Trinkley v. Ella Grasso Regional Center, 14303

• Decision Date: 07 January 1992
• Docket Number: No. 14303,14303
• Citation: 220 Conn. 739,601 A.2d 515
• Court: Connecticut Supreme Court
• Parties: Kathryn TRINKLEY v. ELLA GRASSO REGIONAL CENTER et al.

Page 515

601 A.2d 515

220 Conn. 739

Kathryn TRINKLEY v. ELLA GRASSO REGIONAL CENTER et al.

No. 14303.

Supreme Court of Connecticut.

Argued Nov. 6, 1991.

Decided Jan. 7, 1992.

Edward T. Dodd, Jr., Waterbury, for appellant (plaintiff).

Michael J. Belzer, Asst. Atty. Gen., with whom, on the brief, were Richard Blumenthal, Atty. Gen., and Charles A. Overend and Robert W. Murphy, Asst. Attys. Gen., for appellee (defendant Second Injury and Compensation Assurance Fund).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and BERDON, JJ.

PETERS, Chief Justice.

The dispositive issue in this administrative appeal is whether an injured state employee, entitled to benefits under General Statutes § 5-142(a), may also collect "concurrent employment" benefits under General Statutes § 31-310. ¹ A workers' compensation commissioner determined that the plaintiff, Kathryn Trinkley (claimant), had suffered a compensable work related injury in her primary employment with the named defendant, the Ella Grasso Regional Center (state), ² and was therefore entitled to receive her full salary pursuant to § 5-142(a). Because the claimant had been concurrently employed by the city of Waterbury, the commissioner held that she was also entitled to receive two thirds of concurrent employment benefits pursuant to § 31-310. On appeal by the state, the compensation review division concluded that the remedy provided by § 5-142(a) was exclusive and precluded any additional remedy pursuant to § 31-310. The claimant appealed to the Appellate Court, and we transferred the appeal to this court in accordance with Practice Book § 4023. We reverse.

The briefs and the record reveal the following facts. The claimant, a mental retardation aide, was totally disabled as the result of an attack by a client at the Ella Grasso Regional Center. In addition to her primary employment at the state regional home, she had also been working part-time for the city of Waterbury. At the time of her injury, her weekly salary from the state was $257 and her average weekly wage from the city was $161. She had three dependent minor children.

The claimant appeals from the determination of the compensation review division that the legislature, in enacting § 5-142(a) to provide the payment of their full salary to injured state employees, precluded the payment of concurrent employment benefits under § 31-310. She raises two issues: (1) did the compensation review division have jurisdiction to entertain the state's appeal when the state did not comply with the requirements of § 31-301(a); and (2) can a state employee recover concurrent employment benefits in addition to the special benefits provided in § 5-142(a)? ³ We are persuaded that the claimant has not established her jurisdictional claim, but we conclude that her benefits under § 5-142(a) do not deprive her of the right to receive concurrent benefits under § 31-310.

I

In her jurisdictional argument, the claimant maintains that the compensation review division had no authority to entertain the state's appeal because its appeal petition was not filed within the ten day period specified by General Statutes § 31-301(a). To support this argument, the claimant relies on the fact that the workers' compensation commissioner issued his finding and order on October 2, 1989, and on her contention that the state's filing of two copies of its petition for review on October 12, 1989, by facsimile machine did not meet the statutory mandate. The state filed the original petition for review, with the five copies specified by the statute, on October 16, 1989.

Although the statute specifies that an appeal should be taken "within ten days after entry" of a commissioner's award, we have interpreted this statutory requirement to include a requirement of notice to the party who might wish to appeal. Murphy v. Elms Hotel, 104 Conn. 351, 352, 133 A. 106 (1926). Fundamental rights to procedural due process mandate such a construction. See Kron v. Thelen, 178 Conn. 189, 193-97, 423 A.2d 857 (1979).

To establish that the state's appeal was untimely, therefore, the claimant cannot rely on the date when the workers' compensation commissioner made his award. The record contains no finding about when notice of this award was given to the state.

