Esposito v. Stamford (Dissent) ( 2024 )

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2 ,0 0 Conn. 0Esposito v. Stamford
ECKER, J., with whom McDONALD and ALEXAN-
DER, Js., join, dissenting. Properly construing and
applying Connecticut workers’ compensation law can
be a challenge due to the labyrinthine statutes and intri-
cate case law that has attached to the statutory frame-
work over the years. The present case, however, can be
resolved by straightforward application of the relevant
statutes and the basic principles underlying them. In my
view, the majority’s analysis departs from the applicable
statutory directives, overlooking the operative princi-
ples established by those statutes, and misinterpreting
the pertinent case law, especially our recent decision
in Brennan v. Waterbury, 331 Conn. 672, 207 A.3d 1(2019). I respectfully dissent.
I
The primary issue raised in this appeal is whether the
decedent, Robert Esposito,1 was entitled to permanent
disability benefits under General Statutes § 31-308 (b)
at the time of his death in 2020.2 On March 22, 2022,
following a formal hearing, the administrative law judge
for the Seventh District of the Workers’ Compensation
Commission found that the decedent’s loss of vision
in both eyes had become a permanent condition and,
1
As the majority notes, ‘‘[t]he decedent was the original plaintiff in this
matter before the Workers’ Compensation Commission. After his death,
Roseann Esposito, his surviving spouse, was added as a plaintiff.’’ Footnote
1 of the majority opinion. Like the majority, I refer to Roseann Esposito as
the plaintiff and Robert Esposito as the decedent for the sake of simplicity.
2
Two additional issues arise if the decedent was entitled to permanent
disability benefits under § 31-308 (b): (1) whether the plaintiff, Roseann
Esposito, was entitled to receive those benefits as the decedent’s surviving
spouse at the time of his death, and (2) whether the defendants—the city
of Stamford and its third-party administrator for workers’ compensation
benefits, PMA Management Corporation of New England—were entitled to
a credit against any such permanent disability award for incapacity payments
made to the decedent pursuant to General Statutes § 31-307 (c) from the
date that his injuries became permanent in 1998 until the date of his death
in 2020. See footnote 17 of this opinion.
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therefore, that his entitlement to permanent disability
benefits pursuant to § 31-308 (b) had vested no later
than June 9, 1998.3 The administrative law judge also
concluded, however, that the defendants—the city of
Stamford (city) and its third-party administrator for
workers’ compensation benefits, PMA Management
Corporation of New England—were entitled to an off-
setting credit for total incapacity benefits paid to the
decedent during his lifetime under General Statutes
§ 31-307 (c), with the net result that no actual benefits
were payable because the amount of the credit exceeded
the amount of any benefits due. The Compensation
Review Board (board) upheld the award but did so on
the alternative ground that the decedent’s ‘‘inchoate
entitlement to 235 weeks of permanency benefits for
each eye’’ never vested because the record contained
no proof of an ‘‘assignment or award of a permanent
partial disability rating or an agreement between the
parties’’ establishing such a rating. (Internal quotation
marks omitted.)
Four foundational points require reversal of the board’s
decision.
First, it is axiomatic that the two categories of work-
ers’ compensation benefits under consideration serve
entirely different purposes, and, as such, both types of
benefits are payable for the same injury to the same
3
I emphasize at the outset that the award under review in this case is not
the award of permanent incapacity benefits made by Workers’ Compensation
Commissioner Leonard S. Paoletta on June 9, 1998. Rather, the award at
issue is the award of permanent disability benefits made by Administrative
Law Judge Randy L. Cohen on March 22, 2022.
Like the majority, I refer to Commissioner Paoletta as the commissioner
and to Administrative Law Judge Cohen as the administrative law judge, in
accordance with the titles given to administrative adjudicators at the time
Commissioner Paoletta and Administrative Law Judge Cohen rendered their
respective findings and awards. See footnote 3 of the majority opinion; see
also General Statutes § 31-275d.
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worker under our workers’ compensation laws.4 Sec-
tion 31-307 benefits, properly known as total incapacity
benefits, provide compensation for wages lost when an
employee is incapacitated by a work related injury to
a degree that the employee is completely unable to
work as a result. See General Statutes § 31-307 (a) (‘‘[i]f
any injury for which compensation is provided under
the provisions of this chapter results in total incapacity
to work, the injured employee shall be paid a weekly
compensation equal to seventy-five per cent of the
injured employee’s average weekly earnings as of the
date of the injury’’);5 see also Churchville v. Bruce R.
Daly Mechanical Contractor, 299 Conn. 185, 193, 8 A.3d
507 (2010) (noting that ‘‘[i]ncapacity, as that term is
used under the Workers’ Compensation Act, means
incapacity to work, as distinguished from the loss or
loss of use of a member of the body,’’ and that ‘‘[e]ntitle-
ment to incapacity benefits depends on the employee’s
capacity to work’’). In this case, the decedent, during
his lifetime, was paid total incapacity benefits under
subsection (c) of § 31-307, which deems six particular
injuries—including the injury sustained by the decedent
in this case, namely, the ‘‘[t]otal and permanent loss of
sight of both eyes, or the reduction to one-tenth or
4
As we have pointed out previously, our past cases sometimes have
used imprecise language, which has generated confusion. See Brennan v.
Waterbury, supra, 331 Conn. 695 n.17 (‘‘[a]n unfortunate feature of our
workers’ compensation jurisprudence is a lack of consistency in terminol-
ogy’’). When we use terms like ‘‘disability,’’ ‘‘incapacity,’’ ‘‘vested,’’ ‘‘matured,’’
‘‘owed,’’ or ‘‘due’’ imprecisely in these cases, we invite confusion. Courts,
including this one, must take special care to adhere to uniform terminology
if we hope to achieve and maintain doctrinal clarity.
