[34]
Opinion
KATZ, J.
As in the companion case of Starks v. University of Connecticut, 270 Conn. 1, 850 A.2d 1013 (2004), which we also have decided today, this appeal requires us to determine whether the receipt of state disability retirement benefits by the plaintiff, Eileen Smedley, must be considered in determining her discretionary benefits awarded pursuant to General Statutes (Rev. to 1987) § 31-308a2 of the Workers’ Compensation Act, contained in chapter 568 of the General Statutes.3 The plaintiff appeals4 from the decision of the compensation review board (review board) affirming the decision of the workers’ compensation commissioner for the fifth district (commissioner) that ordered that any § 31-308a benefit awarded to her be reduced by the amount she received in state disability [35] retirement benefits. The named defendant,5 the department of mental retardation, argues that the decision of the review board was proper, and further argues that any other outcome would result in a double recovery for the plaintiff. For the reasons set forth in Starks v. University of Connecticut, supra, 21-29, we conclude that, because the State Employees Retirement Act, contained in chapter 66 of the General Statutes,6 already provides for a statutory offset of certain workers’ compensation benefits; see General Statutes §§ 5-169 (g) and 5-192p (d); see footnotes 12 and 13 of this opinion; the calculation of the plaintiffs § 31-308a benefits should not have considered any amounts received as state disability retirement benefits. We, therefore, reverse the decision of the review board.
The record reveals the following undisputed facts and procedural histoiy. On August 8, 1987, the plaintiff was employed by the defendant as a cook at the South-bury Training School, when she suffered a compensable injury that left her with a 25 percent permanent partial disability of her back. At the time of the injury, the plaintiff earned an average weekly wage of $297. She was awarded 130 weeks of permanent partial disability benefits pursuant to General Statutes (Rev. to 1987) § 31-308,7 which entitles an employee suffering aperma[36] nent disability to a specified body part to payment of a fixed amount of benefits. Her compensation rate was $198.57 per week. Due to her injury, the plaintiff was unable to return to her position as a cook at the South-bury Training School. Consequently, she completed vocational rehabilitation and, since approximately March 1, 1998, she has been employed privately on a light duty basis, earning less than what she had earned at her former state position with the defendant. After her specific indemnity benefits expired, on approximately January 23, 1997, the plaintiff was awarded 165 weeks of benefits pursuant to General Statutes (Rev. to 1987) § 31-308a, which permits the commissioner, on a discretionary basis, to grant additional benefits “equal to two-thirds of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury and the weekly amount which such employee will probably be able to earn thereafter . . . .”8 These supplemental benefits expired on approximately February 7, 1999. Subse[37] quently, the plaintiff requested another § 31-308a award retrospective to February 7, 1999.
In 1999, the plaintiff was awarded a state disability retirement pension, retrospective to January 1, 1997, and began receiving benefits of approximately $275 per week. The defendant refused the plaintiffs request for additional § 31-308a benefits on the basis that the commissioner should take into consideration the benefits she received from her state disability retirement pension. The parties stipulated that, if the plaintiffs state disability retirement benefits were added to the amount she received in wages from her employment in a light duty position, she would not be entitled to receive any § 31-308a benefits.9
In proceedings before the commissioner, the defendant argued that the plaintiffs disability retirement pension should be considered in determining her § 31-308a benefit and that such benefit should be reduced accordingly. The commissioner agreed and, as a result, factored that amount in the calculation, thereby deciding not to award a § 31-308a benefit.
The plaintiff filed a petition for review on November 21, 2001, disagreeing with the commissioner’s determination that the receipt of state disability retirement benefits should be included in the calculation of § 31-308a benefits. In an opinion issued October 25, 2002, the review board rejected the plaintiffs appeal, determining that the offset of disability retirement benefits was appropriate under its prior ruling in Iannarone v. Dept. of Mental Retardation, 4138 CRB-7-99-10 (June 15, 2001), in which the review board held that a state disability pension should be included in the amount a [38] claimant is “able to earn thereafter” for purposes of § 31-308a. In further support of its decision, the review board stated that General Statutes § 31-31410 mandates such an offset because it requires that “due allowance shall be made for any sum which the employer has paid to any injured employee or to his dependents on account of the injury . . . .” The review board noted that the application of § 31-314 to the plaintiffs receipt of state disability retirement benefits was consistent with the general rule prohibiting a double recovery.
“As a threshold matter, we set forth the standard of review applicable to workers’ compensation appeals. ... It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and [the review] board.” (Internal quotation marks omitted.) Kuehl v. Z-Loda Systems Engineering, Inc., 265 Conn. 525, 532, 829 A.2d 818 (2003). “It is well settled that we do not defer to the [review] board’s construction of a statute—a question of law—when, as in the present case, the provisions at issue previously have not been subjected to judicial scrutiny or when the [review] board’s interpretation has not been time tested.” Rayhall v. Akim Co., 263 Conn. 328, 354, 819 A. 2d 803 (2003). Accordingly, because this issue is one of first impression for our courts, our review is plenary.
