriate date of the letter is on the basis of the record before us. However as the existence of the letter and the amount claimed are not in dispute the actual date of the letter is not material to the outcome of this matter. BACK TO TEXT