5
The Workers’ Compensation Act also provides benefits for partial inca-
pacity caused by a work related injury. See General Statutes § 31-308 (a)
(‘‘[i]f 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 compensation equal to seventy-five per cent of the difference
between the wages currently earned by an employee in a position compara-
ble to the position held by the injured employee before his injury’’). Section
31-308 (a) benefits were not sought or awarded in this case.
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Esposito v. Stamford
less of normal vision’’—to be injuries that ‘‘shall be
considered as causing total incapacity’’ and which man-
dates that ‘‘compensation shall be paid accordingly
. . . .’’ General Statutes § 31-307 (c) (1).
Section 31-308 (b) benefits, unlike total incapacity
benefits, do not compensate the claimant for loss of
earnings. Instead, § 31-308 (b) benefits, properly known
as disability benefits, compensate an injured employee
for the loss (or loss of use) of a body part or organ,6
and are paid in recognition of the fact that a loss of
earnings is not the only harm sustained by a worker
6
Section 31-308 (b) provides benefits for the total or partial disability of
a lengthy list of particular body parts and bodily functions (which the statute
refers to as ‘‘the member or organ’’). Total disability benefits are awarded
for the loss of (or ‘‘the complete and permanent loss of use of’’) the injured
member or organ and are calculated based on the number of weeks assigned
by the statute to that particular member or organ. General Statutes § 31-
308 (b). To use as an example the injury sustained by the decedent in the
present case, the version of § 31-308 (b) in effect at the time of the injury
to the decedent in 1982 provided that the ‘‘complete and permanent loss of
the sight of one eye, or the reduction in one eye to one-tenth or less of
normal vision’’ entitled the claimant to 235 weeks of compensation. General
Statutes (Rev. to 1981) § 31-308 (b) (7). A claimant with a permanent total
disability under this criterion is eligible to receive total disability payments
equal to 235 multiplied by the claimant’s weekly rate of compensation, which
the statute provides is ‘‘sixty-six and two-thirds per cent of the average
weekly earnings of the injured employee,’’ with specified adjustments. Gen-
eral Statutes (Rev. to 1981) § 31-308 (b). This explains why the administrative
law judge in the present case concluded that, ‘‘pursuant to § 31-308 (b) and
the permanency schedule that was in effect on the date of [the decedent’s]
injury,’’ the decedent ‘‘was entitled to an award of 235 weeks for each eye.’’
In addition to creating an entitlement to mandatory benefits for permanent
total disability, § 31-308 (b) also gives the administrative law judge the discretion
to award compensation to an injured employee who suffers only ‘‘a perma-
nent partial loss of the use of a member,’’ or whose ‘‘injury results in a
permanent partial loss of function . . . .’’ The amount of permanent partial
disability benefits is calculated by multiplying the award for total disability
by the percentage of disability assigned or awarded. For example, if the
claimant has lost the use of 50 percent of one eye, the administrative law
judge would have been authorized to award the claimant 117.5 weeks of
partial disability benefits (50 percent of 235 weeks). The injury in the present
case involves a total disability; partial disability benefits were not sought
or awarded in this case.
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whose injury is permanent. ‘‘Compensation for the dis-
ability takes the form of payment of medical expenses
. . . [as well as] specific indemnity awards, which com-
pensate the injured employee for the lifetime handicap
that results from the permanent loss of, or loss of use
of, a scheduled body part.’’ (Citation omitted.) Churchville
v. Bruce R. Daly Mechanical Contractor, supra, 299
Conn. 192; see id. (citing § 31-308 (b) as example of
specific indemnity award that compensates employee
for ‘‘[the] loss of or [the] loss of use of [a] member [of
the body]’’); see also Brennan v. Waterbury, supra, 331
Conn. 693 n.16 (quoting Churchville for proposition
that ‘‘ ‘it is clear that these two types of benefits [namely,
incapacity and disability benefits] compensate an
employee for different types of loss’ ’’); R. Carter et al.,
19 Connecticut Practice Series: Workers’ Compensation
Law (2008) § 8:77, p. 352 (‘‘Unlike total [incapacity]
benefits payable under . . . § 31-307, temporary par-
tial disability benefits payable under . . . § 31-308 (a),
or wage loss benefits payable under [General Statutes]
§ 31-308a, permanent partial disability benefits [under
§ 31-308 (b)] are not a substitute for lost earning capac-
ity. Early in the history of the [Workers’ Compensation]
Act, [this] [c]ourt emphasized that permanent partial
disability payments [under § 31-308 (b)] are not wage
replacement benefits, but are designed to compensate
an injured employee for the handicap resulting from a
workplace injury.’’).
The second foundational point, which logically fol-
lows from the first, is that these two types of benefits
are not mutually exclusive. Indeed, § 31-308 expressly
provides that permanent disability benefits provided
thereunder shall be ‘‘in addition to the usual compen-
sation for total incapacity but in lieu of all other pay-
ments for compensation . . . .’’ (Emphasis added.)
General Statutes § 31-308 (b); see Churchville v. Bruce
R. Daly Mechanical Contractor, supra, 299 Conn. 1920, 0 CONNECTICUT LAW JOURNAL Page 5
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Esposito v. Stamford
(‘‘[b]enefits available under the [Workers’ Compensa-
tion Act] serve the dual function of compensating for
the disability arising from the injury and for the loss
of earning power resulting from that injury’’ (internal
quotation marks omitted)); Churchville v. Bruce R.
Daly Mechanical Contractor, supra, 193 (‘‘We have
noted that § 31-308 specifically provides that compensa-
tion for permanent partial disability shall be in addition
to the usual compensation for total incapacity [under
§ 31-307]. . . . [I]t is clear that these two types of bene-
fits compensate an employee for different types of loss
. . . and that the payment of . . . § 31-307 temporary
total [incapacity] benefits does not discharge the obliga-
tion to pay § 31-308 permanent partial disability benefits
at some point in the future.’’ (Citations omitted; internal
quotation marks omitted.)).
