Syzmaszek v. City of Meriden

The claimant was represented by Thomas A. Weaver, Esq., Law Firm of Thomas A. Weaver, Esq., 721 Broad Street, Meriden, CT 06450.

The respondent was represented by John Quinn, Esq., Furniss and Quinn, P.C., Stoneleigh Building, 248 Hudson Street, Hartford, CT 06106.

This Petition for Review from the May 7, 2008 Finding & Award/Finding & Dismissal of the Commissioner acting for the Sixth District was heard November 21, 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. This matter involves whether an unpaid permanent partial disability award which remains unpaid during the claimant’s life is subject to a credit against temporary total disability benefits paid to the claimant during his or her lifetime. In the instant matter, the claimant’s permanent partial award had been stayed while he received temporary total disability benefits. The temporary total disability benefits paid to the claimant during the course of his lifetime exceeded the permanent partial disability award due to the claimant’s estate. The respondent advanced the argument that precedent permitted them to take a credit on the temporary total benefits and therefore, the claimant’s estate was not entitled to an award. The trial commissioner agreed with this position, finding the case of Garland Hall v. Gilbert & Bennett Manufacturing Co., 1449 CRB 7-92-7, 12 Conn. Workers’ Comp. Rev. Ops. 146 (April 7, 1994) (“Garland Hall”) governed the facts in this case. On appeal we concur with the trial commissioner.

The parties submitted a Stipulation of Facts which was the basis of the trial commissioner’s decision. The jurisdictional facts in the case were established in a 1984 Voluntary Agreement acknowledging the claimant had “hypertension/heart disease” as defined under § 7-433c C.G.S. The claimant received a 15% permanent partial disability rating which was paid in full by the respondent, City of Meriden. The claimant received 117 weeks of benefits which expired approximately in October 1986. Subsequently, in 1990 the claimant suffered a catastrophic stroke which left him with major neurological deficits including a seizure disorder, aphasia and paralysis of his right arm and leg. Due to the stroke, the claimant received temporary total disability benefits from the date of the stroke in March 1990 until his death on May 16, 2007.

The claimant sought benefits for additional specific indemnity for the permanent impairment resulting from his stroke while he was receiving temporary total disability benefits. This was resolved in an Award By Stipulation to Date dated December 21, 2000 and approved on January 11, 2001. The respondent agreed to pay the claimant an additional 70% permanency (546 weeks) over and above the 15% entered on the Voluntary Agreement for specific approved in 1984, with a date of maximum improvement on November 24, 2000, to wit “it is further agreed that this additional benefits of 70% of the heart shall be paid weekly over 546 consecutive weeks and shall commence with the date of November 24, 2000 which the parties agree shall be the date of maximum medical improvement.” Finding, ¶ 7. At the time of his death in 2007, the claimant was a widower and left three adult children as survivors.

The trial commissioner considered these facts in rendering his conclusion. He concluded that the parties had agreed to have the claimant paid an additional 546 weeks of permanency benefits in the approved 2001 stipulation. The trial commissioner concluded the monetary value of this stipulation as $167,867.70. He also concluded that the City of Meriden paid the claimant temporary total disability benefits from November 24, 2000 up until the time of his death on May 16, 2007, which amounted to about $211,634.36. Upon considering the facts, he then determined that “[t]he case of Garland Hall v. Gilbert & Bennett Manufacturing Company, 12 Conn. Workers’ Comp Rev. Op. 146 (1994) is CONTROLLING.” The commissioner applied Garland Hall, as standing

Thus, based on the trial commissioner’s interpretation of Garland Hall, the claimant’s heirs would be entitled upon the claimant’s death to whatever unpaid permanency benefits were left after crediting the respondent for temporary total benefits paid by the respondent. Since the respondent paid more temporary total disability benefits to the claimant than the unpaid balance of permanency benefits; no additional benefits were due.

Counsel for the claimant has appealed this Finding & Award/Finding & Dismissal on the basis that the trial commissioner misapplied the law. The argument presented is that the trial commissioner misapplied the law by allowing the respondent a credit for its paid temporary total disability against the unpaid permanency award. The primary case cited by the appellant for this proposition is Cappellino v. Cheshire, 226 Conn. 569 (1993).

In Cappellino the respondent argued that when a claimant is awarded benefits under § 31-307 C.G.S. for temporary total disability after the claimant already had been awarded § 31-308 C.G.S. benefits for partial disability the respondent was then discharged from the obligation to pay the balance of the § 31-308 benefits upon the claimant’s death. Noting the general rule that § 31-308 benefits ordinarily survive the death of the employee; the Supreme Court rejected this legal interpretation “[w]e therefore reject the defendant’s argument that the payment of temporary total disability benefits automatically discharged its obligation under the voluntary agreement to pay permanent partial disability benefits.” Id., at 578.

The opinion in Cappellino was released on July 27, 1993. On August 17, 1993 the Supreme Court released its opinion in McCurdy v. State, 227 Conn. 261 (1993). The McCurdy opinion was the basis of this panel’s subsequent Garland Hall decision and was cited as controlling in the text of the parties’ approved December 21, 2000 stipulation in the present case.

