Rayhall v. Akim Co., Inc.

• Citation: 263 Conn. 328,819 A.2d 803
• Decision Date: 29 April 2003
• Docket Number: No. 16685.,16685.
• Court: Supreme Court of Connecticut
• Parties: Victor RAYHALL, v. AKIM COMPANY, INC., et al.

Page 803

819 A.2d 803

263 Conn. 328

Victor RAYHALL, v. AKIM COMPANY, INC., et al.

No. 16685.

Supreme Court of Connecticut.

Argued January 9, 2003.

Decided April 29, 2003.

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SULLIVAN, C.J., and NORCOTT, KATZ, VERTEFEUILLE and ZARELLA, Js.

Howard B. Schiller, Willimantic, for the appellant-appellee (plaintiff).

Lucas D. Strunk, Flastonbury, for the appellees-appellants (defendants).

Nathan Julian Shafner filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

KATZ, J.

The plaintiff, Victor Rayhall, and the named defendant,¹ Akim Company, Inc., respectively, appeal and cross appeal² from the decision of the compensation review board (board) affirming the decision of the workers' compensation commissioner for the second district (commissioner) that: (1) awarded to the plaintiff retroactive compensation for temporary partial incapacity; and (2) ordered the defendant, pursuant to General Statutes § 31-307(e),³ to deduct $1002 per month as a social security offset from prospective compensation to the plaintiff for temporary total incapacity. In his appeal, the plaintiff claims that the offset under § 313-07(e) discriminates based on total disability status and age in violation of the equal protection clause and his fundamental rights under article first, § 20, of the constitution of Connecticut⁴ and the equal protection clause of the United States constitution.⁵ In its cross appeal, the defendant claims that the board improperly construed General Statutes § 31-308⁶ to require the defendant to pay temporary incapacity benefits, rather than permanency benefits, once the plaintiff had achieved maximum medical improvement with respect to one of his injured legs. We conclude that § 31-307(e) is constitutional. We further conclude that, under § 31-308, an employee sustaining an injury to more than one body part may delay permanency benefits until all injured members achieve maximum medical improvement. Accordingly, we affirm the decision of the board.

The record reveals the following undisputed facts and procedural history. The plaintiff began his career with the defendant as a tool and die maker in 1952. In 1955, the plaintiff left the defendant's employ to pursue other career advancement opportunities, but returned in 1988 to become the defendant's plant manager. On October 4, 1993, the plaintiff sustained compensable injuries to both of his legs when, while assisting other employees jacking up a trailer, the jack snapped and its handle hit the plaintiff in his lower extremities. Thereafter, the plaintiff returned to work and the defendant assumed liability for the plaintiff's injuries pursuant to a voluntary agreement.

When the plaintiff's condition deteriorated so as to make working difficult, he and the defendant mutually agreed that the plaintiff would file early for social security retirement benefits, for which he would become eligible upon his sixty-second birthday. They further agreed that the plaintiff would continue to work at a reduced salary until his successor could be trained. The plaintiff continued his employment with the defendant at the reduced salary for approximately one year. On April 16, 1996, the plaintiff began to receive his social security benefits.

Subsequently, the plaintiff required knee replacement surgery on his right leg as a result of his deteriorating condition. On March 5, 1999, the plaintiff reached maximum medical improvement with respect to that leg. On October 26, 1999, the plaintiff underwent knee replacement surgery on his left leg.

In June, 2000, the plaintiff and the defendant appeared before the commissioner to contest the extent of the defendant's workers' compensation liability with respect to two different periods of time. The first issue pertained to the defendant's liability between the period of March 5, 1999, the date on which the plaintiff had reached maximum medical improvement with respect to his right leg, and October 25, 1999, the date prior to the day on which the plaintiff had surgery on his left leg. The parties stipulated to the fact that, during the period at issue, the plaintiff was temporarily partially incapacitated by his left leg injury. The defendant contended, however, that, once the plaintiff's right leg reached maximum medical improvement, irrespective of his status with respect to his left leg, the plaintiff should be considered as having a permanent partial disability, not a temporary partial incapacity and, hence, entitled only to a specific indemnity award. Conversely, the plaintiff contended that he was entitled to ongoing temporary partial incapacity benefits and the permanency award must be held in abeyance until he attained maximum medical improvement with respect to both legs. The commissioner found that "[a]lthough [the plaintiff's] right leg had reached maximum improvement on March 5, 1999, he remained partially incapacitated because of his left leg condition, which ultimately rendered him totally disabled on October 25, 1999." The commissioner, therefore, ordered the defendant to pay compensation to the plaintiff for temporary partial incapacity for the period between March 5, 1999, and October 25, 1999, with credit for amounts already paid for that period.

