Dahle v. Stop & Shop Supermarket Co. , 185 Conn. App. 71 ( 2018 )

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BARBARA DAHLE v. THE STOP AND SHOP
SUPERMARKET COMPANY, LLC, ET AL.
(AC 39528)
DiPentima, C. J., and Sheldon and Harper, Js.
Syllabus
The plaintiff, who was injured while she was employed by the defendant
company, appealed to this court from the decision of the Compensation
Review Board affirming the decision of the Workers’ Compensation
Commissioner dismissing the plaintiff’s claim that she was entitled to
temporary total disability benefits without a social security offset pursu-
ant to statute ([Rev. to 2003] § 31-307 [e]). Prior to the hearings regarding
the plaintiff’s claim that she was entitled to disability benefits without
an offset, the commissioner issued a decision in 2008 in which he granted
the plaintiff’s request for certain benefits but denied her request for
additional medical treatment, which the board affirmed on appeal in
2009. The plaintiff did not appeal from that decision of the board. On
appeal before this court, the plaintiff claimed, inter alia, that she should
have been awarded benefits without the social security offset because
errors and delays by the commissioner in 2008 and the board in 2009
resulted in a delay in obtaining compensation, which made her subject
to the offset. Held:
1. The board did not err by refusing to address the plaintiff’s attempt to
correct past incorrect evidence and to introduce new evidence to prove
that delays beyond her control made her subject to the social security
offset: that evidence pertained to factual findings and issues related to
the 2008 decision of a commissioner that had become final when the
plaintiff failed to appeal the board’s decision affirming that commission-
er’s decision, and the board properly determined that it did not have
the authority to correct findings from the commissioner’s 2008 decision;
moreover, the board did not err by failing to address the commissioner’s
alleged statement that the plaintiff’s medical treatment was delayed, as
the commissioner neither found nor opined that the plaintiff’s treatment
was delayed and, instead, was simply paraphrasing what the plaintiff
might include in the proposed findings that she was required to draft.
2. The board did not err in affirming the commissioner’s denial of the
plaintiff’s request for financial compensation without the social security
offset: although § 31-307 (e) was repealed, the offset applied to the
plaintiff’s claim because it was in effect on the date of the plaintiff’s
injury, the board did not err in stating that the plaintiff was requesting
a waiver of the social security offset, as her request for benefits without
the offset was the functional equivalent of requesting a waiver of the
offset, and the plaintiff could not prevail on her claim that she was
entitled to a waiver of the offset due to the alleged negligence and
carelessness of the commissioner in 2008 and the board in 2009, as the
commissioner and the board properly determined that there was no
authority for the commissioner to waive the statutorily required social
security offset.
Argued April 16—officially released September 25, 2018
Procedural History
Appeal from the decision of the Workers’ Compensa-
tion Commissioner for the Sixth District dismissing the
plaintiff’s claim that she was entitled to temporary total
disability benefits without a social security offset,
brought to the Compensation Review Board, which
affirmed the commissioner’s decision, and the plaintiff
appealed to this court. Affirmed.
Barbara Dahle, self-represented, the appellant
(plaintiff).
Jane M. Carlozzi, for the appellee (named
defendant).
Francis C. Vignati, Jr., assistant attorney general,
with whom, on the brief, were George Jepsen, attorney
general, and Philip M. Schulz, assistant attorney gen-
eral, for the appellee (defendant Second Injury Fund).
Opinion
HARPER, J. The plaintiff, Barbara Dahle, appeals
from the decision of the Compensation Review Board
(board), which affirmed the decision of the Workers’
Compensation Commissioner for the Sixth District1 dis-
missing the plaintiff’s claim that she was entitled to
temporary total disability benefits without a social secu-
rity offset. On appeal, the plaintiff claims2 that the board
erred by: (1) not addressing past incorrect evidence, not
finding her new evidence credible, and not addressing
a statement from Commissioner Stephen B. Delaney
about delayed medical care; and (2) denying her request
for financial compensation without a social security
offset pursuant to General Statutes (Rev. to 2003) § 31-
307 (e).3 We disagree and, accordingly, affirm the deci-
sion of the board.