The limitation on these dual statutory entitlements is
that total incapacity payments and permanent disability
benefits cannot be received concurrently; only succes-
sive payments are permissible. See Paternostro v. Edward
Coon Co., 217 Conn. 42, 49, 583 A.2d 1293 (1991) (con-
cluding ‘‘that the rule against double compensation pro-
hibits [the] concurrent payment of specific indemnity
benefits for permanent partial impairment under § 31-
308 (b) and benefits for total incapacity under § 31-307
as a result of the same incident’’); see also McCurdy v.
State, 227 Conn. 261, 267 n.8, 630 A.2d 64 (1993) (using
imprecise terminology but noting that ‘‘[an employee]
can at once be temporarily totally disabled and perma-
nently partially disabled . . . although he cannot col-
lect for both at the same time’’ (citation omitted;
emphasis in original)); Cappellino v. Cheshire, 226
Conn. 569, 577–78, 628 A.2d 595 (1993) (‘‘we have held
that the [Workers’ Compensation Act] prohibits [the]
concurrent payment of benefits for permanent partial
disability and temporary total [incapacity]’’ (emphasis
in original)); cf. Churchville v. Bruce R. Daly Mechani-
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cal Contractor, supra, 299 Conn. 193 (‘‘it is clear that
. . . the payment of . . . § 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’’ (citation omitted; internal
quotation marks omitted)).
The third point is that, although permanent disability
payments under § 31-308 (b) are not payable until a
claim is made for those benefits (by the claimant or
the claimant’s dependents or heirs, as the case may be),
it is well settled that a claimant has a vested entitlement
to those benefits when the claimant’s injury becomes
permanent. See Churchville v. Bruce R. Daly Mechani-
cal Contractor, supra, 299 Conn. 195 (observing that
‘‘[an] employee [who] has reached maximum medical
improvement’’ has ‘‘[a vested] right to a disability bene-
fit award’’); McCurdy v. State, supra, 227 Conn. 268 (‘‘[w]e
have long held that an injured worker has a right to a
permanent partial disability award once he or she reaches
maximum medical improvement’’ (emphasis added)).
These cases are rooted in the recognition that benefits
under § 31-308 (b) compensate the injured employee
for ‘‘the complete and permanent loss of use of the
member or organ referred to . . . .’’ General Statutes
§ 31-308 (b). It is clear under Connecticut law that a
claimant’s right to permanent disability benefits vests
under the statute when the disability becomes per-
manent.
When an injury becomes permanent is determined by
reference to equally well settled principles. Permanency
exists at ‘‘that time when there is no reasonable progno-
sis for complete or partial cure and no improvement
in the physical condition or appearance of the injured
body member can be reasonably made.’’ Cappellino v.
Cheshire, 27 Conn. App. 699, 703 n.2, 608 A.2d 1185(1992) (citing Wrenn v. Connecticut Brass Co., 96 Conn.
35, 38, 112 A. 638 (1921)), aff’d, 226 Conn. 569, 628 A.2d
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Esposito v. Stamford
595 (1993). This event is also referred to as the time
when the claimant reaches maximum medical improve-
ment. See Cappellino v. Cheshire, supra, 27 Conn. App.
703 n.2. In other words, a complete and permanent loss
of use of the member or organ exists when the condition
is probably not going to improve. At that time, the injury
is permanent, i.e., has reached maximum medical improve-
ment, and the claimant has a vested right to disability
benefits under § 31-308 (b). See id.; see also Churchville
v. Bruce R. Daly Mechanical Contractor, supra, 299
Conn. 195.
Fourth, when a claimant dies with vested disability
benefits remaining unpaid, the right to payment of those
vested benefits does not terminate. See Churchville v.
Bruce R. Daly Mechanical Contractor, supra, 299 Conn.
191 (‘‘[w]e have long recognized that the beneficiaries
of the Workers’ Compensation Act . . . include both
the injured employee and his or her dependents’’ (cita-
tion omitted)). The issue is not whether the vested
but unpaid benefits are payable, but to whom they are
payable. That question is resolved by determining whether
the unpaid benefits are matured or unmatured, because
that determination establishes whether the vested enti-
tlement passes to (1) the claimant’s estate, or (2) the
claimant’s dependents. See Brennan v. Waterbury,
supra, 331 Conn. 684–85. As we explained in Brennan,
‘‘[s]ince the earliest days of our workers’ compensation
law, compensation owed to a claimant but not paid
before his death was distributed according to whether
the benefit ‘accrued’ or ‘matured’ during the claimant’s
lifetime.’’ (Footnote omitted.) Id., 684. Matured benefits,
those which ‘‘accrue[d] in [the claimant’s] lifetime [but
which remain] unpaid,’’ become ‘‘an asset of the [claim-
ant’s] estate’’ and are distributed accordingly.7 (Internal
7
See 7 L. Larson & T. Robinson, Larson’s Workers’ Compensation Law
(2024) § 89.02 (‘‘[a]ccrued but unpaid installments are, of course, an asset
of the estate, like any other debt’’).
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quotation marks omitted.) Id., 684. By contrast, ‘‘the
[claimant’s] dependents alone have the right to the
unmatured part of the award of compensation . . . .’’
