Opinion
No. CV 02 0516835S
July 16, 2003
MEMORANDUM OF DECISION
This is an appeal by Plaintiff-Appellant Bruce Hill from a declaratory ruling issued by Defendant-Appellee Connecticut State Employees Retirement Commission.
BACKGROUND
Plaintiff was employed by the State of Connecticut State Receiving Home from December 14, 1990 through 1997. During this time, he sustained an injury to his right shoulder. Mr. Hill sought benefits through Workers' Compensation, claiming a work-related injury. This claim was contested by the state. Ultimately, the state entered into a voluntary agreement finding that Mr. Hill had sustained a 21.5% impairment to his right shoulder. The injury was found to be work-related.
On or about April 11, 2000, Mr. Hill applied for a service-connected disability retirement from his state employment. The Medical Examining Board, which functions under the auspices of State Employee's Retirement System, denied his claim. The Medical Examining Board found that the evidence submitted was not sufficient to show that the injury was service-connected. This was in contravention of the earlier agreement with the Workers' Compensation Commission finding that the injury was work-related.
The determination of service-connection was crucial to plaintiff's application. General Statutes § 5-192p allows for a disability retirement after ten years of service from any cause. If an employee has less than ten years, disability retirement will be awarded only if the disability was the result of a service-connected disability. Mr. Hill had less than ten years of service.
Mr. Hill then appealed to the Superior Court, challenging the denial of his disability retirement. This appeal was dismissed in a summary decision which stated that the dismissal was based on the record before the court. The transcript of the argument is attached to defendant's brief. The trial court accepted the state's argument that there was no appeal from a decision of the Medical Examining Board. The trial court relied upon Ahern v. State Employees Retirement Commission, 48 Conn. App. 482 (1998) (there can be no appeal in any matter brought before the State Employees Retirement Commission insofar as the statutory scheme does not provide for contested cases); Derwin v. State Employees CT Page 8413-du Retirement Commission, 234 Conn. 411, 661 A.2d 1025 (1995) (there is no appeal from a decision of the retirement commission even after reconsideration); and Bailey v. Medical Examining Board, 76 Conn. App. 215, 815 A.2d 281 (2003). Bailey is of particular note, as it is identical to the facts in the present case. In Bailey, the plaintiff, similar to Mr. Hill, had been found to have a service-connected disability for purposes of worker's compensation. Again, the appeal was dismissed as there was no contested case from which an appeal could be taken.
Mr. Hill did not appeal the decision dismissing his appeal. Instead he petitioned the Retirement Commission for a declaratory ruling. If this ruling were adverse, Mr. Hill was assured an appeal insofar as General Statutes § 4-176 (h) permits appeals from declaratory rulings. Mr. Hill did not prevail in the decision on the declaratory ruling. The present appeal was then filed.
ISSUE
The issue here is very narrow. The only question is whether the Commission erred in its decision on the declaratory ruling. Mr. Hill seeks to frame the issue in other terms. Plaintiff's argument has remained consistent throughout his applications to the Retirement Commission. The heart of his challenge is that another state agency, whether the Retirement Commission or the Medical Examining Board, is precluded from relitigating the issue of service connection in view of the finding of Workers' Compensation on that issue. Unfortunately, the present posture of this appeal does not permit the court to consider that issue. To do so would permit what case law does not — a review of the determination of the Medical Examining Board. The specific request to the Retirement Commission in the request for declaratory ruling was that the commission ". . . set aside the Medical Examining Board's denial of the Petitioner's service-connected disability retirement application and rule that the Petitioner is entitled to a service-connected disability retirement." Decision and Declaratory Ruling, July 18, 2002. (Attached as Decision Exhibit A.)
Plaintiff's attorney repeatedly conceded at oral argument that his appeal would fail were the court to find that the Retirement Commission or the Medical Examining Board were not collaterally estopped from making a finding on service connection de novo.
DISCUSSION
Pursuant to the statute, the Medical Examining Board is the sole fact finder on issues of service connection. General Statutes § 5-169 (c) provides:
(c) The Governor shall appoint a board of seven physicians, each of whom is a state employee and two of whom shall be experienced in psychiatry, to serve at his pleasure as a medical examining board to CT Page 8413-dv determine whether each applicant for disability retirement is entitled thereto. Three of such members, one of whom shall be the elected chairman or the elected secretary to the board, shall constitute a quorum for the determination of any applicant's entitlement. The chairman or the secretary shall report the findings of the board to the Retirement Commission from time to time as requested by the commission as to the entitlement of each applicant or the continuance of disability of members so retired. The Comptroller is authorized to pay for stenographic and professional services as requested and approved by the board.
In addition, General Statutes § 5-192p which is entitled "Disability Retirement" provides in section (f) that "[t]he board of physicians appointed pursuant to section 5-169 shall be utilized for purposes of determination of any applicant's entitlement." Despite this clear legislative delegation of authority to the Medical Examining Board, plaintiff claims in his brief that the Retirement Commission "err[ed] in delegating to the Medical Examining Board the authority to determine that issue [service connection] de novo in connection with an application for service-connected disability retirement." (Plaintiff's brief, Statement of Issues, p.i.)