The following facts and procedural history are rele-
vant to our resolution of this appeal. On August 8, 2003,
the plaintiff suffered a compensable injury to her right
shoulder and left hip after she fell during and in the
course of her employment with the defendant The
Stop & Shop Supermarket Company, LLC.4 Following
treatment, Scott Organ, a physician, issued a 5 percent
permanent partial disability rating as to the plaintiff’s
right upper extremity by report dated March 17, 2006.
By voluntary agreement of the parties, dated September
5, 2006, the plaintiff was paid a 5 percent permanent
partial disability5 of the right shoulder with a maximum
medical improvement date of September 5, 2006. No
permanency rating was ever issued as to the plaintiff’s
left hip.
A formal hearing took place before Commissioner
Ernie R. Walker on June 3, 2008. The issues addressed
at the hearing included the plaintiff’s claim for wage
differential benefits pursuant to General Statutes § 31-
308a6 and her claim for additional medical treatment
pursuant to General Statutes (Rev. to 2003) § 31-294d.7
On June 4, 2008, Commissioner Walker issued a deci-
sion (2008 commissioner’s decision) in which he
granted the plaintiff’s request for § 31-308a benefits but
denied her request for additional medical treatment
pursuant to § 31-294d. Regarding the denial of addi-
tional medical treatment, the commissioner noted that
he found credible the testimony of the plaintiff’s treating
physician, Organ, who testified at the hearing that it
was his opinion that additional treatment would be
palliative and not curative.
On June 18, 2008, the plaintiff filed a motion to correct
the 2008 commissioner’s decision, which was denied
on June 19, 2008. On June 27, 2008, the plaintiff filed a
petition for review of the 2008 commissioner’s decision
denying her request for additional medical treatment.
The petition for review was heard before the board
on December 12, 2008. On June 5, 2009, the board
affirmed the 2008 commissioner’s decision, finding no
error. Specifically, the board concluded, inter alia, that
‘‘the medical opinions in the . . . record provide ample
support for the determination by the . . . commis-
sioner that a pain management regimen would be pallia-
tive rather than curative and, thus, would not constitute
reasonable or necessary treatment.’’8 The plaintiff did
not appeal the June 5, 2009 decision of the board (2009
board decision).9
On April 18, 2011, the plaintiff requested approval
from the Workers’ Compensation Commission (com-
mission) for surgery on her right shoulder. The request
initially was denied. The plaintiff then underwent sur-
gery on her right shoulder on September 17, 2014, for
which she received total incapacity benefits pursuant
to § 31-307, with an offset for social security benefits,
as required by subsection (e) of that statute.
Formal hearings took place before Commissioner
Delaney on April 27, May 8, and June 16, 2015, to address
the plaintiff’s claim that she was entitled to compensa-
tion without a social security offset, and that the 2008
commissioner’s decision and the 2009 board decision
were incorrect.10 Specifically, the plaintiff ‘‘assert[ed]
that delays in her requested medical treatment [had]
caused her to be subject to the social security offset
and, as a result of these delays, [the commissioner] may
order [the defendant] to pay temporary total [disability]
benefits at the full rate without regard to the [§] 31-
307 (e) offset.’’ On September 28, 2015, Commissioner
Delaney dismissed the plaintiff’s claim, having found
that the plaintiff had failed to sustain her burden of
proof that she was entitled to benefits without the off-
set. In his finding and dismissal (2015 commissioner’s
decision), the commissioner noted that from August,
2008, to May, 2013, approximately fifteen hearings took
place regarding medical treatment and benefits, and
the plaintiff was represented by counsel during these
proceedings. Commissioner Delaney also noted that
‘‘[t]he . . . commission authorized various physicians
to treat/evaluate the [plaintiff] through this time
period.’’ On the basis of these findings, the commis-
sioner rejected the plaintiff’s equitable claim that, due
to alleged negligence and errors in the handling of her
case, her case was delayed and, thus, she was entitled
to temporary total disability benefits without the social
security offset.
On October 13, 2015, the plaintiff filed a petition for
review of the 2015 commissioner’s decision denying her
request for benefits without the social security offset.
On November 23, 2015, the plaintiff filed a motion to
correct, which was denied on December 3, 2015.
