DeLarosa v. State of Connecticut Department of Correction

CASE NO. 5322 CRB-8-08-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 9, 2009

ROBERT DELAROSA

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT DEPARTMENT OF CORRECTION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

GAB ROBINS OF NORTH AMERICA

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Matthew A. Lucarelli, Esq., Tynan & Iannone, 250 Wolcott Road, Wolcott, CT 06716.

The respondent was represented by Philip Schulz, 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 January 29, 2008 Finding and Dismissal of the Commissioner acting for the Eighth District was heard August 29, 2008 before a Compensation Review Board Panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Charles F. Senich and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the January 29, 2008 Finding and Dismissal of the Commissioner acting for the Eighth District. In that Finding and Dismissal the trial commissioner concluded that claimant’s election of benefits pursuant to § 5-142(a) did not require the respondent to pay annual increments and adjustments after the 260th week of total disability benefits.

The pertinent facts in this matter are as follows. The claimant was a correction officer who on October 24, 1998 was injured while attempting to restrain an inmate during a physical altercation. The claimant sought benefits pursuant to § 5-142(a). Sec. 5-142(a) provides members of a certain class of state employees with full pay for a period of time if the injury occurred while in the performance of certain duties. A claimant who qualifies may elect to proceed under § 5-142(a) and, for a period of time, may receive a greater weekly compensation rate than that accorded under chapter 568.

Sec. 5-142(a) provides in pertinent part:

If any member . . . of any correctional institution . . . sustains any injury (1) while . . . in the actual performance of . . . guard duties . . . or while attending or restraining an inmate of any such institution or as a result of being assaulted in the performance of his duty and (2) that is a direct result of the special hazards inherent in such duties, the state shall pay all necessary medical and hospital expenses resulting from such injury. If total incapacity results from such injury, such person shall be removed from the active payroll the first day of incapacity, exclusive of the day of injury, and placed on an inactive payroll. He shall continue to receive the full salary which he was receiving at the time of injury subject to all salary benefits of active employees, including annual increments, and all salary adjustments, including salary deductions, required in the case of active employees, for a period of two hundred sixty weeks from the date of the beginning of such incapacity. Thereafter, such person shall be removed from the payroll and shall receive compensation at the rate of fifty per cent of the salary which he was receiving at the expiration of said two hundred sixty weeks so long as he remains so disabled. . . . Emphasis ours.

On May 13, 2005, pursuant to § 5-142(a), the claimant was removed from the respondent’s payroll and his benefits were adjusted. The respondent adjusted the claimant’s benefit level to fifty per cent of the salary he was receiving at the expiration of 260 weeks.

The claimant argues that § 5-142(a) should be administered such that after the expiration of the 260 weeks, the claimant’s benefit calculation should be based on fifty percent of all annual increments and salary adjustments occurring after the expiration of the 260 weeks. The trial commissioner was not so persuaded, nor are we.

In support of its argument the claimant contends that the broad humanitarian purpose of the Act supports the calculation of benefits as suggested by the claimant. See e.g., Jones v. Mansfield Training School, 220 Conn. 721 (1992) (claimant was permitted to pursue remedy under chapter 568 as § 5-142(a) was not the exclusive remedy for the class of employees to whom the claimant belonged). We believe the language in § 5-142(a) is clear and unambiguous and thus, pursuant to § 1-2z1 we are to construe the terms of the statute consistent with its plain language. See also, Vecca v. State, 29 Conn. App. 559 (1992) (term full salary under § 5-142(a) did not include overtime, shift differential, or maintenance pay as words of a statute are to be interpreted as written). The text of the statute at issue indicates that after the expiration of the 260 weeks, the claimant “shall be removed from the payroll and shall receive compensation at the rate of fifty per cent of the salary which he was receiving at the expiration of said two hundred sixty weeks so long as he remains so disabled. . . .”

Finally, at some point in the proceedings, a challenge was made as to the timeliness of the claimant’s appeal. Appended to the claimant’s brief was a printout of the United States Postal Services electronic tracking record indicating that the appeal was filed within the time period set out in § 31-301(a).

We therefore affirm the January 29, 2008 Finding and Dismissal of the Commissioner acting for the Eighth District.

Commissioners Charles F. Senich and Amado J. Vargas concur.

1 Sec. 1-2z 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. BACK TO TEXT