CASE NO. 5560 CRB-2-10-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 3, 2011
MOHEGAN SUN CASINO
SAFETY NATIONAL CASUALTY CORPORATION
The claimant was represented by Michael J. Quinn, Esq., Polito & Quinn, LLC, 567 Vauxhall Street Extension, Suite 230, Waterford, CT 06385.
The respondents were represented by Edward W. Gasser, Esq., Gasser Law Firm, LLC, 20 East Main Street, Avon, CT 06001 and Maxine L. Matta, Esq., Murphy & Beane, One Union Place, P.O. Box 590, New London, CT 06320.
This Petition for Review from the May 10, 2010 Finding and Award of the Commissioner acting for the Second District was heard on November 19, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Jack R. Goldberg.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the May 10, 2010 Finding and Award of the Commissioner acting for the Second District. We find no error and accordingly affirm the decision of the trial commissioner.
The trial commissioner made the following factual findings which are pertinent to our review of this matter. On June 15, 2004, the claimant sustained a compensable neck injury arising out of and in the course of his employment which resulted in C5 quadriplegia. The claimant and his wife, Jill, filed lawsuits against six corporate defendants in the Mohegan Gaming Disputes Trial Court. The respondent employer, the Mohegan Sun Casino, and its insurer, Safety National Casualty Corporation, filed an intervening complaint to recover workers’ compensation benefits it had paid or would become obligated to pay the claimant. Following mediation, the claimant and his wife settled their respective claims with four of the third party defendants. The claimant compromised his claims as follows. Brennan Beer Gorman Architects for a net recovery of $1,669,847.39; DeSimone, Chaplin & Dobryn Consulting for a net recovery of $144,514.13; Lehr Associates for a net recovery of $109,847.41; and Perini Corporation for a net recovery of $265,847.44. The claimant executed four separate general releases with respect to each third party defendant.
Jill Lubrano compromised her claims as follows. Brennan Beer Gorman Architects for a net recovery of $1,541,397.59; DeSimone, Chaplin & Dobryn Consulting for a net recovery of $133,397.65; Lehr Associates for a net recovery of $101,397.60; and Perini Corporation for a net recovery of $245,397.62. Jill Lubrano also executed four separate general releases with respect to each third party defendant. After the claimant and his wife settled their civil claims in the Gaming Dispute Tribal Court, respondents Mohegan Sun Casino and Safety National Casualty Corporation waived reimbursement of workers’ compensation benefits already paid and asserted a moratorium against the claimant’s future workers’ compensation benefits in the amount of $2,190,056.37. The parties agreed that the moratorium amount of $2,190,056.37 represented the claimant’s net recovery and the claimant agreed to the moratorium. On July 6, 2009, the respondents withdrew their intervening complaint and requested a determination from the Workers’ Compensation Commission regarding their claim against a portion of Jill Lubrano’s net recovery.1
The trial commissioner determined that the Workers’ Compensation Commission had the jurisdiction to determine the amount of the claimant’s net recovery in order to calculate the credit for unknown future benefits to which the respondents would be entitled. However, the trial commissioner also concluded that the Workers’ Compensation Commission did not have “jurisdiction over and cannot affect Jill Lubrano’s rights with respect to the third party defendants and has no authority to dictate the appropriate terms of settlement.” Findings, ¶ B. Consistent with these findings, the trial commissioner awarded the respondents a moratorium against the claimant’s future workers’ compensation benefits in the amount of $2,190,056.37.
The respondents filed a Motion to Correct which was denied in its entirety, and this appeal followed. On appeal, the respondents contend that the trial commissioner erroneously concluded that the Workers’ Compensation Commission lacked jurisdiction to review the amount of Jill Lubrano’s consortium allocation in order to determine the appropriate moratorium due the respondents. Concomitant with that claim, the respondents argue that the trial commissioner’s failure to find a duty to reallocate a moratorium when a third party settlement is unreasonable and therefore his failure to conduct a review of the reasonableness of the settlement also constituted error. As such, the respondents aver that the moratorium amount of $2,190,056.37 is erroneous. In addition, the respondents maintain that the trial commissioner erred in concluding that the respondents waived reimbursement of workers’ compensation benefits they had paid. Finally, the respondents contend that the trial commissioner’s denial of their Motion to Correct constituted error.
The standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions is well-settled. “The trial commissioner’s factual findings and conclusions must stand unless they are without evidence, contrary to law or based on unreasonable or impermissible factual inferences.” Russo v. Hartford, 4769 CRB-1-04-1 (December 15, 2004), citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Moreover, “[a]s with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Burton v. Mottolese, 267 Conn. 1, 54 (2003). “This presumption, however, can be challenged by the argument that the trial commissioner did not properly apply the law or has reached a finding of fact inconsistent with the evidence presented at the formal hearing.” Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007).
Prior to assessing the merits of the respondents’ argument, it is helpful to review the salient provisions of § 31-293 C.G.S. which provide the statutory underpinnings for the issue at bar.2 The statute essentially provides the framework by which a claimant and/or an employer of a claimant may bring an independent action against a third party who may bear liability for the claimant’s injuries. The statute also permits an employer to either intervene in any action filed by the claimant or, in the alternative, to file with the claimant or other filing party a notice of lien against the judgment. The statute specifically states that the claim of the employer “shall take precedence over that of the injured employee in the proceeds of the recovery” and that “[n]o compromise with the person by either the employer or the employee shall be binding upon or affect the rights of the other, unless assented to by him.”3 Section 31-293(a) C.G.S.
In addition to reviewing the provisions of the applicable statute it is also helpful to distinguish between the benefits awarded pursuant to the Workers’ Compensation Act and those obtained by a claimant and/or a spouse in a third party suit. In addition to providing payment for medical treatment, “[a]n award under the act ordinarily compensates an employee for the impairment to his wage earning capacity resulting from his injury . Unlike a tort recovery, such an award offers little or no redress to the employee for the physical injury itself, the loss of functional ability or the pain and suffering accompanying the injury.” Enquist v. General Datacom, 218 Conn. 19, 38-39 (1991). (Glass, J. and Hull, J., dissenting). Thus,
[a]n employee does not bring suit against a third party tortfeasor to ensure that his employer is reimbursed for his past or future compensation outlays. He sues the tortfeasor, rather, to collect damages to which he may be personally entitled under a common law tort theory of recovery, and which are unobtainable under the Workers’ Compensation Act (act).
Id., at 38.
A claim for loss of consortium may be further distinguished, as it “compensates a spouse for ‘intangible’ components including the ‘constellation of companionship, dependence, reliance, affection, sharing and aid which are legally recognizable, protected rights arising out of the civil contract of marriage.’. These intangible components are not compensated for under the Workers’ Compensation Act.” (Internal citation omitted.) Lesco v. Glass Crafters, 3915 CRB-3-98-10 (January 19, 2000), quoting Shegog v. Zabrecky, 36 Conn. App. 737, 751 (1995). Finally, “[s]ince ‘loss of consortium is incapable of precise measurement, considerable latitude is allowed a jury in estimating damages.’” Id.
In the matter at bar, the respondents’ contend that the trial commissioner erroneously concluded that he lacked the jurisdiction to review the reasonableness of the division of the settlement funds between the claimant and his wife and, by extension, erred in refusing to re-allocate the settlement funds in a manner which “should inure to the benefit of the Respondent in terms of a moratorium.” Appellants’ Brief, p. 5. The respondents aver that “[t]o allow the Commissioner’s findings to stand would not only allow, but encourage claimants to craft settlements to an employer’s detriment in violation of a stated purpose of the Act. namely to allow employer’s [sic] to recover their full share of any third-party recovery.” Id., at 4. In addition, affirming the determination that the trier lacked the jurisdiction to review the reasonableness of the loss of consortium allocation “creates a perverse incentive which would allow a claimant and tortfeasor the unfettered right to divide settlement proceeds between the employee and the spouse in a manner which would avoid a lengthy moratorium and disallow the employer the benefit of a reasonable credit for benefits paid.” Id., at 16-17.
