Brennan v. Waterbury ( 2024 )

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2 ,0 0 Conn. App. 231Brennan v. Waterbury
JANET BRENNAN, EXECUTRIX (ESTATE OF
THOMAS BRENNAN) v. CITY
OF WATERBURY
(AC 45467)
Elgo, Moll and Cradle, Js.
Syllabus
The defendant city appealed from the judgment of the Compensation Review
Board affirming in part the decision of the workers’ compensation commis-
sioner awarding certain workers’ compensation benefits to the plaintiff.
The defendant claimed, inter alia, that the board improperly affirmed the
commissioner’s conclusion that the plaintiff was entitled to interest pursuant
to statute (§ 7-433c). Held:
In light of this court’s resolution of the related appeal in Waterbury v.
Brennan (228 Conn. App. 206), this court could afford the defendant no
practical relief and, therefore, the present appeal was rendered moot and
the appeal was dismissed for lack of subject matter jurisdiction.
Argued February 5—officially released September 24, 2024
Procedural History
Appeal from the decision of the Workers’ Compensa-
tion Commissioner for the Fifth District, inter alia,
approving certain workers’ compensation benefits,
brought to the Compensation Review Board, which
reversed in part the commissioner’s decision and
remanded the case for further proceedings, and the
defendant appealed to this court. Appeal dismissed.
Daniel J. Foster, corporation counsel, for the appel-
lant (defendant).
Robert C. Lubus, Jr., with whom was Andrew S.
Marcucci, for the appellee (plaintiff).
Opinion
ELGO, J. The defendant, the city of Waterbury (city),
appeals from the judgment of the Compensation Review
Board (board), affirming in part the decision of the
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Brennan v. Waterbury
Workers’ Compensation Commissioner (commis-
sioner)1 in favor of the plaintiff, Janet Brennan, the
executrix of the estate of Thomas Brennan. On appeal,
the city claims that the board improperly affirmed the
commissioner’s conclusions that (1) the plaintiff’s enti-
tlement to heart and hypertension benefits pursuant to
General Statutes § 7-433c matured during the lifetime
of the decedent, Thomas Brennan, (2) the plaintiff is
entitled to statutory interest on § 7-433c benefits, and
(3) the city unduly delayed payment on, and unreason-
ably contested, the decedent’s claim for § 7-433c bene-
fits. In light of our resolution of the related appeal in
Waterbury v. Brennan, 228 Conn. App. 206, A.3d
(2024), which also was released today, we conclude
that the present appeal is moot, as this court can provide
the city no practical relief. Accordingly, we dismiss
the appeal.
The backdrop to this appeal is detailed in Brennan
v. Waterbury, 331 Conn. 672, 207 A.3d 1 (2019) (Bren-
nan I). The city hired the decedent as its fire chief on
November 8, 1991. See id., 675. Following a heart attack
in 1993, the decedent filed a claim for § 7-433c benefits.
Id., 676. In December, 1993, the commissioner issued
a finding and award, concluding that the decedent had
sustained a compensable injury and ordering the city
to pay all benefits to which he ‘‘ ‘is or may become
entitled.’ ’’ Id. The city and the decedent thereafter
attempted, to no avail, to reach an agreement on the
1
General Statutes § 31-275d (a) (1), effective October 1, 2021, provides
in relevant part that, ‘‘[w]henever the words ‘workers’ compensation com-
missioner,’ ‘compensation commissioner,’ or ‘commissioner,’ denote a work-
ers’ compensation commissioner in [several enumerated] sections of the
general statutes, [including sections contained in the Workers’ Compensa-
tion Act, General Statutes § 31-275 et seq.] the words ‘administrative law
judge’ shall be substituted in lieu thereof . . . .’’
As all events involving the workers’ compensation commissioner underly-
ing this appeal occurred prior to October 1, 2021, we refer to the workers’
compensation commissioner as the commissioner.
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4 ,0 0 Conn. App. 231Brennan v. Waterbury
payment of benefits.2 Id. Although the city made
advance payments to the decedent pursuant to § 7-433c
in July, 1997, and in June, 1999,3 the decedent and the
city ‘‘never entered into a full and final settlement of
the heart and hypertension claim.’’ Id., 677.