(Emphasis in original; internal quotation marks omit-
ted.) Id., 685, quoting Bassett v. Stratford Lumber Co.,
105 Conn. 297, 303–304, 135 A. 574 (1926). The concept
of maturation is thus relevant to determining the proper
recipient of vested benefits upon a claimant’s death.8
These four basic points, properly applied, resolve this
case. Because total incapacity benefits and permanent
disability benefits serve different purposes and compen-
sate different losses, the fact that the decedent received
§ 31-307 benefits in no way precludes the right of his
heirs or dependents to receive § 31-308 (b) benefits
after the § 31-307 benefits cease. The decedent’s right
to § 31-308 (b) benefits vested when he became eligible
to receive those benefits, which was on June 9, 1998,
the date the administrative law judge, in her findings
and award issued on March 22, 2022, expressly found
that the injuries to his eyes were total and permanent.
This finding controls the outcome of this case.
II
The majority opinion contains three intertwined
errors. The first is the lack of deference the majority
gives to the administrative law judge’s express factual
finding, contained in her findings and award dated
March 22, 2022, that the decedent’s loss of vision
became permanent no later than June 9, 1998, thereby
vesting his right to permanent disability benefits under
§ 31-308 (b) as of that date. The other two errors involve
the majority’s interpretation of our recent decision in
Brennan and its application to this case.
8
To illustrate, take the hypothetical example of a claimant who is entitled
to permanent disability benefits for a period of 235 weeks and dies after
35 weeks. Any benefits that have not been yet paid for those 35 weeks have
matured (and are payable to the claimant’s estate), whereas the 200 weeks
of unmatured benefits are owed to the claimant’s dependents.
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Esposito v. Stamford
A
The principal flaw in the majority opinion is its failure
to defer to the findings and award issued by the adminis-
trative law judge, who concluded that the decedent’s
loss of vision became permanent no later than June 9,
1998, thereby vesting his right to permanent disability
benefits under § 31-308 (b) as of that date.9 The adminis-
trative law judge’s finding that the decedent ‘‘suffered
from a reduction to one tenth or less of normal vision
in both of his eyes’’ satisfies § 31-308 (b) to the letter.10
There is strong factual support in the record supporting
the administrative law judge’s conclusion. It should not
be subjected to second-guessing by either the board or
this court.
The majority characterizes the plaintiff’s argument
as claiming an entitlement to disability benefits under
§ 31-308 (b) ‘‘as a matter of law’’ because the decedent
was previously awarded total incapacity benefits under
§ 31-307 (c). That is not the plaintiff’s claim. What the
plaintiff argues is that, in 1998, the commissioner made
the factual finding that the decedent’s loss of vision
was permanent, and that the administrative law judge’s
factual findings in 2022 reached the same conclusion
9
The majority misreads this dissent in claiming that this court should
afford the commissioner’s 1998 finding and award ‘‘appropriate appellate
deference, as the factual findings of an administrative adjudicator . . . .’’
Footnote 9 of the majority opinion. That is not my argument. The factual
findings at issue in this appeal are those made by the administrative law judge
in 2022, not those made by the commissioner in 1998. The administrative
law judge did not consider herself bound by the commissioner’s findings;
nor did she give them preclusive effect. Instead, she credited those findings,
together with other record evidence, in arriving at her own determination
that ‘‘the [decedent had] reached maximum medical improvement by June
9, 1998 . . . .’’ The fact that the administrative law judge’s finding was
consistent with the conclusions reached by the commissioner does not mean
that the finding was not made by the administrative law judge.
10
Section 31-308 (b) requires the ‘‘[c]omplete and permanent loss of sight
in, or reduction of sight to one-tenth or less of normal vision,’’ to establish
a right to permanent disability benefits.
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based on her own review of the evidence. ‘‘There can
be no dispute,’’ the plaintiff argues, ‘‘that [the commis-
sioner’s] June 9, 1998 finding and award adjudicated
and definitively determined that the [decedent’s] vision
loss was permanent and remained permanent.’’ The
argument continues in the same vein: ‘‘The fact that
[the commissioner] did not specifically incorporate the
phrase ‘maximum medical improvement’ in his decision
does not undo his conclusion that the [decedent’s]
vision loss remained permanent.’’ The plaintiff then
points out, in very clear terms, that ‘‘the administrative
law judge [who rendered the § 31-308 (b) award in 2022]
. . . agreed. She concluded that the [decedent] reached
maximum medical improvement by June 9, 1998, and
that the [decedent’s] entitlement to permanency bene-
fits vested no later than that date.’’ (Emphasis added.)
The plaintiff also contends that, wholly apart from
the commissioner’s findings in 1998, the undisputed
‘‘chronicity’’ of the impairment itself provided sufficient
evidence of its permanency to support the administra-
tive law judge’s conclusion, in 2022, that the loss of
vision was both total and permanent: ‘‘Even if [this
court] were to completely disregard [the commission-
er’s] finding and award, the adjudicated fact that the
[decedent] suffered from a compensable injury that
caused statutorily defined total incapacity, per § 31-307,
over approximately thirty-eight . . . years—from the
injury [in 1982] until the [decedent’s] death [in 2020]—
would still support the reasonable inference that [his]
vision loss was permanent. The impairment persisted
over a period of almost four . . . decades. The [dece-
dent] died with the condition unchanged from its onset.
The chronicity of the condition, alone, provides suffi-
cient evidentiary support to infer that it was permanent
during his lifetime. If the [decedent’s] vision loss was
not permanent, it begs the question as to what else is
needed to establish permanency.’’ In other words, the
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Esposito v. Stamford
fact that total incapacity benefits were paid to the dece-
dent from the date of injury until his death is evidence
supporting the reasonable conclusion that his medical
condition was in fact permanent.
The issue, then, is not whether the plaintiff is entitled
to § 31-308 (b) benefits as a matter of law. The issue
is whether the record contains any support for the
administrative law judge’s factual finding that the dece-
dent’s loss of vision was permanent no later than June
9, 1998. We cannot reject this finding because we would
have concluded otherwise. ‘‘[T]he power and duty of
determining the facts rests [with] the commissioner,
the trier of facts. . . . The conclusions drawn by him
from the facts found must stand unless they result from
an incorrect application of the law to the subordinate
facts or from an inference illegally or unreasonably
drawn from them.’’ (Citation omitted; internal quotation
marks omitted.) Fair v. People’s Savings Bank, 207
Conn. 535, 539, 542 A.2d 1118 (1988); see Coughlin v.
