McFarland v. Dept. of Development Svcs., No. 29525.

• Citation: 115 Conn.App. 306,971 A.2d 853
• Decision Date: 23 June 2009
• Docket Number: No. 29525.
• Parties: Kenneth McFARLAND v. DEPARTMENT OF DEVELOPMENTAL SERVICES et al.
• Court: Appellate Court of Connecticut

971 A.2d 853

115 Conn.App. 306

Kenneth McFARLAND v. DEPARTMENT OF DEVELOPMENTAL SERVICES et al.

No. 29525.

Appellate Court of Connecticut.

Argued February 20, 2009.

Decided June 23, 2009.

Michael J. Belzer, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellee (named defendant).

Edward T. Dodd, Jr., Cheshire, with whom, on the brief, was Laura Ondrush, for the appellee (plaintiff).

BISHOP, DiPENTIMA and LAVINE, Js.

DiPENTIMA, J.

The defendant department of developmental services¹ appeals from the decision of the workers' compensation review board (board) affirming the decision of the workers' compensation commissioner (commissioner) awarding the plaintiff, Kenneth McFarland, temporary total disability payments, interest² and attorney's fees. On appeal, the defendant claims that the commissioner improperly (1) ordered payment of temporary total disability benefits even though the plaintiff had received his full wages, (2) denied its motion to correct, (3) found the plaintiff to be a credible witness and (4) awarded attorney's fees. We agree with some of the defendant's claims and, accordingly, reverse in part and affirm in part the decision of the board.

The following factual and procedural history is relevant to the issues presented on appeal. The plaintiff had been a longtime employee of the defendant. In May, 1987, he suffered a compensable injury to his right shoulder for which he received all benefits to which he was entitled.³ In May, 1996, the plaintiff sustained a second injury to his right shoulder that also was deemed compensable.⁴ That injury required surgery, and the plaintiff again received all benefits to which he was entitled. The plaintiff's right shoulder progressively became more symptomatic and required treatment from Michael J. Kaplan, the surgeon who previously had operated on the plaintiff's shoulder. Kaplan opined that the plaintiff became temporarily totally disabled⁵ from June 16, 2004, to March 29, 2005.⁶ During this time period, the plaintiff received only twelve weeks of temporary total disability payments.

On August 14, 2004, Craig Foster, a physician, performed an independent medical examination. Foster diagnosed the plaintiff with early arthritis and assigned a 12 percent disability rating to the plaintiff's right shoulder. Foster did not review any other medical reports pertaining to the plaintiff, including any of the prior injuries to his right shoulder.

The commissioner found that the plaintiff was entitled to temporary total disability benefits, for the approximate nine month time period from June 16, 2004, to March 29, 2005. The commissioner determined that the defendant had withheld payment of the temporary total disability payments because the plaintiff had been suspended without pay as a result of a disciplinary matter. Specifically, the commissioner found that the defendant had "believed that it would prevail in [the disciplinary] hearing and that [the plaintiff] would then be obligated to refund money to the [state]. Their failure to pay temporary total disability benefits would minimize the amount [the plaintiff] would have to refund ...."

Subsequent to June 1, 2005, the plaintiff was exonerated from any fault or responsibility with respect to the disciplinary hearing. The defendant then paid all wages owed to the plaintiff for the time period of his total disability. Aside from the twelve weeks of benefits, the plaintiff had not received any other disability benefits for the time that he was totally disabled. The commissioner found the delay of benefits to be unreasonable and awarded the plaintiff interest and attorney's fees.⁷

The defendant filed its appeal from the commissioner's decision to the board on December 27, 2006. On January 4, 2007, the defendant filed a motion to correct the commissioner's decision. On January 12, 2007, the commissioner denied the motion to correct in its entirety.

On December 21, 2007, the board issued its decision affirming the commissioner's finding and award. The board concluded that the commissioner's factual findings were supported by the record, that the plaintiff was entitled to workers' compensation benefits and that the award of interest and attorney's fees did not constitute an abuse of discretion. This appeal followed. Additional facts will be set forth as necessary.