The decedent died on April 20, 2006. Id., 678. As the
court noted in Brennan I, ‘‘[i]t was not until 2013 that
the decedent’s attorney sought to finalize the decedent’s
permanent partial disability claim under § 7-433c.’’ Id..
The decedent’s attorney subsequently moved to substi-
tute the plaintiff as party claimant. Id. The commis-
sioner granted that motion and, in a decision dated
December 7, 2015, ordered permanent partial disability
benefits of 80 percent payable to her, less any advance
payments made to date. Id., 278–79. On appeal, the
board concluded that an estate was not a qualified recip-
ient of vested but unpaid § 7-433c benefits. Id., 680.
The board thus vacated the commissioner’s decision
granting the motion to substitute the plaintiff as party
claimant and remanded the case to the commissioner
to determine the proper recipient. Id.
From that judgment, the plaintiff appealed to this
court. The Supreme Court then transferred the appeal
to itself pursuant to General Statutes § 51-199 (c) and
Practice Book § 65-1. In its decision, the Supreme Court
first concluded that ‘‘§ 7-433c benefits properly may be
paid to a claimant’s estate, if such benefits matured
before the claimant’s death.’’ Id., 682. The court further
concluded that, ‘‘on the present record, we cannot state
with certainty that the unpaid portion of the 80 percent
While those negotiations were ongoing, the decedent elected to take
2
disability retirement in December, 1995, and the city’s retirement board
authorized a 75 percent disability pension. Brennan v. Waterbury, supra,331 Conn. 676–77 and n.4.
3
The commissioner found, and the record confirms, that the city made
lump sum payments toward the decedent’s § 7-433c claim in the amount of
$59,200.20 in 1997 and $17,982.12 in 1999.
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Brennan v. Waterbury
permanent partial disability benefits necessarily
matured before the decedent’s death. Our uncertainty in
this regard exists because the commissioner’s decision
does not include necessary findings on the critical
issues, and we therefore leave open the possibility that
the commissioner, on remand, may find that some por-
tion of the benefits matured before the decedent’s
death.’’ Id., 694. In that regard, the court explained that
‘‘permanent disability benefits 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. . . . [W]e
cannot conclude on the present record that the degree
of permanency was fixed prior to the decedent’s death.
However, because this issue was not addressed by the
commissioner, and the case is being remanded to the
commissioner for further proceedings, we leave open
the possibility that the commissioner may conclude that
some portion of the benefits matured during the dece-
dent’s lifetime.’’ Id., 697. The Supreme Court thus
reversed the board’s determination that the commis-
sioner improperly granted the motion to substitute the
plaintiff as party claimant and remanded the case for
further proceedings before the commissioner ‘‘to deter-
mine the proper beneficiary and the amount of benefits
due . . . .’’ Id., 700.
The commissioner held a hearing in accordance with
that remand and issued a decision on May 21, 2021, in
which he concluded, inter alia, that (1) ‘‘there was a
clear meeting of the minds that the [decedent] had
sustained a 77.5 [percent] permanent partial disability’’;
(2) the decedent’s § 7-433c benefits ‘‘vested and
matured on or before May 28, 1998’’; (3) the decedent’s
estate ‘‘is entitled to all unpaid [§ 7-433c] benefits . . .
less the payments made’’ to the decedent in July, 1997,
and June, 1999; (4) ‘‘the [city] . . . is obligated to pay
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6 ,0 0 Conn. App. 231Brennan v. Waterbury
statutory interest pursuant to General Statutes § 31-
295, for all benefits due and owing from the date of
maximum medical improvement of October 13, 1993’’;
(5) ‘‘the [city] unduly delayed and unreasonably con-
tested this matter in violation of General Statutes §§ 31-
288 and 31-300’’; and (6) the city’s ‘‘continued contest
and arguments regarding the permanent partial disabil-
ity issue [is] unreasonable given the Supreme Court
decision in this matter, and the evidence in this case
. . . which clearly establishes an agreement as to the
permanent partial disability of 77.5 [percent].’’ The com-
missioner also stated that ‘‘[f]urther hearings will be
held, if necessary, to address penalties and attorney’s
fees.’’ In response, the city filed a motion to correct
certain findings in that decision, which the commis-
sioner denied.
