author: ALVORD, J.

text:
    LAURA LANGELLO v. WEST HAVEN BOARD OF EDUCATION
    (AC 34206)
    Alvord, Bear and Sheldon, Js.

      Argued December 13, 2012
    officially released April 30, 2013

      John R. Williams, for the appellant (plaintiff).

      Warren L. Holcomb, for the appellee (defendant).
   Opinion

ALVORD, J.

The plaintiff, Laura Langello, appeals from the judgment of the trial court affirming the decision of the defendant, the West Haven board of education (board), to terminate her employment contract. The plaintiff, a tenured teacher in the West Haven public school district, claims that the court failed to give sufficient weight to General Statutes (Rev. to 2009) § 46a-60 (Fair Employment Practices Act) when it affirmed the board’s decision to terminate the plaintiffs employment contract on the grounds of “disability” and “other due and sufficient cause” as set forth in General Statutes § 10-151 (Teacher Tenure Act). We disagree and, accordingly, affirm the judgment of the trial court.

The record reveals the following procedural history pursuant to § 10-151 (d). By letter dated January 11, 2010, Neil C. Cavallaro, the superintendent of schools for the town of West Haven, informed the plaintiff that termination of her employment contract with the West Haven public schools was under consideration. The letter informed her that further proceedings would occur in accordance with § 10-151. The plaintiff responded by letter dated January 15, 2010, seeking a statement of the reason why the board was considering terminating her employment contract. In a letter dated January 20, 2010, Cavallaro responded to the plaintiff by setting forth several reasons why the termination of her employment contract was being recommended pursuant to criteria set forth in § 10-151 (d), namely, inefficiency and/or incompetence, disability, and other due and sufficient cause. In a letter dated January 29, 2010, the plaintiff requested a hearing before a single impartial hearing officer chosen by the plaintiff and Cavallaro.

An impartial hearing officer, whom the parties selected, conducted a six day hearing concerning the termination of the plaintiffs employment contract on February 24, March 19, 26 and 31, and April 1 and 2, 2010. The hearing officer issued a decision on April 28, 2010, recommending termination of the plaintiffs employment contract. In a letter dated May 4, 2010, Cavallaro informed the plaintiff that the board had adopted the findings of fact, conclusions and recommendations of the hearing officer and, accordingly, terminated the plaintiffs employment contract.

On May 21, 2010, the plaintiff filed a complaint with the Superior Court, pursuant to § 10-151 (e), appealing from the board’s decision to terminate her employment contract. In a hearing conducted before the court on September 21, 2011, the board indicated that it would be relying solely on “disability” and “other due and sufficient grounds” as the bases for the termination of the plaintiffs employment contract. (Internal quotation marks omitted.) The court dismissed the plaintiffs appeal in a memorandum of decision on December 27, 2011. This appeal followed.

The following facts, which were found by the hearing officer and adopted by the board, are relevant to this appeal. The plaintiff was a tenured elementary instrumental music teacher who was employed by the board. Throughout most of her career, the plaintiff has suffered from numerous health conditions, including post-traumatic stress disorder, depression, anxiety and sleep and mood disorders. She also has a nonmaiignant brain cyst and suffers from chronic allergies and a pulmonary condition. These medical conditions have caused the plaintiff to be hospitalized five or six times over the past five years, and she has planned to commit suicide on several occasions. The plaintiff also has been forced to take several leaves of absence from her employment due to her medical conditions, resulting in a rate of absenteeism that is substantially higher than the average rate for teachers statewide and in West Haven.

In 1993, the plaintiff, who was employed as a West Haven schoolteacher, underwent a fitness for duty examination. The examination revealed that the plaintiff was not fit for duty because she appeared to be “confused,” “overwhelmed” and to have “difficulty in performing even the simplest task around the house.” (Internal quotation marks omitted.) In 1994, the plaintiff worked only twenty hours per week as a scheduling accommodation, and the next year a full-time paraprofessional was assigned to assist the plaintiff with the transition back to full-time employment. The accommodation of a full-time paraprofessional to assist the plaintiff continued until the termination of the plaintiffs employment contract more than fourteen years later. Throughout those fourteen years, the plaintiff divided her time between two different schools within the district. During that period, Cavallaro and the school principals under whom the plaintiff worked reported concerns that the plaintiff had a “glassy eyed stare,” and looked “exhausted,” “heavily medicated,” “zombie-like,” “slower than normal,” “dazed and confused” and “unfocused if not disoriented.” (Internal quotation marks omitted.) Some of these concerns arose as a result of observations made at a winter concert led by the plaintiff, during which she slurred her words, forgot the names of students, announced the incorrect titles to songs and temporarily forgot the name of the paraprofessional with whom she had worked closely for six years.

