Opinion
CASE NO. 5080 CRB-5-06-4CLAIM NO. 500115207
APRIL 19, 2007
The claimant was represented by Albert E. Desrosiers, Esq., Cousins, Desrosiers Morizio, P.C., 2563 Main Street, Stratford, CT 06615-5844.
The respondents were represented by Erica W. Todd, Esq., Trotta, Trotta Trotta, LLC, 900 Chapel Street, P.O. Box 802, New Haven, CT 06503-0802.
This Petition for Review from the April 13, 2006 Finding and Award on Remand of the Commissioner acting for the Fifth District was heard October 20, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and George Waldron.
OPINION
This matter has been before this board on two other occasions. SeeHummel v. Marten Transport, Ltd., 4667 CRB-5-03-5 (May 3, 2005), appeal dismissed for lack of final judgment, 90 Conn. App. 9 (2005), cert. granted, 275 Conn. 913 (2005) [hereafter Hummel v. Marten Transport, Ltd., 4667 CRB-5-03-5 (May 3, 2005) referred to asHummel I]; Hummel v. Marten Transport, Ltd., 4760 CRB-5-03-12 (November 19, 2004) [hereafter Hummel II].
A summary of the pertinent facts and prior proceedings is as follows. The claimant is the dependent spouse of the decedent. The decedent was employed by the respondent as a truck driver. On November 25, 1997 while in the employ of the respondent, the decedent was found dead in the cab of his truck as a result of a heart attack.
In his April 24, 2003 Finding and Award, the late Commissioner Darius Spain found the decedent's death was causally related to his employment. The respondents filed an appeal and in Hummel I, supra, this board affirmed the April 24, 2003 Finding and Award.
Following this board's ruling in Hummel I, the respondents filed an appeal with the Appellate Court. The Appellate Court dismissed the matter on the basis of lack of final judgment. Hummel v. Marten Transport, Ltd., 90 Conn. App. 9 (2005). The respondents and the claimant filed appeals with the Supreme Court and certification was granted as to the question of, "Did the Appellate Court properly dismiss this appeal for lack of a final judgment?" Hummel v. Marten Transport, Ltd., 275 Conn. 913 (2005). That question is currently pending before our Supreme Court, Hummel v. Marten Transport, Ltd., appeals docketed Nos. SC 17494 and SC 17496.
Meanwhile, in light of the Appellate Court's ruling in Hummel v. Marten Transport, Ltd., 90 Conn. App. 9 (2005), the claimant sought payment of § 31-306 benefits pursuant to § 31-301(f) and penalties against the respondents pursuant to §§ 31-300 and 31-303. In his November 18, 2003 Finding and Award, Commissioner Vargas found the respondents had not paid the claimant and ordered them to pay the claimant 312 weeks at a base compensation rate of $398.03. That amount represented payments owed for the period between November 25, 1997 and November 25, 2003. Commissioner Vargas also noted benefits owed to the claimant required an adjustment for Cost of Living Adjustments [hereafter COLAs] and ordered the parties to calculate same. Additionally, the respondents were ordered to commence the weekly payment of benefits. The matter was held open for the consideration of penalties pursuant to § 31-300 and § 31-303.
See Hummel v. Marten Transport, Ltd., November 18, 2003 Finding and Award of the Commissioner acting for the Fifth District Finding, ¶ 11.
The respondents appealed the November 18, 2003 Finding and Award and this board issued its opinion in Hummel II, 4769 CRB-5-03-12 (November 19, 2004). In Hummel II the respondents argued they were not required to pay the claimant. One of the arguments raised by the respondents was that they should not have to pay the claimant pursuant to § 31-301(f) as § 31-301(d) contradicted § 31-301(f). The CRB was not persuaded by the respondents' contention but did note the enforcement of an order pursuant to § 31-301(f) requires that the order detail the specific amount to be paid.
In Hummel II the board acknowledged the respondents' argument that § 31-307(e) permits the respondents to offset the dependent's social security benefits. The board concluded that as further proceedings were necessary for the purpose of calculating all benefits owed to the claimant, including applicable COLA amounts, the respondents could also raise its offset argument in the proceedings on remand.