Although the respondents argue that Connecticut case law as well as case law from other jurisdictions “supports the position that the Workers’ Compensation Commission must review the [consortium] allocation in order to ensure that the employer’s rights are protected,” id., at 5, our review of recent Connecticut case law leads us to exactly the opposite conclusion. In Soracco v. Williams Scotsman, Inc., 292 Conn. 86 (2009), our Supreme Court had opportunity to review an employer’s challenge to the settlement between a third party tortfeasor and a claimant, which settlement included a recovery for the claimant’s spouse for a loss of consortium claim. The settlement proceeds were equally divided between the claims of the injured employee and his spouse. The employer requested a hearing to assess the reasonableness of the apportionment, and the judge presiding over the matter concluded that the apportionment was reasonable. The case was appealed to the Appellate Court, and the Supreme Court transferred the appeal to itself pursuant to § 51-199(c) C.G.S. and Practice Book § 65-1.
The court began its analysis with a review of the principles of standing, noting at the outset that “a court does not have subject matter jurisdiction over claims brought by persons who do not have standing .” (Citation omitted.. Id., at 90, quoting Orsi v. Senatore, 230 Conn. 459, 470 (1994). Moreover, “[i]t is axiomatic that aggrievement is a basic requirement of standing, just as standing is a fundamental requirement of jurisdiction.” Id., at 91. The court went on to distinguish between classical aggrievement, which is determined based on “judicial analysis of the particular facts of the case,” id., at 92, quoting Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 156 (2008), and statutory aggrievement, in which “particular legislation grants standing to those who claim injury to an interest protected by that legislation.” (Internal quotation marks omitted.. Id., at 92, quoting Pond View, supra. In light of these principles, the court stated that,
in order to claim standing to challenge the allocation of the proceeds of the settlement between the plaintiffs and the defendant, [the employer] must show that it has suffered statutory aggrievement. In other words, [the employer] must demonstrate that the allocation of the settlement proceeds caused an ‘injury to an interest protected by [§ 31-293(a)].’
(Internal quotation marks omitted.. Id., at 96, quoting Pond View, supra.
Following an extensive discussion of the provisions of § 31-293(a) C.G.S., the court stated that the employer’s “rights in this case are defined entirely by § 31-293(a),” id., and concluded that the statute
does not confer standing on an employer seeking to challenge the allocation of the proceeds of a settlement reached between its injured employee and the tortfeasor. Indeed, the statute protects employers from unilateral settlement agreements by preserving their rights in the face of such agreements and by providing that they cannot be bound by them absent their assent. Section 31-293 does not, however, allow an employer to interfere with a settlement reached between its employee and the tortfeasor, nor does it provide courts with the authority to dictate the appropriate terms of such a settlement.
Id., at 96-97.
The court went on to remark that, “[w]e fail to discern, and [the employer] has offered no explanation of, what statutory right has been impinged on by the settlement between the plaintiffs and the defendant.” Id., at 97. Noting that § 31-293(a) C.G.S. specifically contemplates that parties to an action will enter into such agreements, the court observed that “[t]herein lies the crux of the problem. [the employer] simply cannot be aggrieved by a settlement to which it is not bound, and which does not interfere with its rights in the absence of its consent.” Id. The court then stated that,
this appeal represents nothing more than a challenge to the voluntary and consensual division of the proceeds of a settlement reached by the plaintiffs and the defendant . Because we conclude that none of [the employer’s] statutory interests was affected by the settlement between the plaintiffs and the defendant, we further conclude that it lacked standing to challenge the terms of that settlement, and, therefore, the trial court was without jurisdiction to consider [the employer’s] challenge to the allocation of the proceeds of that settlement.
Id., at 98.
The respondents contend that the most logical inference which may be drawn from the Soracco court’s determination that a judge of the Superior Court lacked the jurisdiction to review the terms of the settlement is that the court in actuality conferred such authority upon the Workers’ Compensation Commission because it becomes “the only appropriate entity to review settlement allocations.” Appellants’ Brief, p. 9. “It is noteworthy that Soracco does not hold that no entity has jurisdiction to review such settlements. It simply held that the jurisdiction to review the settlement did not belong to the Superior Court, as it could not enter an order that affected the employer’s right to recovery.” Id. We are not so persuaded.
