You have reached the original website of the
CASE NO. 5598 CRB-3-10-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 12, 2011
STATE OF CONNECTICUT JUDICIAL BRANCH
GAB ROBINS NORTH AMERICA
The claimant was represented by Thomas E. Farver, Esq., Farver & Hefferman, 2858 Old Dixwell Avenue, Hamden, CT 06518.
The respondent was represented by Kenneth H. Kennedy, Jr., Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141.
This Petition for Review from the September 21, 2010 Finding and Dismissal of the Commissioner acting for the Third District was heard April 1, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Christine L. Engel and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter has appealed from a Finding and Dismissal which determined he was not entitled to reinstatement to his prior post by virtue of § 5-142(a) C.G.S.1 We find the trial commissioner reached an appropriate decision herein based on the applicable statute. Therefore, we affirm the trial commissioner and dismiss this appeal.
The trial commissioner reached the following findings at the conclusion of the formal hearing. She found that on June 10, 2005 the claimant was employed as a Judicial Marshal II by the Connecticut Judicial Department, and on that date he was injured while transporting prisoners. An assault by a prisoner led to the claimant sustaining injuries to his left and right knees. As a result of his injuries, the claimant underwent multiple knee surgeries, was deemed to be temporarily total disabled and elected benefits pursuant to § 5-142(a) for total incapacity.
The respondent accepted the claim and has paid all applicable benefits. The claimant asserts he received temporary total disability benefits until such time as he notified his employer that he was released to full duty, without restrictions, effective February 10, 2009. The trial commissioner took administrative notice of a Form 36 filed by the respondent on January 8, 2008, and approved pursuant to an informal hearing that was held on March 28, 2008. The Form 36 found the claimant had a sedentary work capacity, based upon the opinion of Dr. Carl Nissen, the claimant’s treating physician. The Form 36 changed the claimant’s status from temporary total disability to temporary partial disability and had an effective date of January 8, 2008.
By a report dated February 10, 2009, Dr. Nissen released the claimant to full-duty without restrictions. The respondent refused to reinstate the claimant to his previous position, asserting that the claimant had been separated from state service in good standing as of March 31, 2008 pursuant to § 5-244 C.G.S.2
The parties dispute whether the claimant should now be returned to the state payroll. The claimant states that as he had been receiving benefits under § 5-142(a) C.G.S., he was to be placed on an inactive payroll status, and could not be terminated from his position until after the initial two hundred sixty weeks of his total incapacity. The respondent’s position is that the claimant was separated from state service in good standing as of March 31, 2008 pursuant to § 5-244 C.G.S. and the job protection the claimant would receive under § 5-142(a) C.G.S. is inapplicable as the claimant was not totally incapacitated when he left state service. The respondent further argues there is no statutory authority empowering a workers’ compensation commissioner to reinstate the claimant to his previous position, and therefore, the Commission lacks subject matter jurisdiction over this remedy.
Based on this record the trial commissioner concluded that the claimant was separated from state service in good standing on March 31, 2008. On that date the claimant was not totally disabled and had a sedentary work capacity. The trial commissioner further determined that she did not accept the claimant’s position that his status under § 5-142 C.G.S. required the respondent to restore him to full-time employment and to full wage benefits related thereto as of February 10, 2009. The trial commissioner further concluded that the respondent was correct in their position that § 5-142(a) was inapplicable to an employee who had already been separated from state service; and that the statute did not empower the Commission to reinstate the claimant to his prior position. In reaching this conclusion the trial commissioner relied on precedent in Discuillo v. Stone & Webster, 242 Conn. 570 (1997) that the Commission is a body that acts within statutorily limited powers. As a result, the trial commissioner dismissed the claimant’s claim.
The claimant filed a Motion to Correct, seeking to add findings supportive of being ordered to be reinstated to the state payroll. The trial commissioner denied these corrections in their entirety. The claimant has proceeded with this appeal. His position that § 5-142(a) C.G.S. acts to preclude the claimant from being terminated from state service for a five year period subsequent to becoming temporarily totally disabled from a work-related injury. As the claimant views it, once he became “totally incapacitated” there was “no statutory provision” to terminate him from state employment for the entire five year period delineated under § 5-142 (a) C.G.S. Claimant’s Brief, p. 8.