Stamford Fire Dept., 334 Conn. 857, 862–63, 224 A.3d
1161 (2020). ‘‘Neither the . . . board nor this court has
the power to retry facts.’’ (Internal quotation marks
omitted.) Birnie v. Electric Boat Corp., 288 Conn. 392,
404, 953 A.2d 28 (2008). Instead, ‘‘[o]n appeal, the board
must determine whether there is any evidence in the
record to support the commissioner’s findings and
award. . . . Our scope of review of [the] actions of the
[board] is [similarly] . . . limited. . . . [However]
[t]he decision of the [board] must be correct in law,
and it must not include facts found without evidence
or fail to include material facts [that] are admitted or
undisputed.’’ (Internal quotation marks omitted.) Pan-
tanella v. Enfield Ford, Inc., 65 Conn. App. 46, 52–53,
782 A.2d 141, cert. denied, 258 Conn. 930, 783 A.2d 1029(2001). ‘‘To the extent that the commissioner’s finding
discloses facts, his finding cannot be changed unless the
record discloses that the finding includes facts found
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without evidence or fails to include material facts
[that] are admitted or undisputed.’’ (Emphasis in origi-
nal; internal quotation marks omitted.) McCurdy v.
State, supra, 227 Conn. 267.
With respect to factual findings of permanency in
particular, the commissioner ‘‘can under certain condi-
tions find the injured worker is or is not at maximum
medical improvement and that decision is a factual
decision [that] rests solely with the [commissioner] as
the arbitrator of fact.’’ (Emphasis added.) 3 A. Sevarino,
Connecticut Workers’ Compensation After Reforms
(7th Ed. 2017) § 6.02.6, p. 913; see, e.g., Ayna v. Graebel/
CT Movers, Inc., 133 Conn. App. 65, 70–71, 33 A.3d
832 (reviewing ‘‘the commissioner’s decision that the
plaintiff . . . had reached maximum medical improve-
ment’’ as factual finding), cert. denied, 304 Conn. 905,
38 A.3d 1201 (2012); Ferrara v. Hospital of St. Raphael,
54 Conn. App. 345, 354–55, 735 A.2d 357 (considering
‘‘the . . . claim that the commissioner improperly
found that [the plaintiff] had reached maximum medical
improvement’’ and concluding that surgeon’s ‘‘testi-
mony provide[d] reasonable support for the commis-
sioner’s determination’’ and that ‘‘the board properly
upheld the factual determinations of the commis-
sioner’’), cert. denied, 251 Conn. 916, 740 A.2d 864(1999).
The conclusion reached by the administrative law
judge in the present case—that disability benefits under
§ 31-308 (b) vested no later than June 9, 1998—was a
factual determination based on her own review of the
evidentiary record, which led her to make an express
finding that the decedent’s eye injuries had become
permanent, i.e., had reached maximum medical improve-
ment, during the decedent’s lifetime. The administrative
law judge observed that the decedent had been ‘‘diag-
nosed . . . with a ‘profound visual loss in both eyes’ ’’
and ‘‘had been receiving ‘total [incapacity] benefits pur-
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Esposito v. Stamford
suant to § 31-307 . . . since 1984 . . . [for] total and
permanent loss of sight or the reduction to one tenth
or less of normal vision in both eyes.’ ’’ (Emphasis
added.) The administrative law judge also noted in her
findings that ‘‘Commissioner Gerald Kolinsky issued a
letter dated June 3, 1985, stating that the [decedent]
was ‘entitled to permanent total [incapacity] benefits,
pursuant to [§] 31-307 . . . due to total and permanent
loss of sight in both eyes.’’11 (Emphasis added.)
The administrative law judge further noted that a
formal hearing had been held before the commissioner
in 1998, in response to the city’s filing of a form 36
‘‘contesting the [decedent’s] continued entitlement to
permanent and total disability benefits pursuant to . . .
§ 31-307 (c)’’ based on the city’s allegation that ‘‘ ‘the
[decedent’s] permanent total disability status is other
than it was in 1984.’ ’’ After that hearing, the commis-
sioner ‘‘concluded that the [decedent had, indeed, still]
satisfied the standard set forth in . . . § 31-307 (c):
total incapacity caused by the reduction to one tenth
or less of normal vision in both eyes, which condition
had existed since the original injury of April 24, 1982.’’
(Emphasis added.) Because the commissioner denied
the form 36, the administrative law judge found that,
as of 1998, ‘‘there had been no change in the [decedent’s]
total disability status subsequent to the original injury
in 1982.’’
The administrative law judge reviewed not only the
commissioner’s conclusion, but also the evidence sup-
porting that conclusion as presented at the formal hear-
ing in 1998. This evidence consisted of the opinions
of various medical experts, including the decedent’s
treating ophthalmologist, Bruce R. Jacobson. Jacobson
11
Commissioners Paoletta and Kolinsky both mistakenly used the word
‘‘disability’’ rather than ‘‘incapacity.’’ The usage is so common that it is
probably unfair to call it a mistake. Nonetheless, the terminology is imprecise
and can lead to confusion. See footnote 4 of this opinion. No confusion
exists here because of the references to § 31-307.
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issued reports regarding the decedent’s condition no
fewer than six times over a period of twelve years, from
1986 to 1998, and repeatedly stated that the decedent
had at best ‘‘a visual acuity of 20/200’’ in both eyes,
which is one tenth or less of normal, uncorrected vision.