The respondents point to several Connecticut appellate cases in support of their interpretation of Soracco. The first case, Love v. J. P. Stevens and Company, Inc., 218 Conn. 46 (1991), is actually a companion case to Enquist, supra. In Enquist, our Supreme Court identified as the principal issue “whether an employer, who has properly intervened in an action by an injured employer against a third party, may set off future compensation claims against the net proceeds that the employee thereafter recovers from the third party tortfeasor.” Id., at 20-21. The court, noting, as mentioned previously herein, that § 31-293(a) provides that the claim of the employer shall take precedence over that of the employee, and mindful of the well-settled prohibition against double recovery in the workers’ compensation forum, concluded that such a set-off on the part of the employer was permissible. In Love, supra, our Supreme Court reaffirmed its holding in Enquist and also held that the trial commissioner possessed the requisite authority to calculate the amount of the credit due the employer, stating, “although § 31-293(a) does not specifically state that the commissioner has the responsibility to calculate the credit for unknown future benefits, the act, in general, delegates this responsibility to the commissioner and, in the absence of express language to the contrary, we decline to hold otherwise.” Love, supra, at 50-51.
The respondents also rely on Schiano v. Bliss Exterminating Co., 57 Conn. App. 406 (2000), in which the claimant and his wife settled with a third party tortfeasor for $70,000.00 and entered into an agreement with the Second Injury Fund entitling the fund to a $30,000.00 moratorium.4 A dispute ultimately arose between the parties regarding which payments should be applied to the moratorium and the trial commissioner eventually determined that the moratorium was in lieu of 108 weeks of permanent partial disability payments. The claimant appealed, and this board concluded that the trier had correctly characterized the nature of the moratorium but remanded the matter because the trier had failed to make a finding regarding how much of the settlement with the tortfeasor had been paid in satisfaction of the spouse’s loss of consortium claim. On remand, the trier concluded, following a review of additional evidence, that none of the settlement monies should be allocated to the loss of consortium claim.5 The claimant appealed, contending that the trial commissioner’s authority “does not extend to matters litigated in the Superior Court, to contractual agreements between the plaintiff and a third party or to his wife’s loss of consortium claim.” Id., at 412.
The Appellate Court disagreed, holding that a trial commissioner,
[has] not only the authority but also the responsibility to review the third party settlement to determine how to resolve the fund’s claim and the settlement’s effect on future compensation benefits to which the plaintiff was entitled. To fulfill his responsibility, the commissioner had to know the value of the plaintiff’s portion of the settlement and the terms to which the plaintiff and the fund had agreed.
Id., at 413.
However, the court also went on to remark,
[a]lthough it is true that a commissioner may not dictate the terms or the amount of a loss of consortium claim, in this instance it was necessary for the commissioner to know the amount of the settlement paid in satisfaction of the wife’s claim to determine the amount of the plaintiff’s recovery. In making the determination, the commissioner did not assume jurisdiction over or affect the wife’s rights with respect to the third party. The commissioner merely used the information to allocate the plaintiff’s portion of the settlement to the moratorium.6
(Emphasis added.) Id., at 412-413.
Having reviewed Enquist, Love, and Schiano, we do not concur with the respondents’ interpretation of these cases vis-à-vis Soracco. The respondents aver that “[i]f the intent of the Soracco Court was to hold that no entity had jurisdiction to review such settlements, it would have reversed the holdings in Schiano or Love or been critical of their reasoning.” Appellants’ Brief, p. 9. We disagree. Both Enquist and Love stand for the proposition that a trial commissioner is endowed with the authority to calculate the amount of the set-off due an employer following the claimant’s settlement with a third party tortfeasor. In neither case is a spousal consortium claim even implicated. Schiano tells us that in order for a trial commissioner to appropriately exercise his authority in crafting a moratorium award which accurately reflects the financial agreements between the parties, it is necessary that he be made aware of the amount of a claimant’s third party settlement which has been allocated to a spousal consortium claim. However, we decline to equate the necessity to be made aware of the amount of the allocation with the ability to influence the terms of such a settlement, especially in light of the specific language in Schiano forbidding such interference on the part of the trier.
