Gardner v. Dept. of Mental Health & Addiction Services

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BEULAH GARDNER v. DEPARTMENT OF MENTAL
HEALTH AND ADDICTION SERVICES ET AL.
(AC 45594)
Moll, Cradle and Suarez, Js.

Syllabus

The plaintiff, who had sustained a compensable work-related injury during
her employment, appealed to this court from the decision of the Compen-
sation Review Board, which upheld the decision of the Workers’ Com-
pensation Commissioner granting the defendant employer’s request to
convert the plaintiff’s benefits for temporary partial disability, pursuant
to statute (§ 31-308 (a)), to permanent partial disability benefits, pursu-
ant to § 31-308 (b), after medical examinations determined that the
plaintiff had attained maximum medical improvement and had a light-
duty work capacity. The plaintiff claimed that the board had improperly
determined that, because she had reached maximum medical improve-
ment, she could no longer receive temporary partial disability benefits
pursuant to § 31-308 (a). Although the plaintiff contended that the
Supreme Court in Osterlund v. State (129 Conn. 591) had recognized
the discretion of a commissioner to award ongoing temporary partial
disability benefits to a claimant who had reached maximum medical
improvement, the board reasoned that, although the holding in Osterlund
had been codified in § 31-308 (d), that statutory provision had been
repealed by the legislature in 1993. On the plaintiff’s appeal to this
court, held that the board properly interpreted the authority afforded the
commissioner pursuant to § 31-308 (a) and upheld the commissioner’s
determination: despite the plaintiff’s claim that the commissioner had
discretion pursuant to § 31-308 to award ongoing wage loss disability
benefits in lieu of permanent partial disability benefits after she attained
maximum medical improvement, this court determined that, although
neither § 31-308 nor other provisions of the Workers’ Compensation
Act (§ 31-275 et seq.) expressly address whether a commissioner is
authorized to continue to award temporary partial disability benefits in
lieu of permanent partial disability benefits after the injured employee
reaches maximum medical improvement, the legislature omitted such
authority in 1993 when it revised § 31-308 to eliminate subsection (d) and
has statutorily (§ 31-295 (c)) required that permanent partial disability
benefits be paid after the date of maximum medical improvement; more-
over, § 31-308 (a) limits the duration of disability benefits and § 31-295
(c) requires that permanent partial disability benefits pursuant to § 31-
308 (b) shall be paid after the date of maximum medical improvement;
furthermore, prior decisions of this state’s courts bolstered this court’s
determination that temporary partial disability benefits are available
under § 31-308 (a) only until the claimant reaches maximum medical
improvement.
Argued September 11, 2023—officially released January 9, 2024

Procedural History

Appeal from the decision of the Workers’ Compensa-
tion Commissioner for the Fifth District approving the
conversion of the plaintiff’s temporary partial disability
benefits to permanent partial disability benefits and
denying ongoing temporary partial disability benefits,
brought to the Compensation Review Board, which
affirmed the commissioner’s decision, and the plaintiff
appealed to this court. Affirmed.
Justin A. Raymond, for the appellant (plaintiff).
Lisa Guttenberg Weiss, assistant attorney general,
with whom, on the brief, were William Tong, attorney
general, and Matthew Larock, deputy associate attorney
general, for the appellee (named defendant).
Robert F. Carter filed a brief for the Connecticut Trial
Lawyers Association as amicus curiae.
Dana M. Hrelic and Meagan A. Cauda filed a brief
for the Connecticut Business and Industry Association
et al. as amici curiae.
Opinion

SUAREZ, J. In this workers’ compensation dispute,
the plaintiff, Beulah Gardner, appeals from the decision
of the Compensation Review Board (board) affirming
the decision of the Workers’ Compensation Commis-
sioner for the Fifth District (commissioner) of the Work-
ers’ Compensation Commission1 approving a form 362
that was filed by the defendants, the Department of
Mental Health and Addiction Services (department) and
Gallagher-Bassett Services, Inc.,3 and denying the plain-
tiff’s claim for ongoing temporary partial disability ben-
efits pursuant to General Statutes § 31-308 (a).4 The
plaintiff claims that the board improperly determined
as a matter of law that, in light of the undisputed fact
that she had reached maximum medical improvement,
she could no longer receive benefits pursuant to § 31-
308 (a). We affirm the decision of the board.
The commissioner set forth the following findings
of fact. ‘‘On April 19, 2016, [the plaintiff] suffered a
compensable work-related injury to her left wrist while
employed with the [department]. The injury occurred
while [the plaintiff] was restraining a patient when her
hand became caught, causing inflammation and pain.
. . .
‘‘At the time of the injury, [the plaintiff] was employed
as a forensic treatment specialist at Whiting Forensic
Institute. Her job involved care and treatment of men-
tally ill patients. The [plaintiff] is eligible to receive 100
percent benefits pursuant to General Statutes § 5-142
(a) for injuries suffered as a result of physically
restraining patients of the facility. . . .
‘‘On May 8, 2018, [a workers’ compensation commis-
sioner] approved a voluntary agreement accepting com-
pensability of the April 19, 2016 injury. Dr. Stanley Fos-
ter is listed as the authorized treating physician for
the injury, listed as follows: Left nondominant wrist
intersection syndrome and [carpal tunnel syndrome].
. . .