The matter that is presently before this panel is the decision of the trial commissioner following this board's remand order of Hummel II, supra. The proceedings on remand were heard and decided by Commissioner Michelle Truglia. In her April 13, 2006 Finding and Award Commissioner Truglia took administrative notice of all documents filed and noted that the respondents had not made any payments to the claimant. The commissioner found, inter alia, that the compensation rate determined by Commissioner Vargas in the November 18, 2003 Finding and Award was incorrect. By agreement of the parties the base compensation rate was changed to $473.40 and deemed to supersede the $398.03 rate found in the previous decision.
Additionally, Commissioner Truglia concluded: (1) § 31-307(e) did not permit the respondents to offset the dependent spouse's benefit pursuant to § 31-306, (2) the respondents willfully failed to comply with § 31-301(f) in terms of failing to pay amounts which were not in dispute for the period between November 18, 2003 to May 23, 2005, and (3) the respondents willfully failed to comply with § 31-301(f) in terms of failing to pay annual COLA adjustments for the period between November 26, 1997 to May 23, 2005. Accordingly, pursuant to § 31-288(a) the commissioner found there were 18 instances in which the respondents failed to make payments for benefit amounts which were undisputed for the period and pursuant to § 31-288(b) there were 8 instances in which the respondents unduly delayed payment to the claimant.
Commissioner Truglia based each instance on the 18 months between Commissioner Vargas' November 18, 2003 Finding and Award and the May 23, 2005 formal hearing before Commissioner Truglia. She levied a fine of $250 for each occurrence.
Pursuant to § 31-288(b) she levied a fine of $500 for each instance in which payments were unduly delayed.
In their appeal, the respondents assert various legal arguments as to why the respondents should be permitted an offset against § 31-306 benefits and need not pay benefits to the claimant. They argue that, under their legal theories, no payments are due and thus various sanctions for nonpayment imposed by Commissioner Truglia are not warranted. We note the claimant has also filed an appeal in which it asks whether the trial commissioner erred in failing to award interest pursuant to § 31-303. We begin our review with a consideration of the issues raised by the respondents.
The procedural history of this claim was detailed above. Commissioner Truglia found no payments were made to the claimant despite a number of rulings and orders by trial commissioners and this board. The first issue raised by the respondents is that they are entitled to offset any § 31-306 benefits to which the claimant may be entitled by benefits the claimant is receiving pursuant to § 42 U.S.C. § 402(e) (federal Social Security survivors benefits). The respondents argue that receipt of Social Security survivors' benefits and chapter 568 dependents' benefits constitutes a double recovery and is counter to Workers' Compensation public policy. Ancona v. Norwalk, 217 Conn. 50 (1991).
They argue the legal basis for their argument lies with § 31-307(e) and in our Supreme Court's ruling in Rayhall v. Akim Co., 263 Conn. 328 (2003). Reading both together, they argue, permits an offset. To conclude as the respondents argue, we are required to read § 31-307(e) in a manner inconsistent with the statute's text and to interpret Rayhall in a manner not considered by theRayhall court. Section 31-307(e) provided:
We note Public Act 06-84 repealed 31-307(e).
Notwithstanding any provision of the general statutes to the contrary, compensation paid to an employee for an employee's total incapacity shall be reduced while the employee is entitled to receive old age insurance benefits pursuant to the federal Social Security Act. The amount of each reduced workers' compensation payment shall equal the excess, if any, of the workers' compensation payment over the old age insurance benefits.
In Rayhall, supra, the court considered, inter alia, the constitutionality of § 31-307(e) on its face. The plaintiff was an injured employee who was found entitled to temporary total incapacity benefits pursuant to § 31-307. The plaintiff was also receiving social security old age insurance benefits. One of the arguments presented to the court was whether the offset provision in § 31-307(e) was unconstitutional as "the [legislative] scheme lacks a logical foundation because the offset is applied against social security old age benefits, but not other nonage-based retirement benefits or other benefits." (Emphasis ours) (footnote omitted). Id., 345-346. The court rejected the argument.
We think Rayhall's rejection of the argument that § 31-307(e) was unconstitutional because § 31-307(e) failed to require an offset against any benefits other than social security old age benefits, indicates that the court did not view § 31-307(e) as permitting an offset against other forms of social security benefits. We conclude, therefore, the respondents are not entitled to offset the claimant's § 31-306 benefits by payments made under the federal Social Security Act survivors benefits.