We find this is a case purely of statutory interpretation as the precedent cited in the claimant’s brief (Nelson v. State, 99 Conn. App. 808 (2007) and Gray v. State/Fairfield Hills Hospital, 12 Conn. Workers’ Comp. Rev. Op. 279, 1476 CRB-4-92-8 (June 7, 1994)) deal with determinations as to whether a claimant’s injuries were due to “special hazards” in their employment. This issue is not being litigated in this matter. In construing the applicable statute we are bound to apply the terms of § 1-2z C.G.S. which limits us to the “plain meaning” of the statute. First Union Natl. v. Hi Ho Mall Shopping, 273 Conn. 287, 291 (2005). In so construing the “plain meaning” of § 5-142(a) C.G.S., we also believe the context of our precedent governing “total incapacity” must be considered when adjudicating matters brought before our Commission.
In considering matters as to whether a claimant is totally disabled, “[w]e have consistently held it is the claimant’s burden to establish total disability” see Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 454 (2001); Damon v. VNS of CT/Masonicare, 5413 CRB-4-08-12 (December 15, 2009); Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007) and Gombas v. Custom Ai. Systems, Inc., 4996 CRB-4-05-9 (September 20, 2006). This determination is a factual matter where we must uphold the trial commissioner’s decision unless it is “clearly erroneous” Franklin v. State/Department of Mental Health & Addiction Services, 5224 CRB-8-07-4 (April 11, 2008).
We followed this reasoning in Kennedy v. State/Department of Correction, 5238 CRB-1-07-6 (June 26, 2008), which was a case involving § 5-142(a) C.G.S. benefits. In Kennedy we determined that the evidence presented before the trial commissioner did not justify the award of total disability benefits, as during the period in question the claimant performed some work and had been adjudged to have a work capacity. As a result, we concluded the trial commissioner’s award of total disability benefits was “clearly erroneous.” Since we concluded in Kennedy the language of § 5-142(a) C.G.S. tracked the holding in Osterlund v. State, 135 Conn. 498 (1949), we remanded the matter to ascertain if the claimant was entitled to another form of benefit other than total disability benefits.
Our reading of the plain meaning of § 5-142(a) C.G.S. is that the General Assembly intended to provide a more generous level of benefits to hazardous duty personnel both in terms of amount (100% salary for the first five years; 50% thereafter) and duration (no specific time limitation) recognizing the nature of these jobs. See Johnson v. State, 67 Conn. App. 330, 344 (2001) and Lucarelli v. State, 16 Conn. App. 65, 69 (1988). We further find these benefits are to be provided to the claimant “so long as he remains disabled.” The claimant’s interpretation of this statute would suggest that once a hazardous duty officer became totally disabled in the line of duty, he or she would be entitled to full salary for five years thereafter irrespective of their recovery and work capacity. This interpretation of statute is clearly inconsistent with binding precedent applying § 1-2z C.G.S., such as Southern New England Telephone Co. v. Cashman, 283 Conn. 644 (2007) “[w]hen more than one construction [of a statute] is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results.” Id., 652-653. As the Appellate Court pointed out in Lucarelli, supra, the statute at issue was enacted so as “to provide enhanced benefits by way of disability compensation.” Id., 69. In the absence of a “disability” we cannot find an entitlement to compensation.