‘‘The compensation rate for temporary total disability
was established at $1256 [per week], based upon con-
current wages of $2440.30 per week. The compensation
rate for temporary partial disability and permanent par-
tial disability was agreed upon at $998 [per week]. . . .
‘‘At the time of the compensable injury, [the plaintiff]
was working concurrently for Sheriden Woods [Health
Care Center] in Bristol . . . . These wages are factored
in the voluntary agreement. . . .
‘‘Following the incident, [the plaintiff] received con-
servative medical treatment and was paid indemnity
benefits. On May 17, 2017, she underwent a left-hand
trigger thumb release surgery by [Foster]. Following
this procedure, the [plaintiff] continued to have persis-
tent pain. She thereafter came under the care of Dr.
Duffield Ashmead, who performed a second surgical
procedure on March 8, 2019. Her symptoms improved
thereafter. . . .
‘‘On October 4, 2019, the [department] sent a separa-
tion letter to [the plaintiff] pursuant to General Statutes
§ 5-244. This letter indicated that, because she had been
provided permanent restrictions by [Ashmead] that did
not allow her to continue in her position at Whiting
Forensic Hospital, she could be transferred to a less
arduous position with another agency within the state of
Connecticut. In addition, this communication provided
that [the plaintiff] could resign from her job or seek
disability retirement. . . .
‘‘On October 28, 2019, the [plaintiff] presented to Dr.
Pavel Straznicky for an examination at the request of
the [department]. As a result of the examination and
review of records, [Straznicky] diagnosed post-trau-
matic chronic synovitis of the left wrist. [Straznicky]
further opined that [the plaintiff] has attained maximum
medical improvement relative to the compensable
injury and resulting surgical procedures.5 He opined
that the [plaintiff] had a light-duty work capacity with
a twenty pound lifting restriction on her left hand and
indicated she could not restrain patients. . . .
‘‘On March 11, 2020, [Ashmead] also opined that the
[plaintiff] had attained maximum medical improve-
ment, as it was nearly one year postsurgical interven-
tion. He provided an 8 percent permanent partial impair-
ment rating to the [plaintiff’s] left wrist.6 On work
capacity, [Ashmead] indicated the following: [The plain-
tiff] is once again judged capable of work at a light level
on nonhand intensive or repetitive physical demand,
lifting, pushing, pulling, not to exceed twenty pounds.
She seems an ideal candidate for vocational redirec-
tion. . . .
‘‘On May 21, 2020, the [defendants] filed a form 36
Notice of Intention to Reduce or Discontinue Payments
seeking to convert temporary partial disability benefits
to permanent partial disability benefits due to [Ash-
mead’s] opinion that the [plaintiff] had attained maxi-
mum medical improvement and had a light-duty work
capacity. . . .
‘‘In addition to the filing of the form 36, the [defen-
dants] sent to the [plaintiff], through her attorney, vol-
untary agreements recognizing the 8 percent rating as
provided by [Ashmead]. This agreement establishes
March 11, 2020, as the date of maximum medical
improvement.’’ (Footnotes added.)
The plaintiff and the defendants appeared before the
commissioner at a formal hearing on December 14,
2020. The commissioner framed the issues before him
as (1) whether the form 36, which was filed on May
21, 2020, seeking to convert the plaintiff’s indemnity
benefits from temporary partial disability pursuant to
§ 31-308 (a) to permanent partial disability pursuant to
§ 31-308 (b) should be granted, and (2) whether the
plaintiff was entitled to temporary partial disability pay-
ments pursuant to § 31-308 (a). The commissioner aptly
summarized the positions of the parties: ‘‘It is the [plain-
tiff’s] position that a workers’ compensation commis-
sioner has discretion pursuant to . . . § 31-308 to
award ongoing wage loss disability benefits in lieu of
permanent partial disability benefits after an injured
worker has attained maximum medical improvement.
In support of this position, the [plaintiff] is relying on
the Supreme Court’s ruling in Osterlund v. State, 129
Conn. 591 [30 A.2d 393] (1943). It is her position that
Osterlund holds that, when a claimant has been
assigned a permanent partial disability, the words of
the statute compel the conclusion that the commis-
sioner has the discretion to award continuing wage loss
benefits in lieu of permanent partial disability [benefits]
based upon factors including work limitations, concur-
rent employment, loss of function, and its disparate
impact on her earning potential. . . .
‘‘In support of her position, the [plaintiff] entered
evidence of records of employment contracts as proof
of her inability to obtain employment as a direct result
of the compensable injury. These job search forms rep-
resent approximately fifty-one weeks of unsuccessful
attempts to garner employment within her level of dis-
ability. . . .
‘‘It is the [defendants’] position that the [plaintiff] is
not eligible for unlimited temporary partial disability
benefits pursuant to § 31-308 (a) as a matter of law.
They are of the position that wage loss benefits cease
once an injured worker has been placed at maximum
medical improvement and, at that point, permanent par-
tial disability becomes due. After payment of this bene-
fit expires, the injured worker has a right to seek addi-
tional discretionary wage loss benefits pursuant to
General Statutes § 31-308a. However, these postspecific
discretionary benefits have statutory limitations. The
[defendants] are of the further position that the
Supreme Court’s decision in Osterlund only applies to
temporary total disability benefits and that . . . § 31-
308 (a) was enacted after Osterlund, thereby rendering
the decision moot.’’