We are similarly unpersuaded the general admonition against allowing a claimant a double recovery is violated when § 31-306 payments are finally commenced. In support of their argument the respondents cite Ancona v. Norwalk, 217 Conn. 50 (1991). We believe Ancona is distinguishable from the instant matter as Ancona concerned a dependent spouse's claim for the concurrent payment of her deceased husband's permanency benefits and the dependents benefits to which she was entitled under § 31-306. In Ancona the court considered whether the concurrent payment of two separate chapter 568 benefits constituted a double recovery. The Ancona court held such concurrent payments were prohibited. However, the issue considered inAncona and deemed impermissible is not the issue under review here. Thus, Ancona does not compel us to rule in the respondents' favor.
The Appellants also reference a number of other cases in which they claim the courts permitted a coordination of benefits. Of those cited in addition to Ancona only two carry any real precedental value,Alessi v. Raybestos, 451 U.S. 501 (1981) and Middletown v. Local 1073, 1 Conn. App. 58 (1983), cert. denied, 192 Conn. 803 (1984). InAlessi, the Court held that federal ERISA law permits a private pension plan to be constructed in such a way that pension payments may be offset by Workers' Compensation payments. In Middletown, our Appellate Court held a local city ordinance permits an offset of pension benefits by sums paid pursuant to § 7-433c. Neither of these situations exists in the matter at hand.
We, therefore, conclude the respondents are not entitled to an offset pursuant to § 31-307(e) nor is the general proscription against double recovery applicable in this matter. Having concluded as we have we find no merit to respondents' claim that it was under no obligation to pay § 31-306 benefits pursuant to either § 31-301(f) or § 31-301(d).
The respondents also argue that an offset under § 31-307(e) should be permitted as the decedent "was planning on retiring when he turned 65, which would have occurred ten months following his demise. . . ." Appellant's Brief, p. 11. We noted above our conclusion and analysis as to why § 31-307(e) is not applicable in this matter. The respondents assertion that § 31-307(e) should apply on the grounds of their speculation that a future contingent action would have been taken by a man who is now dead strikes us as the most unavailing of all arguments presented in this appeal.
The respondents also argue that it was error for the trial commissioner to conclude the respondents' failure to pay benefits was due to delay on their part. They contend that the claimant did not move to enforce the award of benefits pursuant to § 31-301(d) and that any obligation it had pursuant to § 31-301(f) was satisfied by the claimant's receipt of benefits under the federal Social Security Act. Further their actions did not constitute an unreasonable contest as they were merely asserting their right to defend the claim on the basis of the reasonable existence of questions of liability and causation.
Whether the claimant was entitled to an award of interest and attorney's fees pursuant to § 31-300 is a factual determination to be made by the trial commissioner. We note in the prosecution of this appeal the respondents did not file a Motion To Correct. Thus, our review of the factual findings is limited as to whether the trial commissioner erred as a matter of law. We cannot say the trier's conclusion on this issue was an abuse of discretion. Commissioner Truglia's imposition of interest and attorney's fees on the basis of undue delay related back to the period of Commissioner Vargas' November 18, 2003 Finding and Award. Given the respondents' failure to pay any sums, even those where the amount was ascertained, we cannot say Commissioner Truglia abused her discretion in ordering the payment of interest and the claimant's entitlement to attorney's fees.
We next consider the claimant's argument that the trial commissioner erred in failing to award interest pursuant to § 31-303. Section 31-303 provides in pertinent part
Payments due under an award shall commence on or before the twentieth day from the date of such award. . . . Any employer who fails to pay within the prescribed time limitations of this section shall pay a penalty for each late payment, in the amount of twenty per cent of such payment, in addition to any other interest or penalty imposed pursuant to the provisions of this chapter.
We believe the legislature's use of the term "shall" indicates a mandatory direction as to what is to occur when payments are commenced later than that permitted by the statute.
Absent an indication to the contrary, the legislature's choice of the mandatory term "shall" rather than the permissive term "may" indicates that the legislative directive is mandatory. See Cantoni v. Xerox Corp., 251 Conn. 153, 165, 740 A.2d 796 (1999); see also Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986) (legislature's use of "shall" connotes that performance of statutory requirements is mandatory rather than permissive).
Bailey v. State, 65 Conn. App. 592, 604 (2001).
We, therefore, affirm the April 13, 2006 Finding and Award of the Commissioner acting for the Fifth District in all respects except her conclusion that an award of interest pursuant to § 31-303 is discretionary and remand for additional proceedings consistent with this opinion.
Commissioners James J. Metro and George Waldron concur.