The city then appealed from that decision to the
board. In its April 11, 2022 decision, the board con-
cluded that the commissioner had ‘‘properly determined
that the parties had reached a compromise permanency
agreement prior to May 28, 1998,’’ and that said agree-
ment was sufficient to establish a binding meeting of
the minds pursuant to the Supreme Court’s decision in
Brennan I. The board also rejected the city’s claim that
a risk manager for the city lacked authority to bind the
city to that agreement. With respect to the commission-
er’s award of interest under § 31-295 (c), which, the
board noted, is not triggered ‘‘until the determination
has been made that the claimant is entitled to the perma-
nency benefits and the issue is no longer the subject
of litigation,’’ the board stated that it was ‘‘unable to
identify’’ the date on which that interest should begin
to accrue ‘‘on the basis of either the evidentiary record
or the [commissioner’s] findings . . . .’’ (Citation omit-
ted.) The board therefore concluded that the commis-
sioner’s decision was erroneous in that limited regard
and remanded the matter ‘‘for clarification relative to
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Brennan v. Waterbury
the commencement date for the statutory interest
. . . .’’ Although the board rejected the city’s challenge
to the award of penalties and attorney’s fees, as no such
award had yet been granted, the board remanded the
matter to the commissioner ‘‘for additional proceedings
on that issue, as well.’’ From that decision, the city
appealed to this court on May 2, 2022.
Distinct from this workers’ compensation proceeding
is a declaratory judgment action brought in the Superior
Court by the city against the plaintiff4 in 2015, regarding
her entitlement to any further § 7-433c benefits.5 As we
noted in Waterbury v. Brennan, supra, 228 Conn. App.
209–10, ‘‘[t]he gist of [the city’s] complaint [in that action]
was that, due to a pension offset provision in the 1967
Waterbury city charter (city charter), no further heart
and hypertension payments were due to the [plaintiff].
The city thus sought a declaratory judgment that (1)
‘[p]ursuant to Russo [v. Waterbury, 304 Conn. 710, 41
A.3d 1033 (2012)], the city charter and [the decedent’s]
employment contract, any [§ 7-433c] benefits allegedly
due to [the decedent] . . . would have resulted in an
offset of the [plaintiff’s] or [the decedent’s] pension’;
(2) ‘[t]he offset applies to all amounts in contention,
the ‘‘net’’ amount in contention is zero and the city does
not have to pay the [plaintiff] any additional [§ 7-433c]
benefits as a matter of law’; and (3) ‘[t]he judgment for
[§ 7-433c] benefits issued by the [commissioner] would
result in a double recovery explicitly forbidden by the
[city charter] and Russo, therefore the city does not
have to pay the [plaintiff] any monies as a matter of
law . . . .’ ’’ (Footnote omitted.) By order dated June
4
The city brought that action against Janet Brennan in both her individual
capacity and as executrix of the estate of the decedent. Waterbury v. Bren-
nan, supra, 228 Conn. App. 207 n.1.
5
It is well established that an appellate court may ‘‘take judicial notice
of the court files in another suit between the parties . . . .’’ McCarthy v.
Warden, 213 Conn. 289, 293, 567 A.2d 1187 (1989), cert. denied, 496 U.S.
939, 110 S. Ct. 3220, 110 L. Ed. 2d 667 (1990).
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8 ,0 0 Conn. App. 231Brennan v. Waterbury
27, 2022, the trial court in that action rendered summary
judgment in favor of the city. In its decision, the court
concluded that (1) the plaintiff could not ‘‘escape the
. . . offset rules reducing amounts payable under
workers’ compensation awards by amounts that are
received by way of pension payments’’ from the city
and (2) the offsets in that case exceeded the amount
of § 7-433c benefits due to the plaintiff ‘‘so as to relieve
the city of any liability for payments on account of
workers’ compensation awards.’’ (Emphasis added.)