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[34]
Opinion
KATZ, J.
As in the companion case of Starks v. University of Connecticut, 270 Conn. 1, 850 A.2d 1013 (2004), which we also have decided today, this appeal requires us to determine whether the receipt of state disability retirement benefits by the plaintiff, Eileen Smedley, must be considered in determining her discretionary benefits awarded pursuant to General Statutes (Rev. to 1987) § 31-308a2 of the Workers’ Compensation Act, contained in chapter 568 of the General Statutes.3 The plaintiff appeals4 from the decision of the compensation review board (review board) affirming the decision of the workers’ compensation commissioner for the fifth district (commissioner) that ordered that any § 31-308a benefit awarded to her be reduced by the amount she received in state disability [35] retirement benefits. The named defendant,5 the department of mental retardation, argues that the decision of the review board was proper, and further argues that any other outcome would result in a double recovery for the plaintiff. For the reasons set forth in Starks v. University of Connecticut, supra, 21-29, we conclude that, because the State Employees Retirement Act, contained in chapter 66 of the General Statutes,6 already provides for a statutory offset of certain workers’ compensation benefits; see General Statutes §§ 5-169 (g) and 5-192p (d); see footnotes 12 and 13 of this opinion; the calculation of the plaintiffs § 31-308a benefits should not have considered any amounts received as state disability retirement benefits. We, therefore, reverse the decision of the review board.
The record reveals the following undisputed facts and procedural histoiy. On August 8, 1987, the plaintiff was employed by the defendant as a cook at the South-bury Training School, when she suffered a compensable injury that left her with a 25 percent permanent partial disability of her back. At the time of the injury, the plaintiff earned an average weekly wage of $297. She was awarded 130 weeks of permanent partial disability benefits pursuant to General Statutes (Rev. to 1987) § 31-308,7 which entitles an employee suffering aperma[36] nent disability to a specified body part to payment of a fixed amount of benefits. Her compensation rate was $198.57 per week. Due to her injury, the plaintiff was unable to return to her position as a cook at the South-bury Training School. Consequently, she completed vocational rehabilitation and, since approximately March 1, 1998, she has been employed privately on a light duty basis, earning less than what she had earned at her former state position with the defendant. After her specific indemnity benefits expired, on approximately January 23, 1997, the plaintiff was awarded 165 weeks of benefits pursuant to General Statutes (Rev. to 1987) § 31-308a, which permits the commissioner, on a discretionary basis, to grant additional benefits “equal to two-thirds of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury and the weekly amount which such employee will probably be able to earn thereafter . . . .”8 These supplemental benefits expired on approximately February 7, 1999. Subse[37] quently, the plaintiff requested another § 31-308a award retrospective to February 7, 1999.
In 1999, the plaintiff was awarded a state disability retirement pension, retrospective to January 1, 1997, and began receiving benefits of approximately $275 per week. The defendant refused the plaintiffs request for additional § 31-308a benefits on the basis that the commissioner should take into consideration the benefits she received from her state disability retirement pension. The parties stipulated that, if the plaintiffs state disability retirement benefits were added to the amount she received in wages from her employment in a light duty position, she would not be entitled to receive any § 31-308a benefits.9
In proceedings before the commissioner, the defendant argued that the plaintiffs disability retirement pension should be considered in determining her § 31-308a benefit and that such benefit should be reduced accordingly. The commissioner agreed and, as a result, factored that amount in the calculation, thereby deciding not to award a § 31-308a benefit.
The plaintiff filed a petition for review on November 21, 2001, disagreeing with the commissioner’s determination that the receipt of state disability retirement benefits should be included in the calculation of § 31-308a benefits. In an opinion issued October 25, 2002, the review board rejected the plaintiffs appeal, determining that the offset of disability retirement benefits was appropriate under its prior ruling in Iannarone v. Dept. of Mental Retardation, 4138 CRB-7-99-10 (June 15, 2001), in which the review board held that a state disability pension should be included in the amount a [38] claimant is “able to earn thereafter” for purposes of § 31-308a. In further support of its decision, the review board stated that General Statutes § 31-31410 mandates such an offset because it requires that “due allowance shall be made for any sum which the employer has paid to any injured employee or to his dependents on account of the injury . . . .” The review board noted that the application of § 31-314 to the plaintiffs receipt of state disability retirement benefits was consistent with the general rule prohibiting a double recovery.
“As a threshold matter, we set forth the standard of review applicable to workers’ compensation appeals. ... It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and [the review] board.” (Internal quotation marks omitted.) Kuehl v. Z-Loda Systems Engineering, Inc., 265 Conn. 525, 532, 829 A.2d 818 (2003). “It is well settled that we do not defer to the [review] board’s construction of a statute—a question of law—when, as in the present case, the provisions at issue previously have not been subjected to judicial scrutiny or when the [review] board’s interpretation has not been time tested.” Rayhall v. Akim Co., 263 Conn. 328, 354, 819 A. 2d 803 (2003). Accordingly, because this issue is one of first impression for our courts, our review is plenary.