Before addressing the specific claims presented by the defendant, we set forth certain general principles pertaining to our workers' compensation jurisprudence. "Our workers' compensation scheme indisputably is a remedial statute that should be construed generously to accomplish its purpose.... The humanitarian and remedial purposes of the act counsel against an overly narrow construction that unduly limits eligibility for workers' compensation [benefits].... To recover under the Workers' Compensation Act [General Statutes § 31-275 et seq.], a plaintiff must prove that the claimed injury is connected causally to the employment by demonstrating that the injury (1) arose out of the employment and (2) occurred in the course of the employment." (Internal quotation marks omitted.) Marandino v. Prometheus Pharmacy, 105 Conn.App. 669, 677, 939 A.2d 591, cert. granted on other grounds, 286 Conn. 916, 917, 945 A.2d 977 (2008).

"A party aggrieved by a commissioner's decision to grant or deny an award may appeal to the board pursuant to General Statutes § 31-301. The board is obliged to hear the appeal on the record and not retry the facts .... [T]he power and duty of determining the facts rests on the commissioner, the trier of facts.... The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.... Our scope of review of the actions of the board is similarly limited.... The role of this court is to determine whether the ... [board's] decision results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them." (Citation omitted; internal quotation marks omitted.) Brown v. United Technologies Corp., 112 Conn.App. 492, 496-97, 963 A.2d 1027, cert. granted on other grounds, 291 Conn. 906, 967 A.2d 1220 (2009); see also Brinson v. Finlay Bros. Printing Co., 77 Conn.App. 319, 323, 823 A.2d 1223 (2003).

I

The defendant first claims that the commissioner improperly ordered payment of temporary total disability benefits even though the plaintiff had received his full wages. Specifically, it argues that the plaintiff's receipt of both his full wages and temporary total disability benefits for the same time period constitutes a double recovery.⁸ We agree that the commissioner's decision permits such a double recovery and therefore is improper.

The following additional facts are necessary for our discussion. Between June 16, 2004, and March 29, 2005, the plaintiff received only twelve weeks of temporary total disability payments. At some point during this time period, the plaintiff became involved in a disciplinary hearing and was suspended without pay. Subsequent to June 1, 2005, the plaintiff was exonerated from any wrongdoing, and the defendant paid the plaintiff his wages for the aforementioned time period. It bears emphasizing that both parties agree that the plaintiff received all of his wages for the time period during which he was temporarily totally disabled.

In his decision, the commissioner ordered the defendant to pay the plaintiff, inter alia, temporary total disability payments from June 16, 2004, until March 29, 2005. The defendant does not challenge the commissioner's finding that the plaintiff met his burden of establishing his entitlement to workers' compensation benefits.⁹ The defendant does challenge the commissioner's failure to consider the defendant's prior payment of wages for that time period. The record indicates that the plaintiff has received wages and temporary total disability benefits for the same period. In other words, the commissioner did not order a deduction or offset to prevent a double recovery.¹⁰

In Loftus v. Vincent, 49 Conn.App. 66, 713 A.2d 892 (1998), this court considered a situation similar to the present case. In Loftus, the plaintiff injured his back while working at the defendant's service station. Id., at 68, 713 A.2d 892. The defendant became suspicious of the plaintiff's injuries and refused to read the physician's note stating that the plaintiff should not work for three days. Id., at 68-69, 713 A.2d 892. The next day, the defendant threatened to call the police if the plaintiff did not return his keys and uniform. Id., at 69, 713 A.2d 892. This court affirmed the commissioner's decision that the defendant committed a retaliatory discharge in violation of General Statutes § 31-290a. Id., at 70-71, 713 A.2d 892.

We agreed, however, with the defendant in Loftus that the commissioner failed to offset the award by the amount of workers' compensation received by the plaintiff. Id., at 72-74, 713 A.2d 892. Specifically, we stated: "Long ago, this state adopted the position that [o]ur [Workers' Compensation] Act does not permit double compensation.... When an injury entitles a worker to benefits both under the compensation statute and under other legislation, so that a double burden would be imposed on the employer, our courts have held that compensation payments during the period of disability reduce the employer's obligation created by other legislation.... A similar policy of avoiding a double recovery or double burden is incorporated in General Statutes § 31-314: In fixing the amount of any compensation under this chapter, due allowance shall be made for any sum which the employer has paid to any injured employee or to his dependents on account of the injury, except such sums as...