CASE NO. 1145 CRD-2-90-11Workers’ Compensation Commission
JULY 8, 1992
ORDER
Due to failure to notice all parties of the decision issued by the Compensation Review Board March 26, 1992 in the above captioned matter, that decision is vacated and reuttered as of today July 8, 1992.
The claimant was represented by Nathan Shafner, Esq., O’Brien, Shafner, Bartinik, Stuart and Kelly, P.C.
The respondent was represented by Gerard R. Rucci, Esq., and Howard Levine, Esq., Assistant Attorneys General.
This Petition for Review from the November 23, 1990 Finding and Dismissal of the Commissioner for the Second District was heard October 25, 1991 before a Compensation Review Division panel consisting of the then Commission Chairman, John Arcudi and Commissioners Donald H. Doyle and Jesse Frankl.
OPINION
JOHN ARCUDI, COMMISSIONER.
Claimant’s request to modify a Voluntary Agreement in his matter was denied by the Commissioner. That Voluntary Agreement showed claimant’s weekly compensation rate to be $247.45. Claimant wished it to be modified so that he would receive full pay during his periods of total disability under Sec. 5-142(a), $371.17.
Claimant sustained a compensable injury to his right knee August 20, 1984 and was totally disabled thereafter for some period of time. The Voluntary Agreement also indicated he was entitled to 41.65 weeks of permanent partial disability for 17 1/2% permanent disability of the knee beginning at the date of maximum improvement, November 13, 1985. The compensation rate for the permanent partial disability entitlement was not at issue in the motion for modification as under Sec. 31-308 that was payable under the chapter 568 rate, $247.45, not the Sec. 5-142(a) full pay rate.
Claimant’s contention on appeal is that he was in the actual performance of his guard duties at the time he sustained his compensable injury. The Commissioner found the injury occurred when claimant slipped on food particles adjacent to the prisoner’s mess hall at the John B. Gates Correctional Facility. He also found that claimant was en route to lunch at the time the accident occurred. The commissioner then concluded that the claimant was not in the act of supervising prisoners at the time of the accident and therefore not “in the actual performance of. . . . guard duties” when he sustained the knee injury.
The appellant relies on the Appellate Court’s decision in Lucarelli v. State, 16 Conn. App. 65, 68 (1988). However, since the date of oral argument, our Supreme Court has decided Stuart v. Dept. of Correction, 221 Conn. 41 (1992). Stuart is dispositive of the issue here presented by this claimant.
Stuart held that a food supervisor who injured his back while lifting supplies as part of his food preparation duties at a correctional institute was not entitled to the full pay provisions of Sec. 5-142(a). The court ruled that the language of Sec. 5-142(a) was unambiguous and that in order for claimant to come within the class of persons protected by Sec. 5-142(a) he must have been “in the actual performance of such. . . . duties” as enumerated in the statute. The Stuart holding was that the duties in which claimant was engaged at the time of injury were not “guard duties” and therefore the claimant did not satisfy the criteria of Sec. 5-142(a). “Had the legislature intended to provide the enhanced benefits for an injury received while in the performance of any duty it would have so stated. . . .” Id at 45. (emphasis theirs)
Lucarelli, supra is clearly distinguishable on its facts from the instant matter. In Lucarelli, the claimant was a correction officer whose chair collapsed while he was in the course of performing guard duties. Here the claimant was on his way to lunch. We cannot deem the commissioner’s conclusion that this activity was not in the actual performance of his guard duties at the time of injury to be “so unreasonable as to justify judicial interference.” Bailey v. Mitchell, 113 Conn. 721, 725 (1931).
This matter was initiated before the trial commissioner on a Motion to Re-Open. Sec. 31-315 governs such proceedings. That statute permits modification of an award if:
[I]t appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitates a change of such agreement or award in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. . . .
Nothing in the facts found below constitutes a ground recognized in the Sec. 31-315 excerpt cited above as a reason for modifying a Voluntary Agreement. Therefore both because the matter of whether the claimant was in the actual performance of guard duties was a factual determination for the trier to decide and because no grounds exist under Sec. 31-315 for modification, claimant’s appeal cannot be sustained.
We therefore affirm the Second District and dismiss the appeal.
Chairman Jesse Frankl and Commissioner Donald H. Doyle concur.
Jesse Frankl, Chairman Compensation Review Board Workers’ Compensation Commission