The Retirement Commission addressed this claim in ruling on the request for declaratory ruling by setting forth applicable statutory provisions as noted herein. There is no error in the Commission's application or understanding of the law. The Retirement Commission also cites Briggs v. State Employees Retirement Commission, 210 Conn. 214, 554 A.2d 292 (1989). That case held that the Medical Examining Board, using its medical judgment, may believe or disbelieve any evidence presented so long as the final decision is supported by the substantial evidence rule. The Retirement Commission also notes that Tremblay v. State Employees Retirement Commission, 170 Conn. 410, 365 A.2d 1125 (1976), has recognized that it is the function of the Medical Examining Board to make determinations whether an injury was sustained while in the performance of duties as a state employee.
In summary, the Retirement Commission did not err in finding that the Medical Examining Board was not bound by the previous determination of the Workers' Compensation Board: The legislature has vested the sole authority for making that determination for purposes of a service-connected state disability retirement with the Medical Examining Board. The Retirement Commission's ruling on the request for declaratory judgment is amply supported by both statutory and applicable case law.
The Bailey decision, supra p. 2 was not reported at the time of the decision on the declaratory ruling.
STANDARD OF REVIEW CT Page 8413-dw
Pursuant to General Statutes § 4-176h, appeals from declaratory rulings shall be taken in accordance with the provisions of § 4-183. That section provides:
(j) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment.
Under this standard, there is no error in the decision of the Retirement Commission.
As noted herein, the posture of this case as an appeal from a declaratory ruling does not present the opportunity for the frontal attack on the decision of the Medical Examining Board that the plaintiff attempts. As noted herein, Bailey has specifically endorsed the proposition that there can be no appeal from a decision of the Medical Examining Board. This is entirely consistent with the well established body of law prohibiting appeal where no hearing is held. Without a hearing, there is no contested case, a requirement for an appeal pursuant to the Administrative Procedure Act. Insofar as both the Retirement Commission and the Medical Examining Board both address claimants who typically come before them possessing vested rights, it is troubling to contemplate a statutory scheme providing little or no review. The plaintiff has opted for the only avenue which provides a certain appeal. It is difficult to fault him for that decision. Having failed to attack the validity of the statutory scheme subsequent to the dismissal of his original appeal, he is now limited to the narrow appeal standard applicable to this case.
Were the Supreme Court presented with a direct constitutional challenge on appeal from a motion to dismiss, it appears that the CT Page 8413-ez property rights at issue herein may well deserve the protection of a mandated hearing. See, Giamo v. New Haven, 257 Conn. 481, 778 A.2d 33 (2001).
CONCLUSION
For the foregoing reasons, plaintiff's appeal from the Retirement Commission's ruling on the declaratory judgment is hereby dismissed. CT Page 8413-dx
Dunnell, J.
EXHIBIT A: DECISION AND DECLARATORY RULING
BEFORE THE STATE OF CONNECTICUT MEDICAL EXAMINING BOARD
In the Matter of the Application of Bruce Hill
Hearing No. D-7373
#526006
For a Service-connected Disability Retirement from The State of Connecticut
NOTICE OF DECISION
A hearing for reconsideration was held in the above matter on Friday, August 31, 2001, at the Office of the State Treasurer in Hartford, Connecticut before JACQUELINE HARRIS, M.D., SECRETARY AND ACTING CHAIRPERSON; EDWARD BLANCHETTE, M.D.; and TIMOTHY SILVIS, M.D. The applicant was accompanied by his union representative, Joy Bylan.
The Medical Examining Board, after reviewing all the documentation admitted into evidence, adopted the following resolution:
RESOLVED
To reaffirm the Board's denial of the application of Bruce Hill for a service-connected disability retirement. The Board previously reviewed this application in September 2000 and denied it. The applicant had presented medial evidence of a right rotator cuff injury that did not resolve following surgery in December 1997. In its previous decision the Board determined that the applicant was indeed disabled from performing the duties of his classification as a General Trade Worker. The Board was not, however, able to determine service-connection. In support of this issue, the applicant has submitted additional information and has provided oral testimony under oath. First, the applicant could not explain why he took a day off after the August 17, 1997 football injury when he claims that the symptoms were trivial. It was also not explained to the Board's satisfaction why the applicant took so long from the subsequent work injury of September 18, 1997 to report it to his supervisor on October 3, 1997. The Board notes that the applicant testified, and the attendance records clearly show, that he worked until October 9, 1997 CT Page 8413-dy with his injured shoulder. Dr. Aron in a deposition of September 9, 1998 testified that the applicant would have been so limited in his functions after his injury that. "He would not have been able to use his right arm or right shoulder." According to the applicant, he had continued to work without any break in employment despite the injury claimed on September 18, 1997 because his work assignments were less arduous during the three-week interval in question.
Although the Board finds that the applicant has reached maximum medical improvement and is unable to perform the duties of a General Trade Worker, the issue of service-connection remains inadequately supported.
MOTION MADE BY DR. BLANCHETTE
SECONDED BY DR. SILVIS
UNANIMOUS DECISION
Dated at Hartford, Connecticut this 25th day of September 2001.
H
Jacqueline Harris, M.D.
Secretary And Acting Chairperson
Medical Examining Board