In McCurdy the Supreme Court reversed the judgment of the Appellate Court in McCurdy v. State, 26 Conn. App. 466 (1992) on the issue of whether the claimant’s estate was entitled to permanent partial disability benefits upon the claimant’s death. Since the claimant in McCurdy had attained maximum medical improvement prior to death, the Supreme Court concluded that a permanent partial disability award was due at that point. In footnote No. 9 of McCurdy, supra, the Supreme Court, however, suggested that although a claimant obtains an entitlement to a permanent partial award at the date of maximum medical improvement, from that point forward the award is subject to a credit from any subsequent temporary total disability benefits awarded to the claimant.1

The McCurdy opinion further discusses whether an award for permanent partial disability survived the death of the claimant and who was entitled to such an award. The Supreme Court rejected the argument of the respondent that Bassett v. Stratford Lumber Co., 105 Conn. 297 (1926) prevented the decedent’s estate from obtaining the award; determining that case was decided on the basis of whether a dependent spouse was entitled to the award. Since in the present case there is no dependent spouse, this issue is not material to resolving the present dispute. A prior case, Forkas, Admrx. v. International Silver Co., 100 Conn. 417 (1924) stands for the proposition that our law “allowed the estate of a deceased worker to recover the portion of a permanent partial disability award that remained unpaid at the worker’s death.” McCurdy, supra at 270. We note the parties agreed in the approved December 21, 2000 stipulation that the McCurdy case governs the outcome of the present dispute. (Exhibit C, Stipulation of Facts).

The issue left unresolved by the Supreme Court in McCurdy was how to address a situation when a claimant was paid a substantial amount of total disability benefits following the date of maximum medical improvement. We determined how to ascertain what portion of a permanent partial disability award would remain unpaid under those circumstances in Garland Hall, supra.

In Garland Hall, the trial commissioner denied the claimant’s request for a specific award for permanency benefits to be paid, citing in part the Appellate Court decision in McCurdy. This board reversed the trial commissioner, in part because the Supreme Court had reversed the Appellate Court in McCurdy; and specifically ruled that it was appropriate to award concurrent relief for both temporary total and permanent partial disability so long as the awards were paid consecutively. The board held in Garland Hall that upon a claimant’s request at the date of maximum medical improvement the specific award should be granted “with the payments deferred until such time as he is no longer totally disabled or dies” since “the commissioner does not have the discretion to deny such an award if the worker requests that award.” Id.

However, this board in Garland Hall determined that footnote No. 9 of the McCurdy decision was binding law governing this Commission. “The McCurdy court, however, made clear that ‘temporary total disability payments that were made to him between that date and the date of his death can be deducted from a permanent partial disability award.’” Id. The very situation before us was outlined in the opinion.

We cannot find any error on the part of the trial commissioner in the manner in which he applied the Garland Hall precedent to the facts in this case. Counsel for the claimant makes a further argument; however. He argues that the trial commissioner should have disregarded those elements of the Garland Hall decision he characterizes as “dicta” and have reached back to the Cappellino case to find there was no credit for temporary total disability benefits. We reject this approach as inconsistent with the concept of stare decisis.

In Badawieh v. Federal Express Corporation, 5240 CRB-7-07-6 (September 4, 2008) we explained the role stare decisis plays in our deliberations.

We have not been presented with such a compelling argument that we believe Garland Hall must be overruled by this board. The Garland Hall precedent is entirely consistent with the appellate precedent existing at that time and has not been rendered suspect by any subsequent Appellate Court or Supreme Court decision.2

Further support for this stance can be found in the concept of legislative acquiescence. More than 15 years have elapsed since the Supreme Court’s McCurdy decision and nearly 15 years have elapsed since our Garland Hall decision. As we held in Kronick v. Ansonia Copper & Brass Co., 5127 CRB-5-06-8 (August 15, 2007), citing Hanson v. Transportation General, 245 Conn. 613, 619 (1998);

The General Assembly has not chosen to enact any remedial legislation to modify the outcome in the McCurdy and Garland Hall cases. The non-response from the General Assembly strongly suggests that they are amenable as to how Chapter 568 was applied by the Supreme Court and this board in those cases.

We are cognizant of the position of appellant’s counsel that awards for permanent partial disability should be treated as entirely different awards than awards for temporary disability, and therefore should not be subject to credits or offsets. That is not the present law in Connecticut and as this board’s chairman pointed out in Kronick, supra.

As a result, stare decisis compels us to affirm the trial commissioner’s Finding & Award/Finding & Dismissal and dismiss this appeal.

Commissioners Charles F. Senich and Amado J. Vargas concur in this opinion.

1 The claimant in McCurdy attained maximum medical improvement on/or about October 20, 1987 and sought an award of permanent partial disability benefits on December 15, 1987. He died from causes unrelated to the compensable injury on December 24, 1987. Id., at 263-265. The opinion is silent on whether some de minimus amount of temporary total disability benefits were paid to the claimant in this very short period of time. BACK TO TEXT

2 Counsel for the claimant argues that since the same panel of Supreme Court justices that decided Cappellino also decided McCurdy “that footnote No. 9 of McCurdy can be treated as mere dicta.” Appellant’s Brief, p. 12-14. We reach the opposite conclusion. Since the same panel of jurists that decided Cappellino chose to include this footnote in the McCurdy decision they released three weeks later, a reasonable inference could be drawn that footnote 9 in McCurdy was a willful and intentional effort to address what the Court may have believed was a lacuna present in their prior decision. BACK TO TEXT