The petition for review was heard before the board
on April 29, 2016. On August 8, 2016, the board affirmed
the 2015 commissioner’s decision and rejected the
plaintiff’s equitable argument that a waiver of the offset
should be granted (2016 board decision). The board
noted that the commissioner had no authority to waive
the offset. The board also noted that, ‘‘even if this tribu-
nal could consider this case on the merits, we would
find that many of the arguments raised by the [plaintiff]
on appeal go to factual issues which an appellate panel
such as ours cannot retry . . . . Moreover, many of
the issues [the plaintiff] has raised go to the handling
of her claim during the period prior to June 4, 2008,
when Commissioner Walker issued a finding that the
[plaintiff] subsequently appealed. We affirmed that
[2008 commissioner’s] decision. The [plaintiff] did not
appeal our decision to the Appellate Court. We must
now treat [the 2009 board] decision as final and as being
the law of the case . . . .’’ (Citation omitted; internal
quotation marks omitted.) This appeal followed.
We begin by setting forth our standard of review.
‘‘The principles that govern our standard of review in
workers’ compensation appeals are well established.
The conclusions drawn by [the commissioner] from
the facts found must stand unless they result from an
incorrect application of the law to the subordinate facts
or from an inference illegally or unreasonably drawn
from them. . . . [Moreover, it] is well established that
[a]lthough not dispositive, we accord great weight to
the construction given to the workers’ compensation
statutes by the commissioner and [the] board. . . .
Cases that present pure questions of law, however,
invoke a broader standard of review than is ordinarily
involved in deciding whether, in light of the evidence,
the agency has acted unreasonably, arbitrarily, illegally
or in abuse of its discretion.’’ (Internal quotation marks
omitted.) Balloli v. New Haven Police Dept., 324 Conn.
14, 17–18, 151 A.3d 367 (2016).
I
The plaintiff first claims that the board erred in not
addressing past incorrect evidence and not finding her
new evidence credible.11 Specifically, the plaintiff
argues that ‘‘new (facts) evidence in the record . . .
establishes that the negligent and careless handling of
her case since 2005 is the main factor in the years of
waiting for her medical treatments and her return to
full employment. The . . . [b]oard erred by failing to
acknowledge the new (facts) evidence that [the] plain-
tiff has submitted.’’ The plaintiff further claims that the
board erred in not addressing Commissioner Delaney’s
statement about delayed medical treatment. We
disagree.
Because the plaintiff’s claims relate to factual find-
ings by the commissioner, we begin our analysis by
reiterating that ‘‘[a]n agency’s factual and discretionary
determinations are to be accorded considerable weight
by the courts.’’ (Internal quotation marks omitted.) Pas-
quariello v. Stop & Shop Cos., 281 Conn. 656, 663, 916
A.2d 803 (2007). ‘‘Once the commissioner makes a fac-
tual finding, [we are] bound by that finding if there is
evidence in the record to support it.’’ (Internal quotation
marks omitted.) Rodriguez v. E.D. Construction, Inc.,
126 Conn. App. 717, 726, 12 A.3d 603, cert. denied, 301
Conn. 904, 17 A.3d 1046 (2011).
As to the plaintiff’s argument regarding ‘‘past incor-
rect evidence’’ and ‘‘new evidence,’’ the board properly
refused to address it in the 2016 board decision.12 The
evidence that the plaintiff references pertains to factual
findings and issues related to the 2008 commissioner’s
decision. As the board noted in its decision, ‘‘many of
the arguments raised by the [plaintiff] on appeal go to
factual issues which an appellate panel such as ours
cannot retry . . . .’’ It is well established that ‘‘[n]either
the . . . board nor this court has the power to retry
facts. . . . [O]n review of the commissioner’s findings,
the [board] does not retry the facts nor hear evidence.