On appeal, the plaintiff argues that the review board’s decision in Iannarone v. Dept. of Mental Retardation, supra, 4138 CRB-7-99-10, was incorrect when the review board concluded that benefits received under the state disability retirement plan should be considered part of “the weekly amount which such employee will probably [39] be able to earn thereafter” under § 31-308a. Instead, the plaintiff contends that because the statute expressly provides that benefits are “to be determined . . . based upon the nature and extent of the injury, the training, education and experience of the employee, [and] the availability of work for persons with such physical condition and at the employee’s age”; General Statutes (Rev. to 1987) § 31-308a; the commissioner’s award determination is confined to the consideration of such enumerated factors. The plaintiff further argues that disability retirement benefits should not be considered toward a claimant’s “ ‘earnings’ ” or their “ ‘earning power,’ ” and thus, should not be taken into consideration in calculating a § 31-308a award.
The defendant relies on the review board’s decision in Iannarone v. Dept. of Mental Retardation, supra, 4138 CRB-7-99-10, as well as its decision in the companion case, Starks v. University of Connecticut, 4467 CRB-2-02-12 (February 13, 2003), in which the review board determined that a claimant’s § 31-308a award should take into consideration any state disability retirement benefits the claimant is receiving in order to avoid a double recovery. The defendant contends that the review board’s interpretation of § 31-308a was proper, particularly in light of the instruction of § 31-314 to make “due allowance . . . for any sum which the employer has paid to any injured employee . . . .” The defendant also argues that, because § 3 l-308a benefits are purely discretionary; see General Statues (Rev. to 1987) § 31-308a (“the commissioner . . . may award additional compensation benefits” [emphasis added]); a commissioner has very broad discretion in determining a § 31-308a award, and is therefore not confined solely to the enumerated factors set forth in the statute.11
[40] Our decision in Starks v. University of Connecticut, supra, 270 Conn. 1, is dispositive of this claim. For the reasons set forth in that case, we conclude that the legislature explicitly has provided for an offset mechanism under either under § 5-169 (g),12 which [41] governs Tier I retirees, or § 5-192p (d),13 which governs Tier II retirees, and therefore benefits awarded under § 31-308a need not be offset by a claimant’s receipt of state disability retirement benefits.14
[42] The decision of the review board is reversed and the case is remanded for recalculation of the plaintiffs § 31-308a benefits award.
In this opinion the other justices concurred.
“(b) With respect to the following-described injuries the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be sixty-six and two-thirds per cent of the average weekly earnings of the injured employee, but in no case more than the maximum weekly benefit rate set forth in section 31-309, or less than twenty dollars weekly . . . .”
“(1) The disability benefit provided under this section shall not exceed one hundred per cent of the member’s base salary or the rate of salary of the member on his date of disability, whichever is greater, less any periodic cash benefit payments being made to a member under the Workers’ Compensation Act, less any federal disability Social Security benefits, including primary and family, paid on account of the member’s Social Security earnings history, less all outside earned salary or wages, unless the Retirement Commission determines that such salary or wages are being paid as part of the rehabilitation of the disabled member. Any such determination that such earned salary or wages is for rehabilitation must be reapproved by the Retirement Commission no less frequently than every eighteen months, or the offset shall apply. The offset for workers’ compensation and federal Social Security disability benefits shall apply when such benefits commence even if such benefits initially commence after the member’s disability retirement date.
“(2) The disability benefit provided under this section shall not exceed eighty per cent of the member’s base salary or the rate of salary of the member on the date of disability, whichever is greater, less any periodic cash benefit payments being made to a member under the Workers ’ Campen[41] sation Act, less any federal disability Social Security benefits, including primary and family, being paid on account of the member’s Social Security earnings history. The offsets shall apply when such benefits commence even if such benefits initially commence alter the member’s disability retirement date.” (Emphasis added.)
“(1) The disability benefit provided under this subsection shall not exceed (A) one hundred per cent of the member’s final average earnings or the rate of salary of the member on date of disability, whichever is greater, less (B) any periodic cash benefit payments being made to a member under the Workers ’ Compensation Act, less (C) any federal disability Social Security benefits both primary and family paid on account of the member’s Social Security earnings history less (D) all outside earned salary or wages unless the Retirement Commission determines that such salary or wages are being paid as part of the rehabilitation of the disabled member. Any such determination that such earned salary or wages is for rehabilitation must be reap-proved by the Retirement Commission no less frequently than every eighteen months, or the offset shall apply. The offset for workers’ compensation and federal Social Security disability benefits shall apply when such benefits commence even if such benefits initially commence after the member’s disability retirement date.
“(2) The disability benefit provided under this subsection shall not exceed (A) eighty per cent of five greater of the member’s final average earnings or the rate of salary of the member on the date of disability, less (B) any periodic cash benefit payments being made to a member under the Workers ’ Compensation Act, less (C) any federal disability Social Security benefits, both primary and family being paid on account of the member’s Social Security earnings history. The offsets shall apply when such benefits commence even if such benefits initially commence after the member’s disability retirement date.” (Emphasis added.)