The commissioner, expressly relying on the reports
and opinions of Ashmead and Straznicky, found that the
plaintiff had attained maximum medical improvement
following the April 19, 2016 injury. The commissioner
found that the plaintiff ‘‘has suffered permanent work
restrictions directly related to her compensable injury
that have rendered her incapable of returning to her job
as a forensic treatment specialist.’’ The commissioner
rendered his decision on June 2, 2021, in which he
approved the form 36, filed on May 21, 2020,7 seeking
to convert indemnity benefits from temporary partial
disability pursuant to § 31-308 (a) to permanent partial
disability pursuant to § 31-308 (b), effective May 21,
2020. The commissioner denied the plaintiff’s claim for
ongoing temporary partial disability benefits in reliance
on § 31-308 (b).8
Thereafter, the plaintiff appealed from the commis-
sioner’s decision to the board. The plaintiff, in her
appeal to the board, did not take issue with the commis-
sioner’s findings of fact but, rather, challenged the com-
missioner’s interpretation of § 31-308. The board
addressed the plaintiff’s reliance on § 31-308 (b) and our
Supreme Court’s decision in Osterlund, which explicitly
recognized the authority of a commissioner to award
ongoing temporary partial disability benefits to a claim-
ant who had reached maximum medical improvement.
In interpreting language in § 31-308 (b) on which the
plaintiff relied, however, the board was guided by the
fact that, in 1967, Osterlund’s holding was subsequently
codified in § 31-308 (d), but that, in 1993, our legislature
repealed subsection (d) of the statute. See Public Acts
1993, No. 93-228 (P.A. 93-228). Considering this ‘‘legisla-
tive activity,’’ the board, in a thorough analysis, rejected
the plaintiff’s reliance on Osterlund and her contention
that § 31-308 (b) should be interpreted to afford the
commissioner the authority to award ongoing tempo-
rary partial disability benefits under § 31-308 (a). This
appeal followed.
‘‘The principles that govern our standard of review
in workers’ compensation appeals are well established.
The conclusions drawn by [the commissioner] 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. . . . Cases that present pure questions of
law, however, invoke a broader standard of review than
is ordinarily involved in deciding whether, in light of
the evidence, the agency has acted unreasonably, arbi-
trarily, illegally or in abuse of its discretion. . . . It
is well established that [a]lthough not dispositive, we
accord great weight to the construction given to the
workers’ compensation statutes by the commissioner
and [the] board. . . . A state agency is not entitled,
however, to special deference when its determination
of a question of law has not previously been subject to
judicial scrutiny. . . . Whe[n] . . . [a workers’ com-
pensation] appeal involves an issue of statutory con-
struction that has not yet been subjected to judicial
scrutiny, this court has plenary power to review the
administrative decision.’’ (Citation omitted; internal
quotation marks omitted.) Cochran v. Dept. of Trans-
portation, 220 Conn. App. 855, 865–66, 299 A.3d 1247
(2023).
The plaintiff’s claim requires us to determine whether
a commissioner has the authority pursuant to § 31-308
to award ongoing temporary partial disability benefits
to a claimant who has reached maximum medical
improvement. Thus, the claim presents this court with
an issue of statutory interpretation. The plaintiff does
not challenge the facts found by the commissioner, on
which the board relied, and the present claim does
not hinge on whether the commissioner has correctly
applied the correct and governing legal standard to
the subordinate facts. Instead, the claim requires us to
determine if the board correctly interpreted the govern-
ing statute that it then applied to the facts of the pres-
ent case.
The department urges us to afford deference to the
board’s statutory interpretation, arguing that the com-
missioner and the board ‘‘adopted a time-tested inter-
pretation [of § 31-308] that has been subjected to judi-
cial scrutiny.’’ In support of this contention, the
department cites to this court’s decision in Testone v.
C. R. Gibson Co., 114 Conn. App. 210, 969 A.2d 179, cert.
denied, 292 Conn. 914, 973 A.2d 663 (2009). Although,
in Testone, this court stated that ‘‘[t]emporary partial
disability payments under . . . § 31-308 (a) are avail-
able until the injured worker has reached maximum
medical improvement’’; (internal quotation marks omit-
ted) id., 220; it did so in the context of a claim concern-
ing a workers’ compensation commissioner’s admission
and reliance on three independent medical examination
reports. Id., 215. The court in Testone was not called
on to resolve the distinct issue of whether a commis-
sioner has the authority under § 31-308 (a) to award
temporary partial disability payments after a claimant
has reached maximum medical improvement. On this
ground, as well as our own research, we are not per-
suaded that the board followed a time-tested interpreta-
tion of the statute that has been subjected to judicial
scrutiny. Because we are convinced that this appeal
raises an issue of statutory interpretation of first impres-
sion, our review is plenary. See, e.g., Bergeson v. New
London, 269 Conn. 763, 769, 850 A.2d 184 (2004).
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning
. . . [General Statutes] § 1-2z directs us first to consider
the text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . If, however, when
considered in relation to other statutes, the statutory
text at issue is susceptible to more than one plausible
interpretation, we may appropriately consider extratex-
tual evidence.’’ (Citation omitted; internal quotation
marks omitted.) Williams v. New Haven, 329 Conn.
366, 375, 186 A.3d 1158 (2018).