The record also contained the deposition and reports
of another ophthalmologist, Roland D. Carlson, who
examined the decedent at the city’s request in 1985 and
1987. Carlson found that the decedent’s ‘‘uncorrected
vision [in] the right [eye] was 20/200’’ and that the vision
in his ‘‘left eye [was] 20/200,’’ as well. Carlson reported
that the decedent had ‘‘just light perception’’ of the left
eye.12 Carlson also indicated that the decedent’s visual
loss could be psychogenic. A psychiatrist, Cyril Waynik,
stated that the decedent’s ‘‘blindness’’ was ‘‘psychogenic,’’
but Waynik also concluded that the ‘‘catastrophic injury
[that the decedent suffered] had a profoundly incapaci-
tating effect, which because of its long duration and
chronicity bode[d] poorly prognostically.’’ Jacobson,
the treating ophthalmologist, opined that, regardless
of the psychiatric complications, the decedent’s visual
disability was equal to a visual disability having a ‘‘purely
organic’’ cause.13
12
Carlson explained that light perception means that ‘‘the patient can tell
whether you have a flashlight turned on or off.’’
13
The case presented a classic battle of the experts. Jacobson and Carlson
disagreed on important points. For example, with respect to the ‘‘psy-
chogenic overlay’’ that impacted Carlson’s opinion, Jacobson opined that
the decedent’s ‘‘visual disability [was] equal to a visual disability having a
purely organic cause.’’ Waynik, the psychiatrist, agreed with Jacobson in
this regard. The commissioner and the administrative law judge evidently
credited Jacobson’s opinions over Carlson’s, as they were entitled to do.
See, e.g., Barlow v. Commissioner of Correction, 343 Conn. 347, 368, 273
A.3d 680 (2022) (‘‘It is the [fact finder’s] exclusive province to weigh the
conflicting evidence and to determine the credibility of witnesses. . . . The
[fact finder] can . . . decide what—all, none or some—of a witness’ testi-
mony to accept or reject.’’ (Internal quotation marks omitted.)); Dooley v.
Leo, 184 Conn. 583, 586, 440 A.2d 236 (1981) (when ‘‘there is strongly conflict-
ing testimony from the expert witnesses, the trier of fact must determine
the credibility of that testimony and may believe all, some, or none of the
testimony of a particular witness’’).
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The evidentiary record reviewed by the administra-
tive law judge also contained testimony from the dece-
dent and the plaintiff, his widow, regarding the
permanent nature of his vision loss. There was a tran-
script of the decedent’s testimony at the 1998 hearing,
at which he was asked whether his ‘‘ability to see ha[d]
. . . changed’’ since the incident in 1982. He replied,
‘‘[n]ot at all.’’ This evidence, if credited by the adminis-
trative law judge, showed that the decedent’s condition
had not improved at all over sixteen years. The city
never subsequently contested the permanent nature of
the decedent’s vision loss, and no contrary findings
were made or orders issued. The record also contained
a transcript of the deposition testimony the plaintiff
gave in 2021. When asked whether, ‘‘after [the] incident
took place [in 1982],’’ she had ‘‘observe[d] [the dece-
dent] having problems with his vision,’’ she replied,
‘‘[y]es.’’ When asked whether those problems ‘‘ever
[went] away,’’ she replied, ‘‘[n]o.’’ When asked whether
the decedent had ever stated ‘‘that he thought his vision
was improving at any point,’’ she replied, ‘‘[n]ever, no.’’
In light of the foregoing evidence, the administrative
law judge concluded in her findings and award, ‘‘[c]on-
sistent with the findings by [the commissioner], [that]
the [decedent had] suffered from a reduction to one
tenth or less of normal vision in both of his eyes from
the original injury [on] April 24, 1982.’’ The administra-
tive law judge further concluded that the decedent had
‘‘reached maximum medical improvement by [the date
the commissioner’s finding and award issued on] June 9,
1998,’’ and that his ‘‘entitlement to permanency benefits
[pursuant to § 31-308 (b) had] vested no later than . . .
June 9, 1998.’’ This is clearly a factual finding.
Applying the proper standard of review, I perceive
no basis for this court to conclude that the administra-
tive law judge did not make a factual determination
that the decedent had reached maximum medical
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improvement as of June 9, 1998. Far from being unrea-
sonable, the determination finds substantial support in
the record. Indeed, the majority concedes as much. The
majority states: ‘‘[a]lthough there is evidence in the
record that might well ultimately support a finding of
maximum medical improvement, we do not agree
. . . that the 1998 finding, as viewed by the administra-
tive law judge, conclusively established the maximum
medical improvement required for an award of perma-
nency benefits under § 31-308 (b).’’ (Emphasis added.)
The issue on appeal, once again, is not whether the
1998 finding conclusively established maximum medi-
cal improvement; it is whether the administrative law
judge in 2022 made that finding, which she plainly did,
in clear and unambiguous terms. As I previously explained,
that finding was based on all of the evidence in the
record, not merely the commissioner’s 1998 finding.
The majority acknowledges that there is evidence in
the record ‘‘that might well’’ support such a finding.
Under these circumstances, there is nothing left to decide
regarding the decedent’s entitlement to disability bene-
fits under § 31-308 (b).
The majority suggests that the factual findings of the
administrative law judge who awarded benefits under
§ 31-308 (b) in 2022 are not entitled to deference
because the administrative law judge made no ‘‘new’’
factual findings but, instead, merely gave ‘‘legal effect
to the 1998 finding concerning the plaintiff’s claim for
permanency benefits under § 31-308 (b).’’ Footnote 9
of the majority opinion. Two points warrant emphasis
in response to this suggestion. Perhaps most important,
the administrative law judge did, in fact, make her own
findings in 2022 after holding a formal hearing at which
evidence was taken. I have reviewed that evidence and
those findings in detail and will not repeat them here.