Thus, it may be reasonably inferred that the Soracco court did not feel the need to reverse Enquist, Love or Schiano because the holdings in those cases are easily read consistently with Soracco. Moreover, we disagree with the respondents’ assertion that Soracco stands for the proposition that the trial commissioner “must have jurisdiction to make a determination with respect to the appropriateness of a settlement” Appellants’ Brief, p. 10, because the “courts”, i.e., trial courts, lack the jurisdiction to do so. We decline to read Soracco so narrowly in light of the Supreme Court’s lengthy exposition regarding the role standing and aggrievement play when considering a challenge to a consortium allocation. We simply do not believe that the jurisdictional requirements outlined by the Supreme Court in Soracco operate any less rigorously in the workers’ compensation forum than they do in Superior Court. In light of the foregoing, we therefore affirm the trial commissioner’s conclusion that he lacked the jurisdiction to review the terms of the settlement between the claimant’s spouse and the third party tortfeasor.
Having made this determination, it would thus logically follow that we find the trial commissioner also lacked the authority either to make a determination as to the “reasonableness” of the settlement allocation or to re-allocate the settlement monies in a manner more favorable to the employer.7 As such, the respondents’ presentation of extra-jurisdictional evidence in support of their claim that the apportionment reached in the instant matter was improper is unavailing.8 Moreover, we are unpersuaded by the respondents’ assertion that “the Commission has a duty to prevent abuses in allocation wherein a claimant and his spouse can divide the settlement proceeds in such a way which would award a large portion of the funds to the spouse’s consortium claim in an attempt to evade the application of a lengthy moratorium.” Appellants’ Brief, p. 19. While there is no question that § 31-278 C.G.S. affords the trial commissioner broad statutory authority relative to his ability to assess the weight and credibility of the evidence presented by the parties, such authority obviously does not extend to actions which are in direct contravention to binding precedent.9 As such, we decline to find the trial commissioner in any manner breached his statutory duty relative to § 31-278 C.G.S.10
As we have discussed, § 31-293(a) C.G.S. sets out the various parameters by which employees and employers may seek reimbursement from a third party tortfeasor. Thus,
[b]y allowing either an employer or an employee to bring an action, the law seeks to vindicate both the employee’s interest in receiving the full scope of tort damages that remain uncompensated by a workers’ compensation award and the employer’s interest in being reimbursed for payments made because of the third party’s malfeasance.
Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 488 (1987).
The statute “thus strives to balance and protect the interests of all the parties involved in a third party workers’ compensation action.” Soracco, supra, at 95. “Significantly, however, the statute does not provide a mechanism for the nonassenting party to challenge a settlement between the other party and the tortfeasor.” (Emphasis added.. Id., at 94, citing Skitromo, supra, at 489.
In light of this statutory constraint, it is therefore incumbent upon all parties involved in a third party action to exercise their rights under the statute to the fullest extent possible. In the instant matter, the respondents voluntarily elected to withdraw their intervening complaint in Superior Court and remove the matter to the Workers’ Compensation Commission.11 Moreover, the complaint was withdrawn on July 6, 2009, almost one month after the issuance of Soracco, supra, on June 9, 2009. The respondents have explained that,
[t]he withdrawal followed Soracco, supra, finding that the Superior Court had no standing to approve a hand-crafted settlement between the injured party, a spouse, and the tortfeasor. Because there was no jurisdiction for a Superior Court, and therefore a Tribal Court, to approve or disprove a settlement, the intervention served no purpose at that point and could have jeopardized the claimant’s recovery.
Appellants’ Brief, p. 24.
In light of the foregoing statement, it cannot be denied that the respondents voluntarily effected the withdrawal of their intervening action. This board is not empowered to “undo” trial maneuvers which do not ultimately result in the benefit sought by the maneuvering party.
Although one purpose of 31-293 is to avoid double recovery, it does not protect those who are less than vigilant in safeguarding their own legal rights. The imperfection is not in the statute which provides a simple means of effectuating the rights created, but in those who fail to avail themselves of its benefits for no justifiable reason.
Norwalk v. Van Dyke, 33 Conn. Sup. 661, 667 (1976), cert. denied, 172 Conn. 681 (1976).
