O’DONAL v. TOWN OF WEST HARTFORD, 917 CRD-1-89-9 (4-15-91)

CASE NO. 917 CRD-1-89-9Workers’ Compensation Commission
APRIL 15, 1991

The claimant was represented by Angelo Sevarino, Esq., Ward Sevarino.

The respondent was represented at the trial level by Saranne Murray, Esq., c/o Shipman Goodwin and on appeal by Elizabeth Dee Bailey, Esq., Assistant Corporation Counsel.

This Petition for Review from the August 30, 1989 Finding and Dismissal of the Commissioner for the First District was heard October 26, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and James Metro.

OPINION

JOHN ARCUDI, CHAIRMAN.

As a result of injuries February 1986 to his cervical spine, right elbow, left knee and head sustained in a motor vehicle accident while on duty, the claimant Bernard O’Donal, a West Hartford police officer, became entitled to compensation under the Workers’ Compensation Act, chapter 568 of the statutes. Under Sec. 31-293 (a)[1] , claimant also brought a Superior Court action for damages against the third party tort feasor for those same injuries. He realized $300,000.00 damages in settlement of that lawsuit.

The Workers’ Compensation Act, Sec. 31-307, C.G.S., obligated the town to pay this officer two-thirds pay for each week of disability caused by the accident. However, the collective bargaining agreement between the employer and the police union obligated the town to pay full pay during such periods of disability. Consequently, the town complied and paid the greater among in excess of the statutory mandate under chapter 568.

Further, under Sec. 31-284b, C.G.S.[2] the Act required the town to continue to pay insurance premiums to maintain claimant’s health and life insurance plan, in effect February 21, 1984, during the disability period. Payments were also made in compliance with that part of the law.

The town contended in the First District proceedings that Sec. 31-293(a) allowed it to be reimbursed from the third party damages settlement for all three categories of expenditures, i.e. the Sec. 31-307 two thirds pay, the extra one third pay to claimant required by the collective bargaining agreement and the insurance premiums expended pursuant to Sec. 31-284b. The First District only permitted reimbursement of Sec. 31-307 amounts, and the town appealed. We agree with the First District’s conclusions.

Determinations of the issues raised rest on the language of Sec. 31-293 (a). That law provides “the employer’s claim shall consist of (1) the amount of any compensation which he has paid on account: of the injury which is the subject of the suit.” The statute continues, “The word `compensation’ as used in this section shall be construed to include not only incapacity payments to an injured employee and payments to the dependents of a deceased employee, but also sums paid out for surgical, medical and hospital services to an injured employee, the one-thousand dollar burial fee provided by law and payments made under the provisions of sections 31-312 and 31-313.”

Sec. 31-312 refers to payments to employees for work time lost when absent due to medical treatments. Sec. 31-313 before the 1983 amendment, P.A. 83-65, provided that the employer pay up to forty dollars per week for rehabilitation treatments to the injured employee. Apparently, through some oversight, the Sec. 31-293(a) reference to Sec. 31-312 was not deleted in 1983 when Sec. 31-312 was changed. Similarly, the burial allowance in Sec. 31-306 is now four thousand dollars. When the Sec. 31-306 sums were successively increased form one thousand dollars to the present figure, the changes were not made in Sec. 31-293(a).

We have already alluded to Sec. 31-307, the Statute providing for two thirds pay during total incapacity.

Sec. 31-308 and Sec. 31-308a also provide that the employer pay up to two thirds of wages for the various categories of partial incapacity to the injured employee. The statute providing for compensation to dependents of deceased employees is Sec. 31-306, and the law mandating payment of medical expenses is Sec. 31-294.

Thus in the language providing for reimbursement to the employer of compensation paid the employee, Sec. 31-293(a) mentions two statutes specifically, Secs. 31-312 and 31-313, and three other statutory categories by implication, (1) 31-307, 31-308
and 31-308a, (2) 31-306 and (3) 31-294. Nowhere in Sec. 31-293(a) is there any specific or implied mention of Sec. 31-284b.

When that statute refers to the employee’s bringing suit for damages, it simply refers to the third party’s common law liability to pay such damages. However, when it refers to the employer’s right to bring suit, it is creating a new remedy in derogation of the common law. Moreover, “the right which the statute gives to the employer is . . . a derivative right,” Stavola v. Palmer, 136 Conn. 670, 677 (1950) citing Mickel v. New England Coal Coke Co., 132 Conn. 671, 679 (1946). Moreover, as a venerable series of cases analyzed in Castro v. Viera, 207 Conn. 420
(1988) has constantly reiterated, the jurisdiction of the Workers Compensation Commission is limited to that granted in the statutes creating it. Since neither Sec. 31-293(a) or any other statute confers upon us the power to do, we must deny the Respondent’s request that we order reimbursement of Sec. 31-284b
insurance premiums to the employer from the damages settlement obtained by the employee.

A similar condition prevails with respect to the one hundred per cent wages paid this employee by the town. The only payments mandated by the Act are those we have listed above. Those statutes make no mention of reimbursement beyond the two thirds wages amount. Failing such a mention, the commission may not order the reimbursement.

The appeal is dismissed, and the First District decision is affirmed.

Commissioners Robin Waller and James Metro concur.