Before turning to the text of the statute, it is helpful
to set forth the following relevant principles as
explained by our Supreme Court: ‘‘[W]e are mindful of
the distinction between incapacity benefits and disabil-
ity benefits. Benefits available under the [Workers’
Compensation Act (act), General Statutes § 31-275 et
seq.] serve the dual function of compensating for the
disability arising from the injury and for the loss of
earning power resulting from that injury. . . . Com-
pensation for the disability takes the form of payment
of medical expenses; General Statutes § 31-294d; and
specific indemnity awards, which compensate the
injured employee for the lifetime handicap that results
from the permanent loss of, or loss of use of, a sched-
uled body part. . . .
‘‘Compensation for loss of earning power takes the
form of partial or total incapacity benefits. . . . Inca-
pacity, as that term is used under the [act], means inca-
pacity to work, as distinguished from the loss or loss
of use of a member of the body. . . .
‘‘We have noted that § 31-308 specifically provides
that compensation for permanent partial disability shall
be in addition to the usual compensation for total inca-
pacity. While we have held that the [act] prohibits con-
current payment of benefits for permanent partial dis-
ability and temporary total [incapacity] . . . it is clear
that these two types of benefits compensate an
employee for different types of loss . . . and that the
payment of [General Statutes] § 31-307 temporary total
[incapacity] benefits does not discharge the obligation
to pay § 31-308 permanent partial disability benefits at
some point in the future. . . .
‘‘Because the two types of benefits compensate an
employee for distinct losses, entitlement to the two
benefits is triggered by different factors. Entitlement
to incapacity benefits depends on the employee’s capac-
ity to work. General Statutes §§ 31-307 (a) and 31-308
(a). As for entitlement to disability benefits, because
the extent of that award necessarily depends on both
the establishment of a permanent disability and the
extent of the disability, [w]e have long held that an
injured worker has a right to a permanent partial disabil-
ity award once he or she reaches maximum medical
improvement. . . . In Panico v. Sperry Engineering
Co., [113 Conn. 707, 714, 156 A. 802 (1931)], we
explained that a permanent partial award became due
when the worker reached maximum improvement. See
also Stapf v. Savin, 125 Conn. 563, 565, 7 A.2d 226
(1939). In Osterlund v. State, [supra, 129 Conn. 597–
600], we overruled Panico and Stapf to the extent that
they precluded a commissioner from exercising his or
her discretion to continue total disability payments to
a worker who had reached maximum medical improve-
ment but was still totally disabled from working. In
Osterlund, we explained that there might be, in case
of a partial loss of function, a great disproportion
between the amount of specific compensation provided
and the actual effect of the injury, either from the stand-
point of the employee’s earning capacity or the physical
impairment he suffered. . . . We further explained,
however, that in a case . . . in which the worker has
reached maximum medical improvement and his per-
manent partial disability award has thereby vested . . .
the commissioner does not have discretion to deny such
an award if the worker requests that award . . . . Once
an employee whose right to a disability benefit award
has vested because that employee has reached maxi-
mum medical improvement requests payment of the
disability benefits, the commissioner no longer has dis-
cretion to deny the award of the disability benefits,
regardless of whether the employee remains totally
incapacitated.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) Churchville v. Bruce
R. Daly Mechanical Contractor, 299 Conn. 185, 192–95,
8 A.3d 507 (2010).
‘‘Partial incapacity benefits are available when the
employee is able to perform some employment, but [is]
unable fully to perform his or her customary work
. . . . The duration of partial incapacity benefits is lim-
ited by statute. . . . Conversely . . . [t]otal incapac-
ity benefits, unlike partial incapacity benefits, are
unrestricted as to duration.’’ (Citations omitted; internal
quotation marks omitted.) Starks v. University of Con-
necticut, 270 Conn. 1, 9, 850 A.2d 1013 (2004). ‘‘Partial
incapacity benefits are available when the employee is
able to perform some employment, but [is] unable fully
to perform his or her customary work . . . . Although
an employee who is partially incapacitated may, in fact,
not be working, the employee must be available to work,
if suitable employment is available. . . . Accordingly,
partial incapacity benefits are available when an actual
wage loss has resulted from the injury, providing a wage
supplement for the difference between the wages the
worker would have earned, but for the injury, and the
wages the worker currently is able to earn. . . . The
duration of partial incapacity benefits is limited by stat-
ute. . . .
‘‘Conversely, total incapacity is defined as the inabil-
ity of the employee, because of his injuries, to work at
his customary calling or at any other occupation which
he might reasonably follow. . . . Total incapacity ben-
efits, unlike partial incapacity benefits, are unrestricted
as to duration.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) Rayhall v. Akim Co.,
263 Conn. 328, 350–51, 819 A.2d 803 (2003).
A commissioner has the authority to award tempo-
rary partial disability payments pursuant to § 31-308.9
Specifically, subsection (a) of § 31-308 provides: ‘‘If any
injury for which compensation is provided under the
provisions of this chapter results in partial incapacity,
the injured employee shall be paid a weekly compensa-
tion equal to seventy-five per cent of the difference
between the wages currently earned by an employee
in a position comparable to the position held by the
injured employee before his injury, after such wages
have been reduced by any deduction for federal or state
taxes, or both, and for the federal Insurance Contribu-
tions Act in accordance with [General Statutes §] 31-
310, and the amount he is able to earn after the injury,
after such amount has been reduced by any deduction
for federal or state taxes, or both, and for the federal
Insurance Contributions Act in accordance with [§] 31-
310, except that when (1) the physician, physician assis-
tant or advanced practice registered nurse attending an
injured employee certifies that the employee is unable
to perform his usual work but is able to perform other
work, (2) the employee is ready and willing to perform
other work in the same locality and (3) no other work
is available, the employee shall be paid his full weekly
compensation subject to the provisions of this section.