As I noted previously in this opinion, the administrative
law judge plainly did not consider herself bound by
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Esposito v. Stamford
the commissioner’s earlier findings, gave those earlier
findings no preclusive effect, and proceeded to reach
her own factual conclusions. See footnote 9 of this
opinion. The fact that the administrative law judge’s
finding of permanency was based in part on evidence
in the 1998 record, and is consistent with the commis-
sioner’s previous findings, does not mean that her fac-
tual findings are any less her own or entitled to any
less appellate deference.
Second, it is clear that there is no legal prohibition
that barred the administrative law judge from awarding
benefits under § 31-308 (b) on the basis (in part) of
evidence initially submitted in connection with the 1998
hearing regarding § 31-307 (c) benefits. A review of our
case law demonstrates that the contrary is true. By
using the record and findings supporting the 1998 award
of total incapacity benefits under § 31-307 (c) as docu-
mentary evidence, among other evidence, showing that
the decedent’s condition had become permanent at that
time for purposes of awarding § 31-308 (b) benefits, the
administrative law judge followed the same procedure
we adhered to in McCurdy v. State, supra, 227 Conn.
261. In McCurdy, we looked at competing medical
reports in the record and independently concluded that
maximum medical improvement had been reached,
such that the right to permanency benefits had vested
in the decedent’s lifetime. See id., 263–64, 268–69; see
also Adzima v. UAC/Norden Division, 177 Conn. 107,
116–19, 411 A.2d 924 (1979) (finding that deceased
claimant had not reached maximum medical improve-
ment after weighing conflicting medical opinions in
record). The administrative law judge in the present
case did not err at any juncture as she followed this pro-
cedure.
It is, of course, true that the administrative law judge
reviewed evidence that had in large part, although not
entirely, been submitted in support of a claim for total
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incapacity benefits under § 31-307 (c) rather than per-
manent disability benefits under § 31-308 (b). But that
fact matters only if the particular evidence establishing
the decedent’s entitlement to benefits under the former
statute cannot also be used to establish his entitlement
to benefits under the latter statute. Such is not the case
here. To the contrary—and specifically with respect to
benefits for the loss of vision—the relevant criteria are
the same under these two statutory provisions, and the
same evidence that establishes an entitlement to total
incapacity benefits, if credited by the fact finder in a
proceeding for disability benefits under § 31-308 (b),
can establish an entitlement to permanent disability
benefits. Section 31-307 (c) provides in relevant part
that ‘‘[t]he following injuries of any person shall be
considered as causing total incapacity and compensa-
tion shall be paid accordingly: (1) Total and permanent
loss of sight of both eyes, or the reduction to one-tenth
or less of normal vision . . . .’’ (Emphasis added.) Sec-
tion 31-308 (b) identifies injuries that ‘‘shall’’ entitle the
claimant to disability benefits, ‘‘in addition to the usual
compensation for total incapacity,’’ and specifies that
‘‘[a]ll 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 . . . .’’
(Emphasis added.) The scheduled injuries include the
‘‘[c]omplete and permanent loss of sight in, or reduc-
tion of sight to one-tenth or less of normal vision
. . . .’’ (Emphasis added.) General Statutes § 31-308
(b).
The relevant statutory language requiring a finding
of permanency is virtually identical in the two statutes,
which normally means that the legislature intended the
words to have the same meaning. See, e.g., State v.
Sabato, 321 Conn. 729, 747, 138 A.3d 895 (2016) (‘‘[i]n
light of the close relationship between [General Stat-
utes] §§ 53a-151 (a) and 53a-151a (a), it is appropriate
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Esposito v. Stamford
to give the same phrase in each statute the same mean-
ing’’); State v. Grant, 294 Conn. 151, 160, 982 A.2d 169(2009) (‘‘ordinarily, the same or similar language in the
same statutory scheme will be given the same meaning’’).
Again, there is no need to decide whether a claimant
who is entitled to total incapacity benefits for loss of
vision is entitled to permanent disability benefits for
loss of vision ‘‘as a matter of law’’ because that is neither
what the administrative law judge concluded in this
case nor what the plaintiff argues before this court. The
critical point is simply that the evidence and findings
in connection with the award of total incapacity benefits
for loss of vision in the present case, and presumably
in most cases, will be highly relevant to any subsequent
claim seeking permanent disability benefits under § 31-
308 (b), particularly in the absence of any evidence
that, notwithstanding the finding of a ‘‘total and perma-
nent’’ loss of function when incapacity benefits were
awarded, the claimant’s condition improved thereafter.
General Statutes § 31-307 (c) (1).
Neither the majority nor the defendants point to any
factual finding that negates the conclusion reached by
the administrative law judge; the majority even con-
cedes that the factual findings ‘‘might well’’ support the
conclusion reached by the administrative law judge.
The majority observes only that the fact ‘‘[t]hat there
was no further updating of the decedent’s medical
record with respect to his eye injuries between 1995
and his death in 2020 does not mean as a matter of
law that his condition remained unchanged since 1984.’’
(Emphasis added.) Again, no one is contending that
permanency has been established as a matter of law.
The claim is a factual one, and, as I have indicated,
there is abundant evidence—and, as the majority
acknowledges, there is at the very least some evidence,
which is all that is needed—to support the administra-
tive law judge’s conclusion that the decedent’s loss of
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vision was more likely than not a permanent condition
as of June 9, 1998.
B
I also disagree with the majority’s application of our
recent decision in Brennan in two respects. First, the
majority interprets Brennan to require a permanent
partial disability rating to establish that an injury is
permanent. It observes that ‘‘the record lacks a clear
permanent partial disability rating, or an agreement to
that effect between the decedent and the defendants
that would furnish a basis for the requisite finding of
maximum medical improvement.’’ The majority asserts
that, ‘‘[a]lthough the decedent’s physicians character-
ized his condition as ‘one tenth or less of normal uncor-
rected vision’ when he was originally examined and
treated between 1982 and 1995, there is no other indica-
tion that the physicians determined that that particular
degree of vision loss constituted any percentage of max-
imum medical improvement.’’
