AUGER v. STRATFORD, NO. 03944 CRB-04-98-12 (1-14-2000)


CASE NO. 03944 CRB-04-98-12 CLAIM NO. 400000918Compensation Review Board Workers’ Compensation Commission
JANUARY 14, 2000

The claimant was represented by William L. Cotter, Esq. Cotter, Cotter Mullen, LLC.

The respondent was represented by George Boath, Esq., Town of Stratford Attorneys’ Office. Notice also sent to Zanella, Girardi Boath.

This Petition for Review from the December 8, 1998 Finding and Award of the Commissioner acting for the Fourth District was heard August 6, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.


Both the claimant and the respondent have petitioned for review from the December 8, 1998 Finding and Award of the Commissioner acting for the Fourth District. The respondent contends on appeal that the trier erred by ruling that the claimant is entitled to continuing insurance coverage under § 31-284b, even though he is now retired. The claimant, meanwhile, protests the trier’s failure to award attorney’s fees. We affirm the trial commissioner’s decision.

The parties stipulated that the claimant is a former police officer of the town of Stratford who suffered a compensable back injury on August 7, 1990. That injury was the subject of a voluntary agreement approved on December 23, 1992, and a second voluntary agreement approved on December 7, 1993. It was agreed that the claimant had a 20% permanent partial impairment of his back, which entitled him to 104 weeks of specific indemnity benefits. On July 14, 1995, the claimant was awarded a disability pension as a result of his injury and his consequent inability to continue performing the duties of a police officer.

At the time of his injury, the claimant and his family were receiving health, dental and life insurance coverage as part of his employment benefits package. Once the claimant accepted his disability retirement, the respondent discontinued the dental insurance coverage, and began deducting the health insurance premiums from the claimant’s disability pension checks. The claimant then instituted the present claim, seeking reinstatement of the health, dental and life insurance coverage for him and his family that was in place on the date of his injury, as well as reimbursement for all insurance premiums. He also sought interest and attorney’s fees from the respondent.

The trial commissioner ruled that the claimant is still entitled to §31-284b benefits, even though he is no longer receiving workers’ compensation benefits of any kind. The trier reasoned that, because the claimant’s case remains open and active, he remains eligible to receive workers’ compensation benefits, and thus he is expressly entitled to §31-284b[1] benefits as well. He ordered the respondent to reinstate the group medical benefits that were in effect for the claimant and his family on the date of his injury without cost to the claimant, and directed the respondent to reimburse the claimant for all of the health insurance premiums that were improperly deducted from his pension. No attorney’s fees were awarded, however, which led the claimant to join the respondent in petitioning for review from the trier’s decision.

The determinative question in this matter is whether the claimant is still legally “eligible to receive or receiving workers’ compensation payments” pursuant to chapter 568. If answered in the affirmative, the claimant would then be entitled to continued insurance coverage under §31-284b. If answered in the negative, the claimant would no longer be entitled to that benefit, provided that the respondent followed the proper procedure in discontinuing such insurance coverage by filing a Form 36 in accordance with § 31-296.[2]

Although our Supreme Court has identified one type of workers’ compensation “benefit” that does not trigger the mandatory health insurance coverage requirement of § 31-284b; see Crocetto v. LynnDevelopment Corp., 223 Conn. 376 (1992) (receipt of “subsistence allowance” by former employee enrolled in workers’ rehabilitation program does not qualify as a workers’ compensation payment under § 31-284b, as such allowance is authorized neither by statute or administrative regulation); in general, this board has interpreted the terms of § 31-284b
with a fair amount of breadth, in light of the remedial tenor of the Workers’ Compensation Act. Sansone v. Enfield, 3885 CRB-1-98-9 (November 18, 1999). Thus, we have determined that a dependent widow receiving compensation under § 31-306 is entitled to § 31-284b health insurance coverage; Sansone, supra; and that the term “compensation payments” in §31-284b includes not only incapacity payments to injured employees, but also sums paid out for surgical, medical and hospital services to medical providers, as per the definition of “compensation” in § 31-275(4). Kellyv. Bridgeport, 3761 CRB-4-98-1 (March 11, 1999).

In Kelly, this board expressly noted that the legislative history of §31-284b evinced no specific intent to limit the statute’s coverage to periods when the employee is receiving weekly benefit checks under chapter 568. We reasoned that a claimant who was required under § 31-294c to file a notice of claim by virtue of his being treated by medication was certainly “eligible” to receive workers’ compensation payments within the meaning of § 31-284b. We also stressed the purpose of § 31-284b: to maintain the income of employees who suffer compensable injuries. “Not only is the medical care that the claimant continues to receive on account of his 1991 myocardial infarction essential to his well-being; it is also true that an individual such as the claimant would be hard-pressed to obtain the same insurance that he had before he was injured, on account of his increased risk factor for a second heart attack. There is no reason to presume that the legislative concern for such individuals ends at the moment they return to work, or cease working for the employer in whose employ they were injured.” Id. As such, we rejected the notion of a time limitation on § 31-284b insurance coverage benefits when presented with a case in which the claimant continued to receive medical treatment for his compensable injury beyond the duration of his weekly benefit award.