It considers no evidence other than that certified to it
by the commissioner, and then for the limited purpose
of determining whether or not the finding should be
corrected, or whether there was any evidence to sup-
port in law the conclusions reached.’’ (Internal quota-
tion marks omitted.) Hummel v. Marten Transport,
Ltd., 114 Conn. App. 822, 842–43, 970 A.2d 834, cert.
denied, 293 Conn. 907, 978 A.2d 1109 (2009). The board
properly determined that it did not have the authority
to ‘‘correct’’ findings from the 2008 commissioner’s
decision—a decision that had become final when the
plaintiff did not appeal the 2009 board decision
affirming the 2008 commissioner’s decision—as the
plaintiff requested that it do. Accordingly, we cannot
conclude that the board erred in refusing to address
the plaintiff’s new evidence.13
As to the plaintiff’s claim regarding the commission-
er’s alleged statement about delayed medical care, our
review of the transcript demonstrates that the plaintiff
quotes Commissioner Delaney out of context. The plain-
tiff argues that the ‘‘commissioner himself acknowl-
edges [that the] plaintiff’s medical treatment was
delayed.’’ Contrary to her position, Commissioner Dela-
ney was simply paraphrasing what the plaintiff might
include in the proposed findings that she was required
to draft. Commissioner Delaney stated during the April
27, 2015 hearing: ‘‘Okay, I’m going to give you an oppor-
tunity to give me what we call [p]roposed [f]indings,
and you can ask . . . my paralegal [about the format]
. . . . [Y]ou want me to take your evidence in the best
light for you and [tell me] why I should find a, what’s
the word, I don’t want to use the word because you
don’t like it, you don’t like the word exception . . . .
[So], why [§ 31-307 (e)] is not applicable to you . . .
delay of medical treatment . . . . Somebody delayed
your medical treatment and the system. I’m not going
to ask you to write a [b]rief unless you’d like to . . . .’’
The plaintiff then stated that she would talk to the
commissioner’s paralegal about how to format the pro-
posed findings. Commissioner Delaney, however, nei-
ther found nor opined that the plaintiff’s treatment was
delayed. Accordingly, we cannot conclude that the
board erred by not acknowledging such a statement in
its 2016 decision.
On the basis of the foregoing, we conclude that the
board did not err by refusing to address the plaintiff’s
attempt to correct ‘‘past incorrect evidence’’ and intro-
duce ‘‘new evidence’’ to prove that delays beyond her
control made her subject to the offset.
II
The plaintiff next claims that the board erred in
affirming the commissioner’s denial of her request for
financial compensation without the social security off-
set. Specifically, the plaintiff argues that she should
have been awarded benefits without the social security
offset set forth in § 31-307 (e) because errors and delays
by the commissioner in 2008 and the board in 2009
resulted in a delay in obtaining compensation, which
made her subject to the offset. The plaintiff essentially
argues that, if not for the negligence of the commis-
sioner and the board, she would have received her com-
pensation benefits before she started receiving social
security, and she, therefore, would not have been sub-
ject to the offset. The plaintiff further argues that the
board erred in stating that she requested a waiver of
the offset. We disagree.
Section 31-307 (e) provides: ‘‘Notwithstanding any
provision of the general statutes to the contrary, com-
pensation paid to an employee for an employee’s total
incapacity shall be reduced while the employee is enti-
tled to receive old age insurance benefits pursuant to
the federal Social Security Act. The amount of each
reduced workers’ compensation payment shall equal
the excess, if any, of the workers’ compensation pay-
ment over the old age insurance benefits.’’ In 2006,
the legislature, through ‘‘Public Acts 2006, No. 06-84,
removed subsection (e) from § 31-307.’’ Hummel v.
Marten Transport, Ltd., supra, 114 Conn. App. 826 n.2.
Although the offset was repealed, ‘‘[w]e look to the
statute in effect at the date of injury to determine the
rights and obligations between the parties.’’ Id. Because
the offset was in effect on August 8, 2003, the date of
injury, the offset applies to the plaintiff’s claim.
On appeal, the plaintiff does not contest that her age
makes her subject to the social security offset. She also
does not argue that the repeal of the offset applies
retroactively. In fact, in her reply brief, the plaintiff
clarifies that she ‘‘is not asking this court to ignore [§]
31-307 (e) and waive it. [She] did not request [that] the
. . . board . . . waive . . . the offset.’’ Instead, the
plaintiff argues that negligence in the handling of her
case resulted in delays in treatment that made her sub-
ject to the offset, and that, as a result, she is entitled
to financial compensation without the offset because
it is not her fault that she is subject to the offset. Despite
the plaintiff’s argument to the contrary, her request for
benefits without the offset is the functional equivalent
of requesting a waiver of the offset. Accordingly, we
reject her argument that the board erred in stating that
she was requesting a waiver of the offset because she
did, in effect, request a waiver even if that was not the
exact language that she used.