Thus, as the claimant accurately points out, “[t]he Appellant cannot now attempt to profit from a decision it made fully cognizant of all of the relevant facts and the law.” Appellees’ Brief, p. 6.
Moreover, Soracco specifically contemplates the possibility that the continued prosecution of an intervening complaint might affect the tortfeasor’s trial strategies.12 As the court remarked,
if the employee chooses to settle his personal injury claim against the tortfeasor without the assent of the employer, the employer’s right to recover on its lien and to pursue an independent action against the tortfeasor to recover any deficiency on that lien is unaffected. This means, of course, that when the employee and the tortfeasor settle the matter for less than the amount of the lien, the tortfeasor must weigh the risk of further litigation and exposure to greater liability that may result from a settlement reached without the intervening employer’s assent.
Soracco, supra, at 94, citing Skitromo, supra.
In light of the Soracco court’s detailed recitation of the array of options afforded to the various parties involved in a third party cause of action by the provisions of § 31-293(a) C.G.S., it is difficult to perceive the injustice worked by holding as we do. We might have a greater concern as to the alleged inequitable result achieved herein if the underlying facts differed from those presented. For instance, had the respondents sought to realize a credit for workers’ compensation benefits brought by a claimant’s spouse pursuant to § 31-306 C.G.S., then we might have been presented with a scenario in which the alleged unfairness of the Soracco holding might be more apparent.13 However, that is not the factual predicate presented. Furthermore, we cannot say, even if such circumstances existed, that the respondent was without the legal means to protect its interest in either recoupment or the existence of moratorium.
We do acknowledge the respondents’ belief that “[w]ithout any course of review for third-party settlements, the likelihood of mischief in the appropriation of settlement funds between a claimant and a spouse is increased.” Appellants’ Brief, p. 21. However, while this board may on occasion be uncomfortably cognizant of the limitations of our statutory authority, we have no alternative but to operate within them, given that the Workers’ Compensation Commission is a creature of statute and its judicial authority is delineated by the Workers’ Compensation Act. “It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation.” Castro v. Viera, 207 Conn. 420, 427-428 (1988), quoting Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565 (1963).
Moreover, as the Soracco court indicated, the potential for harm is mitigated if the respondents utilize the appropriate provisions of § 31-293(a) C.G.S. which permit a respondent to intervene or bring its own cause of action against the tortfeasor. If the respondents allege “that the statute in its present form is apt to work an injustice, that is something for the legislature to cure. It does not require modification of the terms of the statute by the courts for the sake of accomplishing what might appear to be justice.” General Tires, Inc., v. United Aircraft Corporation, 143 Conn. 191, 196 (1956).
The respondents also contend that the trial commissioner erroneously determined that the respondents waived reimbursement of workers’ compensation benefits paid. The respondents claim that “[u]pon settlement of the Lubrano’s civil claims in the Gaming Disputes Trial Court, Respondents specified they were not waiving any of their rights to reimbursement under C.G.S. § 31-293 et. seq.” Appellants’ Brief, p. 24. We cannot find, and the respondents have not provided, any evidentiary support for this assertion. We do, however, have the benefit of the transcript from the formal hearing of March 31, 2010 at which the following colloquy occurred:
Commissioner Doyle. Since our last session I had gone all [sic] the material that had previously been submitted. I wanted to clarify a few things. And the first thing that I wanted to clarify was just that the claim that’s before me by the casino is just with respect to a moratorium and there’s no claim for any kind of repayment of any monies that have been paid out, correct?
Ms. Matta. That’s correct.
Transcript, p. 2.
There is no error.
Finally, the respondents claim as error the trial commissioner’s denial of their Motion to Correct. Our review of the proposed corrections indicates that the respondents are merely reiterating the arguments they made at trial which ultimately approved unavailing. As such, we find no error in the trier’s decision to deny the respondents’ Motion to Correct. D’Amico v. State/Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003).
Having found no error, the May 10, 2010 Finding and Award of the Commissioner acting for the Second District is hereby affirmed.
Commissioners Nancy E. Salerno and Jack R. Goldberg concur in this opinion.