In the present case, the claimant testified that he continued to treat with a physician for his compensable back condition. Transcript, 22-28, 48-50. The trier made no specific findings regarding that fact. In his award, he characterized the claimant’s case as “open and active,” which led to eligibility for continued insurance coverage under § 31-284b, but this cannot fairly be described as a finding that the claimant continued to receive treatment. At oral argument, the trier expressed a belief that the claimant would be eligible for benefits if, as a result of the instant claim, he might be eligible for benefits “at any time in the future.” Transcript, 40, 60-62. Though Kelly extends § 31-284b coverage beyond claimants currently receiving weekly benefit checks, it does not permit indefinite eligibility simply because an approved voluntary agreement exists. There must be an element of continuing disability as well. The concerns expressed in Kelly favor an inclusive approach to §31-284b benefits, but they do not imply that a claimant inherits automatic lifetime entitlement to insurance coverage each time he or she suffers a compensable injury.

We need not reverse the trier’s decision, however, because the outcome of this case was not affected by his partial misconstruction of the law. It is clear from the testimony that the claimant alleges that he still needs medical treatment for his 1990 injury, and there is no dispute that the respondent did not file a Form 36 in conjunction with its discontinuance of the claimant’s insurance benefits. A claimant’s entitlement to insurance coverage under § 31-284b is no less important than his entitlement to benefits under § 31-307 or § 31-308, and we do not think that an employer or insurer should discontinue such benefits without filing notice of its intent to do so as required by § 31-296. SeePlatt v. UTC/Pratt Whitney Aircraft Div., 3 Conn. Workers’ Comp.Rev.Op. 3, 7-10, 164 CRD-6-82 (Aug. 16, 1985). This precaution is particularly crucial here, where the respondent began deducting insurance premiums from the claimant’s pension after it unilaterally determined that he was no longer entitled to health insurance coverage under § 31-284b. This commission must be allowed to ratify the cessation of a workers’ compensation benefit when it will cause a decrease in the disability pension received by an injured worker. Thus, the trier correctly ruled that the claimant was still entitled to insurance coverage through the formal hearing, and he properly ordered reinstatement of such coverage, as well as reimbursement for improperly deducted premiums.

Despite our affirmation of the merits of the trier’s decision, we reject the claimant’s contention that the trier erred by failing to award interest and attorney’s fees for undue delay in payment of compensation and unreasonable contest. The question of continuing entitlement to §31-284b benefits is not readily settled by the plain language of the statute, and absent controlling precedent, is one upon which reasonable minds could differ. Indeed, there is a dissent appended to this CRB opinion. The trier was not required to grant the corrections proposed by the claimant, as his repeated requests to the respondent to cease deducting insurance premiums from his retirement pay did not prove as a matter of law that the respondent was unduly delaying the payment of benefits, nor did it demonstrate a lack of good faith in the respondent’s defense. We are comfortable in construing the trial commissioner’s denial of the Motion to Correct as a reasonable refusal of the claimant’s request for interest and attorney’s fees under § 31-300.

The trial commissioner’s orders are hereby affirmed.

Commissioner Stephen B. Delaney concurs.

[1] Section 31-284b(a), the statutory subsection implicated in this appeal, provides as follows: “In order to maintain, as nearly as possible, the income of employees who suffer employment-related injuries, any employer who provides accident and health insurance or life insurance coverage for any employee or makes payments or contributions at the regular hourly or weekly rate for full-time employees to an employee welfare plan, shall provide to the employee equivalent insurance coverage or welfare plan payments or contributions while the employee is eligible to receive or is receiving compensation pursuant to this chapter, or while the employee is receiving wages under a provision for sick leave payments for time lost due to an employment-related injury. As used in this section, `income’ means all forms of remuneration to an individual from his employment, including wages, accident and health insurance coverage, life insurance coverage and employee welfare plan contributions and `employee welfare plan’ means any plan established or maintained for employees or their families or dependents, or for both, for medical, surgical or hospital care benefits.”
[2] The relevant language in § 31-296 provides, “If an employer and an injured employee . . . reach an agreement in regard to compensation, such agreement shall be submitted in writing to the commissioner by the employer with a statement of the time, place and nature of the injury upon which it is based; and, if such commissioner finds such agreement to conform to the provisions of this chapter in every regard, he shall so approve it. . . . Before discontinuing or reducing payment on account of total or partial incapacity under any such agreement, the employer, if it is claimed by or on behalf of the injured person that his incapacity still continues, shall notify the commissioner and the employee, by certified mail, of the proposed discontinuance or reduction of such payments, with the date of such proposed discontinuance or reduction and the reason therefor, and, such discontinuance or reduction shall not become effective unless specifically approved in writing by the commissioner. The employee may request a hearing on any such proposed discontinuance or reduction within ten days of receipt of such notice. . . .”


Because the trial commissioner made no factual findings regarding the claimant’s continued receipt of medical care, I would remand this case to the trial commissioner for further proceedings. I do not agree with the majority’s opinion that the respondent’s failure to file a Form 36 automatically entitles the claimant to § 31-284b coverage through the date of the formal hearing. In fact, where there are formal proceedings pending on the issue of the claimant’s entitlement to continuing health insurance coverage, I fail to understand why the filing of a Form 36 announcing the respondent’s intent to discontinue that coverage would serve any purpose at all. Once the instant action began, the trier should have determined — as was done in Kelly, supra — whether the claimant was still in need of treatment. A finding on that issue was crucial to the outcome of this case. Absent that finding, the case should be remanded, as any decision at this point is premature. Accordingly, I dissent.