As to her argument in favor of a waiver, a significant
portion of the plaintiff’s appellate briefs are dedicated
to her claim that, due to the alleged negligence and
carelessness of the commissioner in 2008 and the board
in 2009, she is entitled to a waiver of the offset. To the
extent that the plaintiff argues that her new evidence
established negligence on the part of the commission
that entitled her to a waiver of the offset, we reject that
argument. As we previously concluded in this opinion,
the board properly refused to address the plaintiff’s new
evidence in its 2016 decision. See part I of this opinion.
More importantly, the plaintiff has provided no
authority, and we have found none, that permits the
commissioner to waive the statutorily required social
security offset. ‘‘The powers and duties of workers’
compensation commissioners are conferred upon them
for the purposes of carrying out the stated provisions
of the Workers’ Compensation Act. . . . It is well set-
tled that the commissioner’s jurisdiction is confined by
the . . . act and limited by its provisions.’’ (Internal
quotation marks omitted.) Frantzen v. Davenport Elec-
tric, 179 Conn. App. 846, 851, 181 A.3d 578, cert. denied,
328 Conn. 928, 182 A.3d 637 (2018). The plaintiff essen-
tially concedes that nothing gives the commissioner the
authority to waive the offset for her requested reasons,
by stating in her principal brief that ‘‘[t]his appeal must
set a precedent for the negligence and carelessness in
the mishandling of [the] plaintiff’s case.’’ She further
states in her reply brief to this court that she ‘‘is not
suggesting that the commissioner has the power to
order an employer to compensate a [plaintiff] for errors
made by the commission.’’
On the basis of the foregoing, the plaintiff’s claim
must fail. Because both the commissioner and the board
properly determined that there was no authority for the
commissioner to waive the offset, we cannot say the
board erred in denying the plaintiff’s request for finan-
cial compensation without the offset.
The decision of the Compensation Review Board is
affirmed.
In this opinion the other judges concurred.
1
The plaintiff appeals from the decision of the board, dated August 8,
2016, which affirmed the decision of Commissioner Stephen B. Delaney,
dated September 28, 2015. Also related to this appeal is a decision of the
board, dated June 5, 2009, which affirmed a decision of Commissioner Ernie
R. Walker, dated June 4, 2008. For clarity, in this opinion, we refer to the
commissioners by name, and to the decisions of the commissioners and the
board by date.
2
The plaintiff also claims on appeal that the court erred by not finding
negligence and carelessness in the commissioner’s and the board’s handling
of her case. The plaintiff argues that the commissioner and the board failed
to adhere to the Code of Ethics for Workers’ Compensation Commissioners.
The plaintiff, however, has not commenced an action against the commis-
sioner and the board, and they are not parties to this case. Accordingly, we
decline to address the argument as a separate claim. To the extent that this
claim of negligence necessarily is intertwined with the plaintiff’s argument
that the board erred in denying her requested financial compensation, we
address it in greater detail in part II of this opinion.
3
General Statutes (Rev. to 2003) § 31-307 (e) provides: ‘‘Notwithstanding
any provision of the general statutes to the contrary, compensation paid to
an employee for an employee’s total incapacity shall be reduced while the
employee is entitled to receive old age insurance benefits pursuant to the
federal Social Security Act. The amount of each reduced workers’ compensa-
tion payment shall equal the excess, if any, of the workers’ compensation
payment over the old age insurance benefits.’’ All references to § 31-307 (e)
herein, unless otherwise stated, refer to the 2003 revision of the statute.
4
MAC Risk Management, Inc., and the Second Injury Fund are also defen-
dants in this action. For convenience, we refer in this opinion to The Stop &
Shop Supermarket Company, LLC, as the defendant.
5
‘‘Compensation for loss of earning power takes the form of partial or
total incapacity benefits. . . . Incapacity . . . means incapacity to work
. . . . Partial incapacity benefits are available when the employee is able
to perform some employment, but [is] unable fully to perform his or her
customary work . . . . The duration of partial incapacity benefits is limited
by statute. . . . Conversely . . . [t]otal incapacity benefits, unlike partial
incapacity benefits, are unrestricted as to duration.’’ (Citations omitted;
internal quotation marks omitted.) Starks v. University of Connecticut, 270
Conn. 1, 9, 850 A.2d 1013 (2004).