Compensation paid under this subsection shall not be
more than one hundred per cent, raised to the next even
dollar, of the average weekly earnings of production
and related workers in manufacturing in the state, as
determined in accordance with the provisions of [Gen-
eral Statutes §] 31-309, and shall continue during the
period of partial incapacity, but no longer than five
hundred twenty weeks. If the employer procures
employment for an injured employee that is suitable to
his capacity, the wages offered in such employment
shall be taken as the earning capacity of the injured
employee during the period of the employment.’’
A commissioner has the authority to award perma-
nent partial disability payments pursuant to § 31-308
(b), which provides in relevant part: ‘‘With respect to
the following injuries, the compensation, in addition to
the usual compensation for total incapacity but in lieu
of all other payments for compensation, shall be sev-
enty-five percent of the average weekly earnings of the
injured employee . . . after such earnings have been
reduced by any deduction for federal or state taxes, or
both, and for the federal Insurance Contributions Act
made from such employee’s total wages received during
the period of calculation of the employee’s average
weekly wage . . . but in no case more than one hun-
dred per cent, raised to the next even dollar, of the
average weekly earnings of production and related
workers in manufacturing in the state . . . or less than
fifty dollars weekly. All of the following injuries include
the loss of the member or organ and the complete and
permanent loss of use of the member or organ referred
to . . . .
‘‘If the injury consists of the loss of a substantial part
of a member resulting in a permanent partial loss of the
use of a member, or if the injury results in a permanent
partial loss of function, the [commissioner] may, in the
[commissioner’s] discretion, in lieu of other compensa-
tion, award to the injured employee the proportion of
the sum provided in this subsection for the total loss
of, or the loss of use of, the member or for incapacity
or both that represents the proportion of total loss or
loss of use found to exist, and any voluntary agreement
submitted in which the basis of settlement is such that
proportionate payment may, if otherwise conformable
to the provisions of this chapter, be approved by the
[commissioner] in the [commissioner’s] discretion.
. . .’’10
Our interpretation of the act ‘‘is guided by the princi-
ples underlying Connecticut practice in [workers’] com-
pensation cases: that the legislation is remedial in
nature . . . and that it should be broadly construed to
accomplish its humanitarian purpose. . . . We, there-
fore, do not construe the [act] to impose limitations on
benefits that the act itself does not specify clearly.’’
(Internal quotation marks omitted.) Rayhall v. Akim
Co., supra, 263 Conn. 357–58.
As reflected in the statutory language previously set
forth, the duration of partial disability benefits is limited
by statute to the lesser duration of either the period
of partial incapacity or 520 weeks. Moreover, General
Statutes § 31-295 (c) provides that permanent partial
disability benefits pursuant to § 31-308 (b) shall be paid
after the date of maximum medical improvement of the
injured employee.11 As stated previously in this opinion,
the act has been interpreted to preclude the concurrent
payment of incapacity benefits and disability benefits.
Although the duration of partial disability benefits is
expressly limited by the act, and the act provides that
permanent partial disability payments become payable
after an injured employee has attained maximum medi-
cal improvement, neither the plain language of § 31-308
nor the other provisions of the act expressly address
whether a commissioner is authorized to continue to
award temporary partial disability benefits in lieu of
permanent partial disability benefits after an injured
employee has reached maximum medical improvement.
With respect to this issue, the act does not set forth
either an express grant of authority or an express limita-
tion of authority to a commissioner.
The legislative history of § 31-308 sheds light on the
issue before us. In 1967, the legislature amended § 31-
308 to expressly afford a workers’ compensation com-
missioner the authority to award either ongoing tempo-
rary partial disability benefits or permanent partial dis-
ability payments after a claimant had reached maximum
medical improvement. As a result of further revisions
to the statute subsequent to the 1967 amendment, the
legislature, through § 26 of No. 91-32 of the 1991 Public
Acts, ultimately codified this grant of authority in sub-
section (d) of § 31-308.12 Twenty-six years after the 1967
amendment, the legislature, as part of a series of cost-
cutting reforms to the act, eliminated the then existing
subsection (d) in its entirety.13 See P.A. 93-228, § 19.
Thus, the legislature revoked the grant of authority it
had bestowed upon commissioners to award partial
compensation for lost earnings after a claimant had
reached maximum medical improvement.
In light of the fact that § 31-308 does not expressly
authorize the payment of temporary partial disability
payments to a claimant who has reached maximum
medical improvement, and the legislative history
strongly evinces the legislature’s will to extinguish the
authority of commissioners to award such benefits
upon a claimant’s having reached permanency status,
we concur with the board’s reasonable interpretation
of the statute.
As she did before the board, the plaintiff argues that
Osterlund v. State, supra, 129 Conn. 591, compels the
opposite conclusion.14 The plaintiff argues that, in Ost-
erlund, our Supreme Court ‘‘held that, when a claimant
has been assigned a permanent partial disability, the
statute unequivocally grants the [commissioner] the dis-
cretion to award continuing wage loss benefits instead
of permanent partial disability benefits.’’