During the time between when the plaintiff began receiving assistance from a full-time paraprofessional and when the board decided to terminate the plaintiffs employment contract, there was a decrease in the number of students participating in the plaintiffs band class and an increase in the number of parents who complained about the plaintiff. The parents’ complaints ranged from the inadequacy of her teaching ability to allegations by the students that she would fall asleep during class. In fact, the hearing officer found that there had been more complaints about the plaintiff than any other teacher in West Haven. Teachers and one of the school principals expressed concerns because the plaintiff would drop things, trip, aimlessly wander the hallways and forget to notify a substitute teacher when she was absent. Further, her attendance was erratic, and she frequently was tardy in arriving to teach her class.

Several specific instances of conduct also caused concern. In one instance, the plaintiff dismissed early the entire middle school band class, which consisted of approximately forty students, because she thought several students were misbehaving. The school nurse found the dismissed students wandering around the school crying and emotionally distraught. The school principal thought the plaintiffs actions created a dangerous situation. In another instance, the principal, who was observing the plaintiffs class, stopped the plaintiff from dismissing class prematurely and had to inform her that twenty minutes remained in the period. In a third instance, the plaintiff was found sleeping in her car in the parking lot before school. In a fourth instance, the plaintiff drove to the wrong school and waited for an hour until the principal of that school asked her why she was there when she was scheduled to be at a different school one-half mile away. The plaintiff replied that she was running out of gas and had locked her keys in her car. The principal agreed to assist her, noticed that the rear door of her car was unlocked and retrieved the plaintiffs keys from inside the car. Concerned about the plaintiffs mental state, the principal directed her to wait for someone from the other school to come and pick her up. Instead, the plaintiff left in her car and arrived at the proper school one-half mile away twenty minutes later.

On May 7, 2009, approximately two weeks after the incident when the plaintiff drove to the wrong school and mistakenly thought she had locked her keys in her car, the plaintiff looked ill. The principal directed her to go home and not to return that evening for the spring concert. The plaintiff went home, but then attempted to return for the concert and was involved in a car accident. Due to the accident of May 7, 2009, and the instance that occurred two weeks prior, Cavallaro ordered the plaintiff to submit to a fitness for duty assessment, hi addition to an assessment of her physical condition, the plaintiff was required to submit to a psychiatric fitness for duty assessment, which was performed by psychiatrist Remo Fabbri. In conducting his assessment, Fabbri spoke with the plaintiff, her psychiatrist, her personal psychotherapist and her general practitioner. Fabbri also arranged for the plaintiff to undergo a neuropsychological exam with Armin Thies, a board certified clinical neuropsychologist.

Thies found that the plaintiff had a markedly deficient capacity to retrieve and store information and a depressed executive functioning, which manifested itself in marginally slower processing speed, loss of mental set and difficulty alternating between sequences. Thies found that the plaintiff was mildly mentally deficient with regard to declarative memory and that she had particularly poor organizational skills. He also found that the plaintiff, despite her education level, scored in the lowest one percentile range in several tests: reading comprehension; maintaining mental set; organization; visual working memory; and auditing, visual, immediate and delayed memory. Thies concluded that the plaintiff had poor concentration, poor memory and difficulty managing routine affairs. The plaintiff’s treating psychiatrist did not dispute Thies’ findings; he opined that the plaintiff is disabled and that her conditions are not likely to improve.

Fabbri’s assessment was that the plaintiffs psychiatric prognosis did not appear likely to improve. He noted the aggressive psychiatric regimen the plaintiff had been under and the extensive medical treatment she had received. Initially, he believed that the plaintiff would be able to return to work, but he concluded that she was not fit for duty, stating: “Therefore, in the best interests of all concerned, and after thinking and re-thinking this complicated situation, I would suggest that [the plaintiff], in view of her multiple medical disabilities and syndromes ... be offered an early retirement package . . . .” The hearing officer recommended that the plaintiffs employment contract be terminated, and the board adopted that recommendation. This appeal followed.

