BENOIT v. STATE, NORWICH STATE HOSPITAL, 920 CRD-2-89-9 (2-6-91)


FRED BENOIT, CLAIMANT-APPELLANT vs. STATE OF CONNECTICUT, NORWICH STATE HOSPITAL, EMPLOYER and STATE TREASURER, CUSTODIAN, SECOND INJURY COMPENSATION ASSURANCE FUND, RESPONDENT-APPELLEE KATHRYN TRINKELY, CLAIMANT-APPELLEE vs. STATE OF CONNECTICUT, ELLA GRASSO REGIONAL CENTER EMPLOYER, RESPONDENT-APPELLANT and SECOND INJURY AND COMPENSATION, ASSURANCE FUND, RESPONDENT-APPELLANT

CASE NO. 920 CRD-2-89-9 CASE NO. 924 CRD-5-89-10Workers’ Compensation Commission
FEBRUARY 6, 1991

The claimant was represented by Nathan Shafner, Esq., and Mark Oberlatz, Esq., both of O’Brien, Shafner, Bartinik, Stuart Kelly, P.C.

The respondent-Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General.

The claimant was represented by Edward T. Dodd, Esq.

The respondent State of Connecticut was represented by Amado Vargas, Esq., and Michael J. Belzer, Esq., Assistant Attorneys General. The respondent Second Injury Fund was represented by Diane Duhamel, Esq., and Brewster Blackall, Esq., Assistant Attorneys General.

This Petition for Review from the September 26, 1989 Finding and Dismissal of Claim of the Commissioner for the Second District was heard August 10, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Gerald Kolinsky and A. Thomas White, Jr.

These Petitions for Review from the October 2, 1989 and March 12, 1990 Finding and Award of the Commissioner for the Fifth District was heard August 10, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Gerald Kolinsky and A. Thomas White.

OPINION

JOHN ARCUDI, CHAIRMAN.

Benoit, Case No. 920 CRD-2-89-9 and Trinkely, Case No. 924 CRD-5-89-10 were argued together. In Benoit, the claimant employee appealed. In Trinkely the respondents appellants were the State of Connecticut and the Second Injury and Compensation Assurance Fund. The ultimate issue in both is whether a state employee eligible for benefits pursuant to Sec. 5-142(a)[1] is entitled to the concurrent employment benefits provided by Sec. 31-310. In Benoit the commissioner ruled a claimant receiving full salary benefits under Sec. 5-142(a) could not also obtain Sec. 31-310 concurrent employment benefits. In Trinkely the commissioner ordered that the parties’ Voluntary Agreement be re-opened to include the full salary provisions of Sec. 5-142(a) and the Sec. 31-310
benefits for two thirds of concurrent employment earnings.

This Division’s opinion in Palmer v. State of Connecticut, 900 CRD-4-89-7
and Jones v. State of Connecticut, 986 CRD-2-90-2 (Feb. 4, 1991) treats a similar issue. There the claimants who were covered by Sec. 5-142(a) nonetheless sought to have their benefits computed according to a chapter 568 formula under Sec. 31-307. The Compensation Review Division decision ruled that that was not a permissible option. Benefits had to be calculated under Sec. 5-142(a) full salary provisions. Palmer and Jones also ruled that overtime earnings were not part of full salary.

Arguments in the present appeals do not concern an election of remedies option. Rather the issue here is whether the two remedies can be stacked. Although not precisely on point, Going v. Cromwell Fire District, 159 Conn. 53 (1970) does relate to the contention that concurrent employment benefits contained in chapter 568, Title 31 may be stacked on those provided in another title. There, the volunteer fireman received Sec. 7-314a benefits. Although a volunteer Fireman received Sec. 7-314a benefits. Although a volunteer fireman received no remuneration, Sec. 7-314a created the legal fiction that his salary was equivalent to the state’s average production wage.

The statute also provided that active volunteer firemen were “subject to the jurisdiction of the worker’s compensation commission and shall be compensated in accordance with the provisions of chapter 568.” As a result of his volunteer fire duties Going was injured and totally disabled for a period. During the twenty-six weeks prior to the fire injury he had had regular employment with Western Electric Company, Inc. Because of the fire injury he was entitled to benefits provided by Sec. 7-314a(a)(2). However, the fire district’s insurer contended under Sec. 31-310 concurrent employment provisions the Second injury Fund should pay a pro rata portion of the compensation benefits. The court held Sec. 7-314a provided a different wage computation method and therefore was inconsistent with Sec. 31-310:

Where there are two inconsistent methods of computation such as we have if, the present case, the method of computation which covers the subject matter in specific terms, herein as particularly applied to volunteer firemen will prevail over the general language of another statute which might otherwise prove controlling. Charlton Press, Inc. v. Sullivan, 153 Conn. 103, 110, (1965). Since the proration provision of Sec. 31-310 is inextricably linked to a method of computation which is incompatible with Sec. 7-314a, it cannot be read into or reconciled with that statute and therefore is inapplicable to the facts of this case.

Going, supra at 60.

When a case involves seemingly conflicting statutes we seek to construe the laws so as to “find a reasonable field of operation for both statutes.” Tanner v. Walgren Tree Experts, 8 Conn. Workers’ Comp. Rev. Op. 16, 748 CRD-8-88-7 (1990) quoting Windham First Taxing District v. Windham, 208 Conn. 543, 553-4
(1988). In these appeals, there seems no field of operation for both statutes. Total incapacity benefits are to be paid in accordance with Sec. 5-142(a). By requiring payments of “full salary” for injured state employees, the legislature precluded payment for Sec. 31-310 concurrent employment benefits. Sec. 5-142(a) may permit some provisions of chapter 568 to apply, but it does not permit chapter 568 benefits inconsistent with its own Title 5 provisions.

We, therefore, hold that a state employee receiving Sec. 5-142(a) benefits may not also collect Sec. 31-310 concurrent employment benefits. We think that the Going rationale together with our own decisions in Palmer and Jones mandate such a result.

In Trinkely, the claimant has moved to dismiss the state’s appeal. The commissioner had issued his decision October 2, 1989. The state filed a Petition for Review telephonically by electronic facsimile transmission, Fax, October 12, on the last day permitted under Sec. 31-301. Sec. 31-301(a) provides, that “At any time within ten days after entry of such award by the commissioner . . . either party may appeal therefrom to the Compensation Review Division by filing in the office of the commissioner from which such award or such decision on a motion originated an appeal petition and five copies thereof.” The claimant contends the faxed appeal failed to comply as the appellant never filed an original appeal petition and five copies thereof within the time prescribed.

We deny claimant’s Motion as under the circumstances there has been substantial compliance with Sec. 31-301. This is not to say that all Petitions for Review filed by electronic facsimile transmission will be acceptable.

We therefore affirm Benoit and reverse and remand Trinkely

Commissioners Gerald Kolinsky and A. Thomas White concur.

[1] Section 5-142(a) provides in pertinent part: Sec. 5-142. Disability compensation. (a)If any member of any institution or facility of the department of mental health giving care and treatment to persons afflicted with a mental disorder or disease, or any institution for the care and treatment of persons afflicted with any mental defect, . . . sustains any injury or while attending or restraining an inmate of any such institution or as a result of being assaulted in the performance of his duty, the state shall pay all necessary medical and hospital expenses resulting from such injury. If total incapacity results from such injury, . . . 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 salary deduction, required in the case of active employees, for a period of two hundred sixty weeks from the date of the beginning of such incapacity . . . All other inconsistent herewith, including the specific indemnities and provisions for hearing and appeal, shall be available to any such state employee or the dependents of such a deceased employee.