In Osterlund, our Supreme Court stated that, ‘‘where
there is a total or partial incapacity followed by a perma-
nent partial loss of function the situation is governed
by the portion of the statute we have quoted, which
provides that, in such a case, the commissioner ‘may,
in his discretion, in lieu of other compensation’ make
an award of specific compensation. The thought back
of this provision was evidently that there might be, in
a case of partial loss of function, a great disproportion
between the amount of specific compensation provided
and the actual effect of the injury, either from the stand-
point of the employee’s earning capacity or the physical
impairment he suffered. Thus, if a desk worker suffered
such an injury, as did the plaintiff in this case, it might
not at all affect his earning capacity and might consti-
tute a very slight permanent injury from the standpoint
of physical impairment. In other instances the reverse
of this might be true. In the case of a partial loss of
function of one of the members specified in the statute,
the commissioner is called upon, when the stage of
maximum improvement has been reached, to exercise
his sound judgment in deciding whether to award spe-
cific compensation upon the basis fixed in the statute
or to permit the weekly compensation for incapacity
to continue.’’ Osterlund v. State, supra, 129 Conn. 600.
We are not persuaded by the plaintiff’s reliance on
Osterlund. To the extent that the plaintiff argues that
Osterlund reasonably should be interpreted to apply to
the commissioner’s authority to award ongoing tempo-
rary partial disability benefits, it would be difficult to
envision how any such authority could be deemed to
exist after 1993, when, as we have already discussed
in this opinion, our legislature revised § 31-308 to omit
the authority to award such benefits that had been
codified in subsection (d) of the statute.
Last, we note that our interpretation of the statutes
is bolstered by the analysis set forth in prior opinions. In
Rayhall v. Akim Co., supra, 263 Conn. 328, our Supreme
Court addressed the issue of ‘‘whether a claimant who
has sustained injuries to two members of the body
arising from the same incident must receive compensa-
tion for permanent partial disability as soon as the
claimant has reached permanent status with respect to
one member, even if the claimant is temporarily par-
tially incapacitated with respect to the other member.’’
Id., 353–54. In resolving this issue, our Supreme Court
stated that it was ‘‘mindful . . . of two well settled
principles: first, that double compensation is prohibited
under the [act] and, second, that a claimant cannot
receive concurrently a specific indemnity award and
incapacity benefits for the same incident.’’ Id., 354. The
court reasoned that the plaintiff was entitled to receive
incapacity benefits until he had achieved maximum
medical improvement with respect to both legs. Id., 357.
The court stated: ‘‘It is clear that if, as a result of the
condition of his left leg, the plaintiff were temporarily
totally incapacitated, in other words, unable to work
at all, he would be entitled to receive incapacity benefits
regardless of whether his right leg had achieved maxi-
mum medical improvement. . . . We see no logic in
treating the plaintiff’s temporary partial incapacity in
a substantively different manner.’’ (Citation omitted;
emphasis omitted.) Id. We agree with the department
that, although our Supreme Court did not directly
address the issue of whether a claimant could receive
temporary partial disability benefits under § 31-308 (a),
the very fact that the court deemed it necessary to
address the issue before it reflects its adherence to the
principle that the claimant is unable to receive such
benefits upon reaching maximum medical improve-
ment.
Also, as we have stated previously in this opinion, in
Testone, this court, in analyzing a claim that certain
medical reports should not have been admitted in a
workers’ compensation case, noted that ‘‘[t]emporary
partial disability benefits under . . . § 31-308 (a) are
available until the injured worker has reached maxi-
mum medical improvement . . . .’’ (Internal quotation
marks omitted.) Testone v. C. R. Gibson Co., supra, 114
Conn. App. 220. Relying on this principle, the court
concluded under the facts of the case before it that ‘‘the
commissioner was presented with sufficient evidence,
absent the contested reports, to determine that the
plaintiff had reached maximum medical improvement
and was therefore not entitled to disability benefits
under § 31-308 (a).’’ Id.
For the foregoing reasons, we agree with the board’s
interpretation of the authority afforded the commis-
sioner pursuant to § 31-308 (a). Thus, we conclude that
the board properly upheld the commissioner’s approval
of the form 36 that was filed by the defendants, and
the commissioner’s denial of the plaintiff’s claim for
ongoing temporary partial disability benefits pursuant
to § 31-308 (a).
The decision of the Compensation Review Board is
affirmed.
In this opinion the other judges concurred.
1
General Statutes § 31-275d (a) (1), which became effective on October
1, 2021, provides in relevant part that, ‘‘[w]herever the words ‘workers’
compensation commissioner’, ‘compensation commissioner’ or ‘commis-
sioner’ are used to denote a workers’ compensation commissioner in [several
enumerated] sections of the general statutes, [including sections contained
in the Workers’ Compensation Act, § 31-275 et seq.] the words ‘administrative
law judge’ shall be substituted in lieu thereof . . . .’’
In light of the fact that the commissioner rendered his decision, as well
as his ruling on the plaintiff’s motion to correct his decision, prior to October
1, 2021, in the present case, we will refer to the workers’ compensation
commissioner who approved the defendants’ form 36 in this matter as ‘‘the
commissioner.’’