Additional facts will be set forth as necessary.

I

In the board’s brief to the trial court, it contended that “there is absolutely no jurisprudence to support [the] plaintiffs contention that the Teacher Tenure Act was intended to be read in conjunction with the [Americans with Disabilities Act (ADA) (42 U.S.C. § 12101 et seq.)] or the Connecticut Fair Employment Practices Act . . . .” At the September 21, 2011 hearing before the court, however, the board conceded that it was required to make reasonable accommodations to the plaintiff due to her physical and mental condition because such accommodation is required by the ADA. On appeal, the board maintains the position it took at the September 21, 2011 hearing and further concedes that the Teacher Tenure Act must be read in conjunction with the Fair Employment Practices Act. The plaintiffs argument, which is identical to the argument she advanced at trial, does not contest that the board complied with its obligation to make a reasonable accommodation; the plaintiff concedes that the board did provide her with a reasonable accommodation. Rather, her argument is that the board improperly terminated her employment contract because she was able to perform the essential functions of her job with the assistance of the accommodation that the board provided.

Although both parties stipulate that the termination of a tenured teacher’s employment pursuant to the Teacher Tenure Act is subject to the restrictions and procedures mandated by the Fair Employment Practices Act, the manner in which the two acts coexist is an issue of first impression for this court. Additionally, the interplay of the Teacher Tenure Act and the Fair Employment Practices Act is an essential predicate to addressing the plaintiffs claim on appeal. We are therefore compelled to conduct the following analysis.

“When ... a statutory provision is silent with respect to [the issue at hand], our analysis is not limited by [General Statutes] § l-2z, which provides that the meaning of statutes shall be ascertained from only their text and their relationship to other statutes if those sources reveal an unambiguous meaning that is not absurd or unworkable. ... In addition to the words of the statute itself, we look to . . . the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) Curry v. Goodman, 286 Conn. 390, 407, 944 A.2d 925 (2008). “Furthermore, it is an elementary rule of statutory construction that we must read the legislative scheme as a whole in order to give effect to and harmonize all of the parts. . . . When statutes relate to the same subject matter, they must be read together and specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling.” (Citation omitted; internal quotation marks omitted.) Coregis Ins. Co. v. Fleet National Bank, 68 Conn. App. 716, 720, 793 A.2d 254 (2002).

“It is axiomatic that Connecticut adheres to a public policy prohibiting discrimination on the basis of disabilities. Such a policy is embodied in General Statutes § 46a-60 (a) (1), which prohibits discrimination because of [an] individual’s . . . present or past history of mental disability ... or physical disability . . . .” (Internal quotation marks omitted.) International Brotherhood of Police Officers, Local 361 v. New Milford, 81 Conn. App. 726, 735, 841 A.2d 706 (2004). Our Supreme Court has stated that “[t]he legislative history of the [fair employment practices] act indicates that the statute was intended to provide strong protections for those with disabilities”; Curry v. Goodman, supra, 286 Conn. 410-11; and that a “thorough review of the legislative history reveals a consistent intent to increase protections for individuals with disabilities.” Id., 412. Because “the intent of the legislature [was] to stamp out discrimination on the basis of physical disability and a wide range of other disabilities (mental disability, learning disability and [intellectual disability]), we must not interpret the statute in a way that would thwart this purpose.” Id.

Our Supreme Court “has determined that Connecticut antidiscrimination statutes should be interpreted in accordance with federal antidiscrimination laws.” Id., 407. While certain elements of the Fair Employment Practices Act and the ADA differ, “[c]laims for violations of the [Fair Employment Practices Act] are analyzed under the same standards as claims for violations of the ADA.” Chasse v. Computer Sciences Corp., 453 F. Sup. 2d 503, 514 n.4 (D. Conn. 2006). “[Discrimination on [the] basis of [a] disability under [the] ADA includes not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” (Internal quotation marks omitted.) Curry v. Goodman, supra, 286 Conn. 408. “Under the ADA, a qualified individual with a disability is one who is capable of performing the essential functions of the desired job with or without reasonable accommodation.” Id., 402 n.8. In Curry, the court concluded that the legislative intent with regard to the Fair Employment Practices Act requires “employers to make a reasonable accommodation for an employee’s disability,” despite no such language in the statute’s text. See id., 415.