In the absence of such a finding, we decline to hold that the compensation review division lacked jurisdiction to hear the state's appeal. "The party challenging an administrative decision always bears the burden of demonstrating that the decision was erroneous or improperly made." Blaker v. Planning & Zoning Commission, 219 Conn. 139, 149, 592 A.2d 155 (1991). "There is a strong presumption of regularity in the proceedings of a public body such as a municipal planning and zoning commission. Foran v. Zoning Board of Appeals, 158 Conn. 331, 336, 260 A.2d 609 (1969); Scovil v. Planning & Zoning Commission, 155 Conn. 12, 19, 230 A.2d 31 (1967); 82 Am.Jur.2d, Zoning and Planning § 354 (1976); see also Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 356, 362 A.2d 948 (1975); 8A McQuillin, The Law of Municipal Corporations (3d Ed.Rev.) § 25.327." Murach v. Planning & Zoning Commission, 196 Conn. 192, 205, 491 A.2d 1058 (1985); Caserta v. Zoning Board of Appeals, 219 Conn. 352, 362, 593 A.2d 118 (1991); see also Cyr v. Coventry, 216 Conn. 436, 442-43, 582 A.2d 452 (1990) (presumption of regularity of special benefit assessments). A presumption of regularity similarly attaches to the timeliness of a workers' compensation appeal to the compensation review division.

We recognize that "certain jurisdictional facts are essential to establish the statutory jurisdiction of tribunals of limited authority." Stern v. Medical Examining Board, 208 Conn. 492, 502, 545 A.2d 1080 (1988). With respect to such facts, the jurisdiction of an administrative body "is not to be presumed and must be established affirmatively"; id., 501; because these facts are "fundamental to the power to entertain and adjudicate a proceeding on the merits. In short, such facts condition the power to act." Castro v. Viera, 207 Conn. 420, 434, 541 A.2d 1216 (1988). For example, "the existence of an employee-employer relationship is a jurisdictional fact that must be shown in order to proceed with a claim for workers' compensation benefits. Castro v. Viera, supra, at 427-35 ." Stern v. Medical Examining Board, supra, 208 Conn. at 501-502, 545 A.2d 1080.

In our view, an unresolved factual lacuna about the timeliness of an appeal does not implicate the jurisdiction of the administrative tribunal to act. The claimant suggests that Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 503 A.2d 1161 (1986), requires a contrary conclusion. We decided there that an agency's conceded failure to comply with its own specific statutory requirements for the timely processing of appeals nullified its belated adjudication of an administrative complaint. Id., at 503-506, 503 A.2d 1161. Zoning Board of Appeals is, however, distinguishable for two reasons. First, it was premised on a concession of noncompliance with statutory mandates, while this case comes to us with a finding by the compensation review division that the state was in "substantial compliance" with the requirements of § 31-301. On the current record, we cannot conclude that there was an absence of substantial evidence to support that finding. Second, Zoning Board of Appeals construed as mandatory the language of the statute governing the processing of complaints by the freedom of information commission. By contrast, in our recent decision in Besade v. Interstate Security Services, 212 Conn. 441, 450-51, 562 A.2d 1086 (1989), on a record demonstrating considerable administrative delay, we held that the statute governing workers' compensation claims does not automatically render a belated award invalid, or require a rehearing, absent a showing of prejudice. The claimant in this case has neither alleged nor made a showing of prejudice. We conclude, accordingly, that the compensation review division had jurisdiction to entertain the state's appeal.

II

In her substantive argument, the claimant asserts that the compensation review division should have allowed her to receive concurrent employment benefits under § 31-310 to supplement the salary to which she was entitled under § 5-142(a). Under § 31-310, an ordinary injured state employee who "has worked for more than one employer at the time of injury and [whose] average weekly wage received from the employer in whose employ he was injured ... [is] insufficient for him to obtain the maximum weekly compensation rate from such employer under section 31-309 prevailing at the time of his injury" may recover benefits "calculated upon the basis of wages earned from all such employers in the period of such concurrent employment...." It is undisputed that the factual predicate for the claimant's contention has been met, i.e., her salary benefit under § 5-142(a) is less than "the maximum weekly compensation rate from such employer under section 31-309 prevailing at the time of [her] injury." The question before us is, therefore, solely one of statutory construction. Did the legislature, in providing the special benefit of full salary payments for those exposed to the special risks described in § 5-142(a), intend to preclude the recovery of concurrent employment benefits under § 3-310?

The compensation review division held that "[t]otal incapacity benefits are to be paid in accordance with Sec. 5-142(a). By requiring payments of 'full salary' for injured state employees, the legislature precluded payment for Sec. 31-310 concurrent employment benefits." In reaching this conclusion, the review division relied in part on its prior holding to a similar effect in Jones v. State, 986 CRD-2-90-2 (Feb. 4, 1991). The state urges us to uphold the ruling of the division.

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