The plaintiff thereafter filed a motion for reargument
and reconsideration of that decision, which the court
denied. In that motion, the plaintiff did not challenge
the propriety of the court’s determination that the
amount of the offsets stemming from pension payments
to the decedent relieved the city of ‘‘any liability for
payments on account of workers’ compensation
awards.’’6 The plaintiff likewise did not seek an articula-
tion of the court’s decision in that regard or file a motion
for review with this court. See Practice Book §§ 66-5
and 66-6; see also Orcutt v. Commissioner of Correc-
tion, 284 Conn. 724, 739 n.25, 937 A.2d 656 (2007) (‘‘in
the absence of an articulation . . . [an appellate court
will] presume that the trial court acted properly’’).
On January 13, 2023, the plaintiff appealed to this
court from the judgment of the trial court in that declar-
6
The plaintiff advanced ‘‘four reasons’’ in support of her motion for reargu-
ment and reconsideration. She argued that (1) there was a genuine issue
of material fact as to whether the decedent had been granted a pension
pursuant to a collective bargaining agreement between the city and the
Waterbury Firefighters Association, Local 1339; (2) the court incorrectly
determined that the city’s retirement board ‘‘lacked the authority to bind the
city to providing a disability pension’’ pursuant to that collective bargaining
agreement; (3) the court’s decision permitting the offset of § 7-433c benefits
was ‘‘impermissible as the benefits are to be paid to two distinct legal
entities’’; and (4) the court’s decision ‘‘left unanswered the issue of the
length of time the [city] is permitted to offset Janet Brennan’s pension
benefits when the remaining [§ 7-433c] benefits are past due in one lump
sum payment.’’ (Emphasis added.)
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Brennan v. Waterbury
atory judgment action.7 In Waterbury v. Brennan,
supra, 228 Conn. App. 206, we concluded that the court
properly rendered summary judgment in favor of the
city in the declaratory judgment action and affirmed its
decision in all respects, including its determination that
no further payments related to the decedent’s heart and
hypertension claim were due to the plaintiff. In light of
that conclusion, a question of mootness arises with
respect to the present appeal.8
‘‘Mootness presents a legal question and implicates
this court’s subject matter jurisdiction, a threshold mat-
ter to resolve. . . . This court has a duty to dismiss
cases over which it lacks subject matter jurisdiction,
which cannot be conferred by the consent of the par-
ties.’’ (Citation omitted.) Gladstein v. Goldfield, 325
Conn. 418, 424, 159 A.3d 661 (2017). ‘‘[T]he question of
subject matter jurisdiction, because it addresses the
basic competency of the court, can be raised by any of
the parties, or by the court sua sponte, at any time
. . . .’’ (Emphasis in original; internal quotation marks
omitted.) M&T Bank v. Lewis, 349 Conn. 9, 20, 312 A.3d
1040 (2024). Our review of the question of mootness is
plenary. State v. Rodriguez, 320 Conn. 694, 699, 132
A.3d 731 (2016).
7
On February 5, 2024, this court heard oral argument on both Docket No.
AC 46178, the plaintiff’s appeal from the judgment of the trial court in the
declaratory judgment action, and Docket No. AC 45467, the city’s appeal
from the decision of the board now before us.
8
By order dated July 25, 2024, this court ordered the parties to file simulta-
neous supplemental briefs on ‘‘whether, if this court concludes that the trial
court properly rendered judgment in favor of the . . . city in [Docket No.]
AC 46178, this court can provide the parties any practical relief in AC 45467
or whether that appeal must be dismissed as moot.’’ In its supplemental
brief, the city—the sole appellant in this appeal—concedes that, if this court
were to affirm the judgment of the trial court in Docket No. AC 46178,
‘‘there will be no practical relief that can be granted through disposition of
the merits of [the claims raised in] the present appeal, and this appeal will
be moot.’’
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10 ,0 0 Conn. App. 231Brennan v. Waterbury
‘‘[M]ootness implicates the well established rule that
[a]n actual controversy must exist not only at the time
[an] appeal is taken, but also throughout the pendency
of the appeal. . . . When, during the pendency of an
appeal, events have occurred that preclude an appellate
court from granting any practical relief through its dis-
position of the merits, a case has become moot. . . .
[T]he requirement of an actual controversy . . . is
premised upon the notion that courts are called upon
to determine existing controversies, and thus may not
be used as a vehicle to obtain advisory judicial opinions
on points of law. . . . [I]t is not the province of appel-
late courts to decide moot questions, disconnected from
the granting of actual relief or from the determination
of which no practical relief can follow. . . . In short,
[when] the question presented is purely academic, we
must refuse to entertain the appeal.’’ (Citations omitted;
internal quotation marks omitted.) Gladstein v. Gold-
field, supra, 325 Conn. 424–25.