The second issue before the commissioner pertained to the defendant's liability for the period after the plaintiff had surgery on his left leg, at which time he became temporarily totally incapacitated. Specifically at issue was the offset, pursuant to § 31-307(e), for social security old age benefits against total disability benefits. The plaintiff contended that the offset violates the equal protection clause of the state and federal constitutions.⁷ The commissioner concluded that the workers' compensation commission has no authority, as an administrative tribunal with limited jurisdiction, to declare § 31-307(e) unconstitutional. Accordingly, the commissioner ordered that the defendant deduct $1002 per month,⁸ as a social security offset, from any compensation paid to the plaintiff for total incapacity.⁹ Thereafter, the plaintiff appealed from the commissioner's decision to the board, asserting his constitutional challenge to § 31-307(e). See footnote 3 of this opinion. The defendant cross appealed, claiming that the commissioner improperly had ordered it to compensate the plaintiff for temporary partial incapacity for the period preceding the plaintiff's left leg surgery, notwithstanding the fact that the plaintiff had reached maximum medical improvement on his right leg.

The board concluded that it lacked jurisdiction to consider the plaintiff's constitutional challenge, but affirmed by a majority the commissioner's decision with respect to the defendant's cross appeal. In reaching its conclusion, the board focused on the interrelationship between two sections of the Workers' Compensation Act addressing permanent incapacity — § 31-308(b), which entitles an employee suffering a permanent disability to a specified body part to payment of a fixed amount of benefits, and General Statutes § 31-295, which mandates when compensation for permanent incapacity must be paid. The board focused on language in § 31-295(c), which provides that an employee entitled to receive compensation under § 31-308(b) must receive payment "beginning not later than thirty days following the date of the maximum improvement of the member or members ...." (Emphasis added.) The board concluded that the interpretation that gave the most consistent, substantive effect to the term "or members" was to construe it to mean maximum medical improvement of all members. Under this construction, the board reasoned that an employee suffering injury to multiple body parts could elect a choice of remedies: (1) to receive the specific indemnity award for permanent disability upon reaching maximum medical improvement with respect to one body part and, upon expiration of that award, to receive temporary partial incapacity benefits, if the circumstances so warranted; or (2) to receive temporary partial incapacity benefits until all injured body parts reached maximum medical improvement, at which time the employee would receive the specific indemnity award for his or her permanent disability. One of the three commissioners on the board dissented, focusing in particular on the language in § 31-308(b) that requires compensation for permanent disability "in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation ...." (Emphasis added.) That commissioner concluded that this language mandates that, in cases of multiple injuries, an employee must exhaust the permanency award before temporary partial incapacity benefits may become available. This appeal and cross appeal followed.

I

We begin with the issue raised by the plaintiff's appeal, namely, whether the social security offset under § 31-307(e) is unconstitutional. As a preliminary matter, however, we address the question of whether we have subject matter jurisdiction over the plaintiff's appeal in view of the fact that the board lacked jurisdiction to reach that issue in the underlying proceedings.¹⁰ Although both parties agree that this court has jurisdiction, "a subject matter jurisdictional defect may not be waived ... [or] conferred by the parties, explicitly or implicitly." (Citations omitted.) Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 266, 777 A.2d 645 (2001); accord Hayes v. Beresford, 184 Conn. 558, 562, 440 A.2d 224 (1981). "[T]he question of subject matter jurisdiction is a question of law ... and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case." (Citation omitted.) Giaimo v. New Haven, 257 Conn. 481, 517, 778 A.2d 33 (2001) (Borden, J., concurring).

A

It is well settled under the common law that adjudication of the...