In keeping with the public policy that prohibits discrimination on the basis of disability, and our Supreme Court’s analysis of the legislative intent behind § 46a-60 (a) (1), we conclude that any teacher who is terminated pursuant to the Tenure Teacher Act enjoys the protections of the Fair Employment Practices Act. A contrary conclusion—that a tenured teacher who is discharged from her employment because of her disability pursuant to § 10-151 (d) (4) is outside of the protections of § 46a-60—would thwart the purpose of the Fair Employment Practices Act. To ensure compliance with the purpose of the Fair Employment Practices Act, a teacher who is discharged for any of the reasons enumerated in § 10-151 (d) must be afforded the protections of § 46a-60. A board of education, |f it seeks to terminate a teacher’s employment pursuant to the Teacher Tenure Act for reason of a disability, must follow the mandates of the Fair Employment Practices Act and show that the teacher was unable to perform the essential functions of her profession with or without reasonable accommodation.

II

Having determined that the board was required to prove that the plaintiff was unable to perform the essential functions of her profession with or without reasonable accommodation, we turn to the issue of whether the board provided the requisite proof in this case. As both grounds on which the Superior Court affirmed the board’s decision to terminate the employment of the plaintiff are subject to compliance with the Fair Employment Practices Act, the question of whether the plaintiff could perform the essential functions of an elementary level instructional music teacher with the assistance of a full-time paraprofessional is dispositive to this appeal.

The following additional facts, which were found by the hearing officer, are relevant to the issue of whether the plaintiff could perform the essential functions of her job with the accommodation of a full-time paraprofessional. The plaintiff received the accommodation of working with a full-time paraprofessional from 1996 until the time of the termination of her employment contract. Misty Talamelli, who is not a certified teacher, served as the full-time paraprofessional assigned to assist the plaintiff from December, 2000 through June, 2009. In her role of assisting the plaintiff, Talamelli performed the following duties: scheduled students’ rehearsal times; arranged concerts; arranged field trips; collected money; graded work sheets; entered grades into the computer; calculated the students’ final grade; and, periodically, determined the grade a student should receive and taught the class when the plaintiff was absent.

The hearing officer found that the duties of an instrumental music teacher at the elementary level include compiling the music that students will use, working with the instrument company to secure instruments for the students, arranging the students’ schedule with other teachers, providing instrument instruction, preparing for concerts, recruiting students to band, preparing lesson plans and grading students’ work. The record also contains a list of the “Essential Duties and Responsibilities” for a “Teacher, Instrumental Music (Elementary).” Essential duties from this list were referenced in Fabbri’s assessment, which stated that the neuropsy-chological testing of the plaintiff indicated that four specific essential duties would present a challenge to her: (1) “[establishes and maintains standards of student behavior required to provide an orderly and productive environment”; (2) “[djevelops instructional plan and organizes class time to provide a balanced program of instruction, demonstration and working time”; (3) “[g]ives clear directions and makes sure students understand what to do before undertaking assignments”; and (4) “[c]onducts interesting and well-paced classes using a variety of instructional techniques and materials appropriate to the lessons.” (Internal quotation marks omitted.) The hearing officer credited the conclusion of Fabbri’s assessment in her determination.

The hearing officer also credited Thies, who stated that declarative memory is the type of memory most often relied on in school, occupations and daily functioning. Thies characterized the plaintiffs declarative memory as “particularly poor.” (Internal quotation marks omitted.) He further testified that the plaintiff would have “great difficulty learning novel material,” and opined that this would be problematic in a field that required continuous learning and professional development. (Internal quotation marks omitted.) Cavailaro echoed Thies’ opinion, stating that teachers regularly are expected to learn new material and methods for delivering instruction. Thies also predicted that the plaintiff would need to interrupt her work periodically because of the likelihood of necessary psychiatric hospitalization in the future.