The requirement of a permanent partial disability rat-
ing, although of importance in Brennan,14 has no rele-
vance in the present case because the injury in this
case involved a total (100 percent) disability. On April
14
Brennan explains that a permanent partial disability rating was neces-
sary in that case because the rating establishes ‘‘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 (i.e.,
number of weeks of compensation owed). An employer’s payment obliga-
tions, then, are not fixed until the establishment of entitlement to permanent
disability benefits. . . . This court has recognized that the condition prece-
dent, entitlement to this benefit, ‘depends on both the establishment of a
permanent disability and the extent of that disability . . . .’ ’’ (Emphasis in
original.) Brennan v. Waterbury, supra, 331 Conn. 696, quoting Churchville
v. Bruce R. Daly Mechanical Contractor, supra, 299 Conn. 193. This reason-
ing has no application when, as here, the claim is for total or complete
impairment as defined by statute, i.e., the ‘‘[c]omplete and permanent loss
of sight in, or reduction of sight to one-tenth or less of normal vision . . . .’’
General Statutes § 31-308 (b).
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Esposito v. Stamford
24, 1982, when the decedent sustained the injury at
issue, the version of § 31-308 (b) in effect provided that
a claimant suffering from ‘‘the complete and permanent
loss of the sight of one eye, or the reduction in one eye
to one-tenth or less of normal vision,’’ was entitled to
235 weeks of benefits for that injury. General Statutes
(Rev. to 1981) § 31-308 (b) (7). As I discussed previously,
precisely that degree of permanency was an explicit
component of the findings made by administrative law
judge on the basis of the medical records and related
testimony at the two formal hearings held in connection
with this matter. No percentage rating was needed
beyond the finding that the decedent suffered a reduc-
tion to one tenth or less of normal vision in both of his
eyes; that finding established a 100 percent disability
under the express terms of the statute.15
Second, the majority opinion misapprehends the doc-
trinal distinction between the vesting and the matura-
tion of benefits under § 31-308 (b). Based on its reading
of Brennan, the majority characterizes the issue at hand
as whether the decedent’s right to benefits under § 31-
308 (b) had matured: ‘‘Brennan states that permanency
benefits mature under § 31-308 only after the degree of
permanency is fixed by either an award or an agreement
between the parties . . . .’’ (Emphasis altered.) In
another instance, the majority states: ‘‘We concluded [in
Brennan] that permanent disability benefits can mature
‘only after the degree of permanency has been fixed by
way of an award or an agreement between the parties
sufficient to establish a binding meeting of the minds’
15
The majority also suggests that other cases in addition to Brennan
establish the need for a permanent partial disability rating as a prerequisite
to any permanent partial disability award. It cites Churchville and McCurdy
in support. Both cases are distinguishable for the same reason as Brennan,
namely, because neither involved a permanent injury that entitled the claim-
ant to a fixed number of weeks of benefits.
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24 ,0 0 Conn. 0Esposito v. Stamford
and, accordingly, remanded the case to the commis-
sioner for this finding.’’16
The central issue in the present case involves when
benefits under § 31-308 (b) vest, not when they mature.
As I discussed in part I of this opinion, benefits vest
when the claimant’s injury becomes permanent; they
mature when they become payable. The issue of matura-
tion does not relate to when the benefits become an
entitlement, but who has the right to receive the benefits
to which the claimant is entitled after death—the estate,
or the dependents. Brennan did not change our legal
standard regarding vesting in any respect. Indeed, we
indicated that the benefits at issue in Brennan had
vested when maximum medical improvement was
reached on October 13, 1993. Brennan v. Waterbury,
supra, 331 Conn. 699. Our inquiry was focused on
determining whether the claimant’s ‘‘disability benefits
[under General Statutes § 7-433c] . . . matured before
his death,’’ and, accordingly, we ‘‘remanded for further
proceedings to decide the proper beneficiary of any
benefits due.’’ (Emphasis added.) Id., 700. Our conclu-
sion in Brennan affected solely our standard regarding
maturation, not vesting.
To summarize, I would conclude that the board erred
in rejecting the administrative law judge’s factual con-
clusion that the decedent’s entitlement to disability ben-
efits under § 31-308 (b) vested no later than June 9,
1998. Our review of an administrative law judge’s fac-
tual findings in this context is deferential, and there is
16
Although the majority indicates that it disagrees with my reading of
Brennan in this respect, the language it quotes from Brennan actually
supports my point. Brennan explains that the benefits do not vest (or accrue,
a term ‘‘equivalent to vesting’’) until the date when the claimant reaches
maximum medical improvement. Brennan v. Waterbury, supra, 331 Conn.
695 n.17.
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abundant evidence in the record to support the 2022
findings and award.
For the foregoing reasons, I respectfully dissent.17
17
The two remaining issues are (1) whether the plaintiff, as the decedent’s
widow, is the decedent’s presumptive dependent and therefore entitled to
the vested permanent disability benefits, and (2) whether the defendants
were entitled to a credit against the vested permanent disability benefits
for the total incapacity benefits that were paid after the June 9, 1998 award.
Because the majority concludes that the decedent, at the time of his death,
had no vested entitlement to permanent disability benefits under § 31-308
(b), it does not reach these issues. Although I am of the opinion that the
right to permanent disability benefits had vested, I also choose to leave
these subsidiary issues unaddressed because the case should be remanded
to the board to analyze those issues in the first instance with the benefit
of the legal principles set forth in this opinion.