Further support for this interpretation can be found by the very title of § 5-142(a) C.G.S., which is “Disability Compensation.” In Russell v. State/Dept. of Developmental Services/Southbury Training School, 5212 CRB-5-07-3 (March 18, 2008) we pointed out in another case applying § 1-2z C.G.S. that “[w]e cannot separate the title of this statute from the underlying text.” Id. This further supports our position that the absence of disability removed the right to compensation.3
In the present matter, the trial commissioner found that the claimant’s treating physician opined the claimant had a work capacity and this opinion was the basis of the respondent’s Form 36 filed on January 8, 2008. See Finding, ¶ 4 and Conclusion, ¶ C. We find the evidential record from Dr. Nissen’s report supports the trial commissioner’s findings on this issue and therefore, we must affirm her factual conclusions. Franklin, supra. The trial commissioner found the claimant was no longer “totally disabled.” In the absence of total disability, § 5-142(a) C.G.S. was no longer applicable to the claimant’s circumstances. Therefore, we affirm the trial commissioner’s conclusions in Conclusions, ¶¶ C and D.
We address briefly the claimant’s appeal as to whether the trial commissioner erroneously concluded she lacked the authority to reinstate the claimant to the state payroll. The claimant cites no precedent for his provision that the trial commissioner had such authority besides noting the General Assembly has enacted § 31-290a C.G.S. to penalize retaliatory firings.4 We believe this statute constitutes the exclusive remedy available to this Commission to force an employer to reinstate an employee. Had the General Assembly intended to include this remedy within the ambit of § 5-142(a) C.G.S., we believe they would have specifically authorized such a remedy. In the absence of such statutory authority, we believe the trial commissioner appropriately relied on Disciullo, supra, in concluding the remedy of reinstatement was unavailable under these circumstances.
We find no error and affirm the Finding and Dismissal. This appeal is dismissed.
Commissioners Christine L. Engel and Ernie R. Walker concur in this opinion.
1 The relevant portion of this statute reads as follows:
Sec. 5-142. Disability compensation. (a) If any member of the Division of State Police within the Department of Public Safety or of any correctional institution, or any Judicial Department employee sustains any injury (1) while making an arrest or in the actual performance of such police duties or guard duties or fire duties or inspection duties, or prosecution or public defender or courthouse duties, or while attending or restraining an inmate of any such institution or as a result of being assaulted in the performance of such person’s duty, or while responding to an emergency or code at a correctional institution, 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. Such person shall continue to receive the full salary that such person 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 that such person was receiving at the expiration of said two hundred sixty weeks as long as such person remains so disabled, except that any such person who is a member of the Division of State Police within the Department of Public Safety shall receive compensation at the rate of sixty-five per cent of such salary as long as such person remains so disabled. BACK TO TEXT
2 The text of this statute reads as follows:
Sec. 5-244. Transfer or separation from service because of infirmities. When an employee has become physically or mentally incapable of, or unfit for, the efficient performance of the duties of his position, by reason of infirmities due to advanced age or other disability, the appointing authority shall recommend to the Commissioner of Administrative Services that the employee be transferred to less arduous duties or separated from state service in good standing. BACK TO TEXT
3 “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 Ins., Co.,v. Pondi-Salik, 262 Conn. 746, 755 (2003). BACK TO TEXT
4 The text of this statute reads as follows:
Sec. 31-290a. Discharge or discrimination prohibited. Right of action. (a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.
(b) Any employee who is so discharged or discriminated against may either: (1) Bring a civil action in the superior court for the judicial district where the employer has its principal office for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if he had not been discriminated against or discharged and any other damages caused by such discrimination or discharge. The court may also award punitive damages. Any employee who prevails in such a civil action shall be awarded reasonable attorney’s fees and costs to be taxed by the court; or (2) file a complaint with the chairman of the Workers’ Compensation Commission alleging violation of the provisions of subsection (a) of this section. Upon receipt of any such complaint, the chairman shall select a commissioner to hear the complaint, provided any commissioner who has previously rendered any decision concerning the claim shall be excluded. The hearing shall be held in the workers’ compensation district where the employer has its principal office. After the hearing, the commissioner shall send each party a written copy of his decision. The commissioner may award the employee the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he otherwise would have been eligible if he had not been discriminated against or discharged. Any employee who prevails in such a complaint shall be awarded reasonable attorney’s fees. Any party aggrieved by the decision of the commissioner may appeal the decision to the Appellate Court. BACK TO TEXT
You have reached the original website of the