2
‘‘ ‘A [f]orm 36 is a notice to the compensation commissioner and the
[plaintiff] of the intention of the employer and its insurer to discontinue [or
reduce] compensation payments. The filing of this notice and its approval
by the commissioner are required by statute in order properly to discontinue
[or reduce] payments.’ . . . Brinson v. Finlay Bros. Printing Co., 77 Conn.
App. 319, 320 n.1, 823 A.2d 1223 (2003); General Statutes § 31-296 (b).’’
Rivera v. Patient Care of Connecticut, 188 Conn. App. 203, 204 n.1, 204
A.3d 761 (2019).
3
Gallagher-Bassett Services, Inc., is a third-party administrator for the
department. Because Gallagher-Bassett Services, Inc., has not participated
in this appeal, we refer in this opinion to the department as the defendant
and to the department and Gallagher-Bassett Services, Inc., as the defendants
where appropriate.
4
Although the legislature has amended § 31-308 (a) since the underlying
events at issue; see Public Acts 2021, No. 21-196, § 59; that amendment has
no bearing on the merits of this appeal. We therefore refer in this opinion
to the current revision of § 31-308 (a).
5
‘‘The date of maximum medical improvement is the point at which the
permanency of the condition and, hence, the right to permanent disability
benefits, is established, and it is also the point at which the degree of
permanent impairment (loss of, or loss of use of a body part) can be assessed,
which will determine the employer’s payment obligations . . . .’’ (Emphasis
in original.) Brennan v. Waterbury, 331 Conn. 672, 695–96, 207 A.3d 1 (2019);
see also 3 A. Sevarino, Connecticut Workers’ Compensation After Reforms
(7th Ed. 2017) § 6.08, p. 981 (‘‘[a]s a general proposition maximum medical
improvement has been reached when the curative effect of medical treat-
ment has plateaued’’).
6
Permanent partial disability generally has been defined as ‘‘[a] disability
partial in character but permanent in quality resulting from [the] loss or
loss of use of body members or from the partial loss of use of the employee’s
body. . . . Where permanent partial disability is defined in terms of impair-
ment, it is based on physical disability rather than loss of earning capacity,
and higher post-injury wages than pre-injury wages do not bar compensation
for permanent partial disability. The compensation is for permanent loss or
impairment of a bodily function rather than for a wage loss.’’ (Footnotes
omitted.) 2 Modern Workers Compensation (November, 2023) § 200:9, Per-
manent partial disability, generally; see also Churchville v. Bruce R. Daly
Mechanical Contractor, 299 Conn. 185, 192, 8 A.3d 507 (2010) (‘‘[p]ermanent
partial schedule awards are based on medical condition after maximum
improvement has been reached and ignore wage loss entirely’’ (internal
quotation marks omitted)).
7
After the commissioner rendered his decision, the plaintiff filed a motion
to correct the decision. The commissioner granted the motion to correct in
part and thereby rectified two scrivener’s errors that appeared in his original
memorandum of decision.
8
Before the commissioner and, later, the board, the plaintiff relied on the
portion of § 31-308 (b) that provides that, where a permanent partial loss
of the use or function of a member exists, ‘‘the [commissioner] may, in the
[commissioner’s] discretion, in lieu of other compensation, award to the
injured employee the proportion of the sum provided in this subsection
. . . .’’ The plaintiff argued that this language should be interpreted such
that it affords the commissioner the discretion to continue to award tempo-
rary partial disability benefits to a claimant in lieu of permanent partial
disability benefits following maximum medical improvement.
9
Previously in this opinion, we have discussed the material distinction
between incapacity and disability benefits afforded by the act. See
Churchville v. Bruce R. Daly Mechanical Contractor, supra, 299 Conn.
192–95. Our Supreme Court, however, has noted that ‘‘the term ‘ ‘‘disability’’ ’
can be used in the [act] to refer to a permanent impairment of a body part
. . . or to incapacity to work . . . .’’ (Citation omitted.) Pizzuto v. Commis-
sioner of Mental Retardation, 283 Conn. 257, 260 n.2, 927 A.2d 811 (2007).
The court observed that ‘‘[t]he two types of temporary partial [incapacity]
benefits provided within [c]hapter 568 are found at [§] 31-308 [a] and [§]
31-308a. [Section] 31-308 [a] benefits or pre-specific are awarded before the
injured worker is eligible to receive or has been paid his or her [§] 31-308
[b] permanent partial [incapacity] benefits, while [§] 31-308a benefits or
post-specific are awarded after the injured worker’s eligibility to receive [§]
31-308 [b] benefits has been established and exhausted. . . . Indeed, the
alternative maximum duration of benefits under § 31-308a of 520 weeks is
the same maximum duration prescribed for partial incapacity benefits under
§ 31-308 (a).’’ (Internal quotation marks omitted.) Id., 279–80.