1 It should be noted that the Mohegan Tribal Gaming Authority terminated its certificate of self insurance effective September 1, 2004 and removed workers’ compensation claims against the Gaming Authority to the Mohegan Tribal Workers’ Compensation Commission. BACK TO TEXT
2 Section 31-293(a) C.G.S. (Rev. to 2003) states. “When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31-284, a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against such person, but the injured employee may proceed at law against such person to recover damages for the injury; and any employer or the custodian of the Second Injury Fund, having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. If the employee, the employer or the custodian of the Second Injury Fund brings an action against such person, he shall immediately notify the others, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the others may join as parties plaintiff in the action within thirty days after such notification, and, if the others fail to join as parties plaintiff, their right of action against such person shall abate. In any case in which an employee brings an action against a party other than an employer who failed to comply with the requirements of subsection (b) of section 31-284, in accordance with the provisions of this section, and the employer is a party defendant in the action, the employer may join as a party plaintiff in the action. The bringing of any action against an employer shall not constitute notice to the employer within the meaning of this section. If the employer and the employee join as parties plaintiff in the action and any damages are recovered, the damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of the recovery, after the deduction of reasonable and necessary expenditures, including attorneys’ fees, incurred by the employee in effecting the recovery. The rendition of a judgment in favor of the employee or the employer against the party shall not terminate the employer’s obligation to make further compensation which the commissioner thereafter deems payable to the injured employee. If the damages, after deducting the employee’s expenses as provided in this subsection, are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee. No compromise with the person by either the employer or the employee shall be binding upon or affect the rights of the other, unless assented to by him. For the purposes of this section, the claim of the employer 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 and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of the injury. The word “compensation”, as used in this section, shall be construed to include incapacity payments to an injured employee, payments to the dependents of a deceased employee, sums paid out for surgical, medical and hospital services to an injured employee, the burial fee provided by subdivision (1) of subsection (a) of section 31-306, payments made under the provisions of sections 31-312 and 31-313, and payments made under the provisions of section 31-284b in the case of an action brought under this section by the employer or an action brought under this section by the employee in which the employee has alleged and been awarded such payments as damages. Each employee who brings an action against a party in accordance with the provisions of this subsection shall include in his complaint (A) the amount of any compensation paid by the employer or the Second Injury Fund on account of the injury which is the subject of the suit and (B) the amount equal to the present worth of any probable future payments which the employer or the Second Injury Fund has, by award, become obligated to pay on account of the injury. Notwithstanding the provisions of this subsection, when any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31-284, a legal liability to pay damages for the injury and the injured employee has received compensation for the injury from such employer, its workers’ compensation insurance carrier or the Second Injury Fund pursuant to the provisions of this chapter, the employer, insurance carrier or Second Injury Fund shall have a lien upon any judgment received by the employee against the party or any settlement received by the employee from the party, provided the employer, insurance carrier or Second Injury Fund shall give written notice of the lien to the party prior to such judgment or settlement. BACK TO TEXT
3 The respondents filed a reply brief in which they argued, inter alia, that Cruz v. Montanez, 294 Conn. 357 (2009), supports their contention “that the Courts and legislature recognize the preferred status that employers are given under § 31-293.” Appellants’ Reply Brief, p. 12. Our review of Cruz indicates that the Supreme Court found unavailing the claimant’s attempt to differentiate between economic and non-economic damages in order to limit the extent of employer’s recovery because § 31-293(a) C.G.S. states that employer’s claim may be satisfied from “any” damages the claimant recovers from the third party tortfeasor. As such, we do not find Cruz particularly pertinent to the matter at bar. We do note that in its discussion of another claim of error propounded by the Cruz claimant, the court stated that “when [the employer] intervened as plaintiff in Cruz’ action, it was not required to present a separate case to the jury. An employer will need to present such evidence only when the employee does not assert a claim against the third party tortfeasor; under such circumstances, the employer can recoup its workers’ compensation payments only by bringing its own independent action against the tortfeasor.” Cruz, supra, at 379. BACK TO TEXT