6
General Statutes § 31-308a provides in relevant part: ‘‘(a) In addition to
the compensation benefits provided by section 31-308 for specific loss of a
member or use of the function of a member of the body, or any personal injury
covered by this chapter, the commissioner, after such payments provided
by said section 31-308 have been paid for the period set forth in said section,
may award additional compensation benefits for such partial permanent
disability . . . .
‘‘(b) Notwithstanding the provisions of subsection (a) of this section,
additional benefits provided under this section shall be available only when
the nature of the injury and its effect on the earning capacity of an employee
warrant additional compensation.’’
7
General Statutes (Rev. to 2003) § 31-294d (a) (1) provides in relevant
part that ‘‘[t]he employer, as soon as the employer has knowledge of an
injury, shall provide a competent physician or surgeon to attend the injured
employee and, in addition, shall furnish any medical and surgical aid or
hospital and nursing service, including medical rehabilitation services and
prescription drugs, as the physician or surgeon deems reasonable or neces-
sary.’’ Hereinafter, unless otherwise indicated, all references to § 31-294d
in this opinion are to the 2003 revision of the statute.
8
As the board noted in its decision: ‘‘[W]hether or not medical care satisfies
the reasonable and necessary standard of § 31-294d is a factual issue to be
decided by the . . . commissioner . . . . Reasonable or necessary medical
care is that which is curative or remedial. Curative or remedial care is that
which seeks to repair the damage to health caused by the job even if not
enough health is restored to enable the employee to return to work.’’ (Cita-
tions omitted; internal quotation marks omitted.)
9
During the proceedings before the commissioner and the board from 2003
to 2013, the plaintiff was represented by counsel. Thereafter, she became
self-represented.
10
Commissioner Delaney took administrative notice of the plaintiff’s file
with the commission, the 2008 commissioner’s decision, and the 2009
board decision.
11
The defendant asserts that the plaintiff has included documents in her
appendix on appeal that are not part of the administrative record. It claims
that the plaintiff’s ‘‘[a]ppendix contents starting on pages A14, A17, A18,
A19, A20, A29, A66, A72, A73, A107, and A110 were not included in the
record below. Only pages 7, 18 and 24 of the [d]eposition of Scott Organ,
M.D., were included in the record below; the entire deposition is included
in the [plaintiff’s] [a]ppendix.’’ Having confirmed that these portions of the
appendix were not included in the administrative record and, therefore, are
not properly before us, we do not consider them.
12
To support her claim that the board should have addressed her new
evidence, which she argues demonstrates negligence on the part of the
commissioner and the board, the plaintiff cites to cases in which the commis-
sion was a party to the action. See, e.g., Gyadu v. Workers’ Compensation
Commission, 930 F. Supp. 738 (D. Conn. 1996), aff’d, Docket Nos. 96-7950,
96-9616, 1997 WL 716128, *1–2 (2d Cir. November 17, 1997) (decision without
published opinion, 129 F.3d 113 [2d Cir. 1997]), cert. denied, 525 U.S. 814,
119 S. Ct. 49, 142 L. Ed. 2d 38 (1998); see also Warren v. Mississippi Workers’
Compensation Commission, 700 So. 2d 608, 609, 615 (Miss. 1997) (plaintiffs
failed to show deprivation of due process rights due to delays in workers’
compensation system). We reiterate that the present action is not against
the commission. See footnote 2 of this opinion.
13
The plaintiff also states in her principal brief that she provides new
evidence in this appeal that demonstrates that, since 2005, neither the board
nor the commissioner has handled her case properly. It is not our function
to engage in fact-finding. See McTiernan v. McTiernan, 164 Conn. App. 805,
830, 138 A.3d 935 (2016) (‘‘[I]t is axiomatic that this appellate body does
not engage in fact-finding. Connecticut’s appellate courts cannot find facts
. . . .’’ [Internal quotation marks omitted.]). We are bound by the record
before us, which does not contain the facts that the plaintiff attempts to
introduce on appeal. To the extent that there is material before us that was
not included in the record, we decline to review it. See footnote 11 of
this opinion.