Although § 31-308 (a) compensates a claimant’s temporary partial inca-
pacity, or inability to fully perform his or her customary work, courts in
prior appeals typically have referred to the benefit afforded by § 31-308 (a)
as a temporary partial disability benefit. See, e.g., id., 279 (‘‘[a]s for the
two awards of temporary partial disability benefits [one pre-specific indem-
nity, one post-specific indemnity], both legally depend upon the claimant
having suffered a loss in her earning capacity as a result of her compensable
injury’’ (internal quotation marks omitted)); Starks v. University of Connect-
icut, supra, 270 Conn. 29 (referring to retirement credit for employees who
were receiving ‘‘temporary partial disability under § 31-308 (a)’’); Testone
v. C. R. Gibson Co., supra, 114 Conn. App. 220 (‘‘[t]emporary partial disability
benefits under . . . § 31-308 (a) are available until the injured worker has
reached maximum medical improvement’’ (internal quotation marks omit-
ted)); Shepard v. Wethersfield Offset, Inc., 98 Conn. App. 682, 685, 910 A.2d
993 (2006) (referring to plaintiff’s claim that commissioner improperly found
‘‘he was not entitled to temporary partial disability benefits under § 31-308
(a)’’), cert. denied, 281 Conn. 911, 916 A.2d 51 (2007); Shimko v. Ferro
Corp., 40 Conn. App. 409, 411, 671 A.2d 376 (referring to plaintiff’s claim
for ‘‘temporary partial disability benefits under . . . § 31-308 (a)), cert.
denied, 236 Conn. 916, 673 A.2d 1143 (1996). Consistent with this terminol-
ogy, which is reflected in the decisions of the commissioner and the board
in this case, as well as in the parties’ briefs, we will refer to the benefit
afforded by § 31-308 (a) as a temporary partial disability benefit.
10
Additionally, workers who are receiving permanent partial disability
benefits but who cannot gain employment or who earn less wages than they
would have been earning if they had not sustained injury may seek wage
differential benefits, payable at the discretion of the commissioner, pursuant
to § 31-308a.
11
General Statutes § 31-295 (c) provides in relevant part: ‘‘If the employee
is entitled to receive compensation for permanent disability to an injured
member [of the body] in accordance with the provisions of subsection (b)
of section 31-308, the compensation shall be paid to him beginning not later
than thirty days following the date of the maximum improvement of the
member or members and, if the compensation payments are not so paid,
the employer shall, in addition to the compensation rate, pay interest at the
rate of ten per cent per annum on such sum or sums from the date of
maximum improvement. The employer shall ascertain at least monthly
whether employees are entitled to compensation because of a loss of wages
as a result of the injury and, if there is a loss of wages, shall pay the
compensation. . . .’’
12
See General Statutes (Rev. to 1993) § 31-308 (d), which provides: ‘‘In
case of an injury to any portion of the body, referred to in subsection (b)
of this section, or to a phalanx or phalanges of the thumb, finger or toe,
the commissioner may, in his discretion, award compensation for the propor-
tionate loss or loss of use of the member of the body affected by the injury.
Where the injury results in a loss of earnings and it is in the interests of
the injured workman to be paid on that basis notwithstanding that the injured
member may have attained maximum improvement, the commissioner shall,
in his discretion, direct that the claimant be paid partial compensation for
loss of earnings, as provided in this section, if it is in the interest of the
injured employee to be paid the partial compensation even if the injured
member may have attained maximum improvement. Partial compensation
shall be paid under this subsection for as long as the loss of earnings
continues. If the injured employee’s loss of earnings ends, he shall be paid
for permanent injuries in accordance with the provisions of subsection (b)
of this section, minus any payments for partial compensation, for weeks
subsequent to the date on which maximum improvement in the injured
member had been attained. If there is no loss of earnings resulting from
the injury, payments shall be made in accordance with the provisions of
subsection (b) of this section.’’
13
Our Supreme Court has noted that ‘‘the principal thrust of [the] reforms
[undertaken by the legislature in 1993] was to cut costs in order to address
the spiraling expenses required to maintain the system.’’ Rayhall v. Akim Co.,
supra, 263 Conn. 346. ‘‘[T]he legislature reformed the workers’ compensation
laws in 1993 with a fundamental purpose of effect[ing] a dramatic decrease
in the cost of workers’ compensation in Connecticut. . . . To reduce the
cost of workers’ compensation, the legislature introduced a number of sys-
temic changes, including a reduction in the rate of compensation, the elimina-
tion of certain cost-of-living adjustments and a reduction in the number of
compensable injuries.’’ (Citation omitted; internal quotation marks omitted.)
Gartrell v. Dept. of Correction, 259 Conn. 29, 42, 787 A.2d 541 (2002).
14
We note that, in her argument before this court, the plaintiff also focuses
on the following italicized portion of § 31-308 (b): ‘‘[The commissioner] may
. . . in lieu of other compensation, award to the injured employee the
proportion of the sum provided in this subsection for the total loss of, or
the loss of the use of, the member or for incapacity or both that represents
the proportion of total loss or loss of use found to exist . . . .’’ (Empha-
sis added.)
To the extent that the plaintiff argues that the language ‘‘in lieu of other
compensation’’ reflects a legislative intent to authorize an award of tempo-
rary partial disability benefits even after a claimant has achieved maximum
medical improvement, we observe that our Supreme Court has reasoned,
contrary to the plaintiff’s position, that an identical phrase, which appeared
earlier in § 31-308 (b), ‘‘merely was intended to prohibit double payment of
permanency awards and to address our case law precluding a claimant
suffering incapacity following a permanent disability from being able to
thereafter collect total incapacity benefits.’’ Rayhall v. Akim Co., supra, 263
Conn. 356. We are not persuaded that the statutory language on which the
plaintiff relies should be afforded a different interpretation.