4 The agreement was apparently never presented to the trial commissioner and was not brought to his attention until the claimant sought additional compensation. BACK TO TEXT
5 The trier heard testimony from counsel for both sides and reviewed correspondence exchanged between the attorneys. BACK TO TEXT
6 It should be noted that as of the date of the Schiano claimant’s injury on February 25, 1986, § 31-293 C.G.S. did not include the final provision relative to the employer’s ability to file a notice of lien. See fn. 1, supra. The lien language was added to the statute pursuant to P.A. 93-228 which became effective on July 1, 1993. BACK TO TEXT
7 Although the respondents decry the “minimal” amount of testimony at trial regarding the basis for the consortium allocation, our review of the file indicates the formal hearing of January 15, 2010 produced approximately twenty-five pages of claimant testimony relative to this issue. BACK TO TEXT
8 The respondents’ reliance on Lesco v. Glass Crafters, 3915 CRB-3-98-10 (January 19, 2000) in arguing this claim of error is misplaced. We concede that certain passages in Lesco may lend themselves to the interpretation that this board found the trial commissioner does possess the authority to review the loss-of-consortium allocation of third party claims. However, we would simply note that Lesco was decided in January 2000, long before this board had the benefit of the Appellate Court’s findings in Schiano or the Supreme Court’s reasoning in Soracco. As such, any language contained in the Lesco opinion which may be reasonably inferred to conflict with Soracco is hereby reversed. BACK TO TEXT
9 § 31-278 C.G.S. (Rev. to 2003) states, in pertinent part. “Each commissioner shall, for the purposes of this chapter, have power to summon and examine under oath such witnesses, and may direct the production of, and examine or cause to be produced or examined, such books, records, vouchers, memoranda, documents, letters, contracts or other papers in relation to any matter at issue as he may find proper.... He shall have power to certify to official acts and shall have all powers necessary to enable him to perform the duties imposed upon him by the provisions of this chapter. Each commissioner shall hear all claims and questions arising under this chapter in the district to which the commissioner is assigned.... BACK TO TEXT
10 Given that the parties stipulated that the amount of the claimant’s net recovery from the third party settlement was $2,190,056.37, we find no error in the trier’s determination that the respondents’ moratorium was also $2,190,056.37. Findings, ¶ C. BACK TO TEXT
11 We note that the record reflects considerable dissension between the parties relative to the circumstances surrounding the respondents’ withdrawal of their intervening complaint. BACK TO TEXT
12 Apropos of this observation, we note that on May 24, 2011, the Appellate Court released Soracco v. Williams Scotsman, 128 Conn. App. 818 (2011) in which the court dismissed an appeal brought by the plaintiffs and the third party defendant challenging the trial court’s denial of their joint motion for judgment. The appellants argued, inter alia, that the denial was improper because the settlement agreement was “clear and unambiguous.” Id., at 821. The Appellate Court upheld the dismissal, noting that the trial judge had determined that the agreement in question was not in fact clear and unambiguous given that the respondent employer had indicated it would not be bound by “any global settlement until and unless it was satisfied with the amount of money that it would recover....” Id., at 824. Of particular significance to our review of the matter at bar is the Soracco employer’s exercise of its statutory authority pursuant to § 31-293(a) C.G.S. as reflected in the final paragraph of the decision wherein the court observed that the trial judge had “concluded that the plaintiffs and the defendant are still free to settle according to their own agreement but that the case against the defendant by [the employer] would continue.” (Emphasis added). Id., at 829. BACK TO TEXT
13 Section 31-306 C.G.S. (Rev. to 2003) states, in pertinent part. (a) Compensation shall be paid to dependents on account of death resulting from an accident arising out of and in the course of employment or from an occupational disease as follows:
(1) Four thousand dollars shall be paid for burial expenses in any case in which the employee died on or after October 1, 1988. If there is no one wholly or partially dependent upon the deceased employee, the burial expenses of four thousand dollars shall be paid to the person who assumes the responsibility of paying the funeral expenses.
(2) To those wholly dependent upon the deceased employee at the date of the deceased employee’s injury, a weekly compensation equal to seventy-five percent of the average weekly earnings of the deceased calculated pursuant to section 31-310, 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 pursuant to said section 31-310, as of the date of the injury but not more than the maximum weekly compensation rate set forth in section 31-309 for the year in which the injury occurred or less than twenty dollars weekly.... BACK TO TEXT