As our Supreme Court observed more than one-half
century ago, ‘‘the existence of an actual controversy is
an essential requisite to appellate jurisdiction; it is not
the province of appellate courts to decide moot ques-
tions, disconnected from the granting of actual relief
or from the determination of which no practical relief
can follow. . . . The question may be made moot by
the act of the court from which the appeal is taken,
as where pending an appeal some judgment or order
rendered or made in the cause renders the determina-
tion of the questions presented by the appeal unneces-
sary. Likewise it may arise from the act of another court
or judge.’’ (Citation omitted.) Reynolds v. Vroom, 130
Conn. 512, 515, 36 A.2d 22 (1944). We conclude that
the city’s appeal in the present case has been rendered
moot due to our decision in Waterbury v. Brennan,
supra, 228 Conn. App. 206.
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Brennan v. Waterbury
In the present case, the city asks this court to deter-
mine whether the board improperly affirmed the com-
missioner’s conclusions that (1) the plaintiff’s entitle-
ment to § 7-433c benefits matured during the decedent’s
lifetime, (2) the plaintiff is entitled to statutory interest
on § 7-433c benefits, and (3) the city unduly delayed
and unreasonably contested the decedent’s claim for
§ 7-433c benefits. Those questions are purely academic
in light of our decision in Waterbury v. Brennan, supra,228 Conn. App. 206. In rendering summary judgment
in favor of the city in the declaratory judgment action,
the trial court concluded that an offset provision in
the city charter relieved the city of ‘‘any liability for
payments on account of workers’ compensation
awards.’’ (Emphasis added; internal quotation marks
omitted.) Id., 211. On appeal, we affirmed that judgment.
Id., 207, 230. Accordingly, the city is not liable for any
payments to the plaintiff arising from the decedent’s
claim for § 7-433c benefits beyond those that it made
to the decedent in July, 1997, and June, 1999. See foot-
note 3 of this opinion. Because the city is not liable for
such payments, it follows that the city cannot be liable
for statutory interest, penalties, or attorney’s fees for
delaying payment thereon.9 For that reason, resolution
of the claims raised in this appeal would not benefit
the parties in any meaningful way.10 See State v. Lester,
9
See General Statutes § 31-288 (b) (providing for civil penalties when
payment of ‘‘compensation due’’ to claimant is unduly delayed by employer);
General Statutes § 31-295 (c) (employer shall pay interest only on sums that
‘‘the employee is entitled to receive’’ that ‘‘are not so paid’’); General Statutes
§ 31-300 ((‘‘[i]n cases where, through the fault or neglect of the employer
or insurer, adjustments of compensation have been unduly delayed, or where
. . . payments have been unduly delayed, the administrative law judge may
include in the award . . . a reasonable attorney’s fee’’). Pursuant to the
plain language of those statutes, a prerequisite to recovery thereunder is the
existence of a workers’ compensation payment due and owing to a claimant.
10
In her supplemental brief filed with this court, the plaintiff argues that,
because workers’ compensation benefits are nontaxable, ‘‘the city caused
[the decedent] to pay taxes on funds that were not taxable.’’ She thus asserts
that, ‘‘[u]nless handled within the compensation claim, [the plaintiff] upon
final judgment would have a new suit against [the city] for intentionally
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12 ,0 0 Conn. App. 231Brennan v. Waterbury
324 Conn. 519, 526, 153 A.3d 647 (2017) (‘‘[i]n determin-
ing mootness, the dispositive question is whether a suc-
cessful appeal would benefit the plaintiff or defendant
in any way’’ (internal quotation marks omitted)). In light
of the foregoing, we conclude that the city’s appeal is
moot and must be dismissed for lack of subject matter
jurisdiction.
The appeal is dismissed.
In this opinion the other judges concurred.
misreporting the payments as taxable.’’ That tax issue is not properly before
us, as it was not raised at any time before the commissioner or the board.
The plaintiff likewise did not raise it in her appellate brief with this court.