The hearing officer found that the plaintiff failed to perform some of the most basic duties of an instrumental music teacher, such as recruiting students to participate in band and communicating with parents. Additionally, the school principals expressed concern about the plaintiffs ability to perform the essential functions of her job, with one estimating that the full-time paraprofessional, Talamelh, performed approximately 90 percent of the classroom teacher’s duties. One instance that supports that concern occurred when a principal of one of the schools requested to examine the plaintiffs lesson plans. In response to that request, the plaintiff provided him with a single sheet of paper spanning a six week time period. She also submitted a calendar with handwritten notes about the students’ activities. The principal stated that those documents did not meet the requirement that all teachers must maintain lesson plans. Further, Talamelli testified that she had prepared the lesson plans that the plaintiff submitted in response to the principal’s request. Caval-laro and the principal testified that it is a violation of state certification law for someone other than a certified teacher to prepare lesson plans.

The healing officer determined that the evidence of the plaintiffs mental disability established cause for the termination of her employment contract pursuant to § 10-151. The plaintiffs poor attendance, inability to provide proper instruction to her students, failure to make lesson plans, errors in judgment and troubling actions on several specific occasions supported the hearing officer’s determination that the board had ample justification to terminate the plaintiffs employment contract for other due and sufficient cause. See General Statutes § 10-151 (d) (6). Further, competent medical evidence about the plaintiffs disability and the essential functions of an elementary instrumental music teacher led the hearing officer to conclude that “[the plaintiffs] disabilities are interfering with her performance as a teacher [and] that she is unable to perform the essential functions of her position.” This determination was based on the opinion of a psychiatrist who “identified a number of the essential components of the teacher job description which he believed [the plaintiff] would experience difficulty performing.” Ultimately, the hearing officer concluded that “[t]he evidence in this record establishes that the [plaintiff] is disabled and that her disabilities have made her unable to perform the essential functions of her teaching position even with the accommodation of a full-time paraprofessional assistant.” The hearing officer therefore concluded that the board was justified in terminating the plaintiffs employment contract due to her disability. See General Statutes § 10-151 (d) (4).

“Judicial review of the school board’s administrative decision follows established principles of administrative law. The court’s ultimate duty is only to decide whether, in light of the evidence, the [board] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Conclusions of law reached by the [board] must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically flow from such facts.” (Internal quotation marks omitted.) Rogers v. Board of Education, 252 Conn. 753, 761, 749 A.2d 1173 (2000). “Judicial review of [a board’s] decision requires a court to determine whether there is substantial evidence in the administrative record to support the [board’s] findings of basic fact and whether the conclusions drawn from those facts are reasonable.” (Internal quotation marks omitted.) Id., 768.

The Teacher Tenure Act provides that a court reviewing an appeal from the decision of a hearing officer “may affirm or reverse the decision appealed from in accordance with subsection (j) of section 4-183 . . . .” General Statutes § 10-151 (e). “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. ...” General Statutes § 4-183 CD-_

The plaintiff contends that the decision to terminate her employment contract pursuant to § 10-161 (d) violated the statutory principles set forth in the Fair Employment Practices Act. The board’s decision to discharge the plaintiff pursuant to the Teacher Tenure Act complied with the mandates of the Fair Employment Practices Act. The board provided the plaintiff with a reasonable accommodation, and only sought termination of her employment once it determined she was unable to perform the essential functions of her job with that accommodation. The hearing officer considered the totality of the evidence and the specific facts of this case and concluded that the board properly could terminate the plaintiffs employment contract because she was unable to perform the essential functions of her job with the accommodation of a full-time paraprofessional. The trial court properly affirmed the board’s decision.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 2009) § 46a-60 (a) provides in relevant part: “It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer’s agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness . . . .”

       We note that § 10-151 has been amended several times since 2010. See Public Acts 2010, No. 10-111, § 9; Public Acts 2011, No. 11-28, § 8; Public Acts 2011, No. 11-135, § 10; Public Acts 2011, No. 11-136, § 14; Public Acts 2012, No. 12-116, § 57. The amendments in Public Acts 2012, No. 12-116, ■will take effect on July 1, 2014. Because these amendments are not relevant to the claims raised by the plaintiff, we refer in this opinion to the current revision of § 10-151.
      General Statutes § 10-151 (d) provides in relevant part: “The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for one or more of the following reasons: (1) Inefficiency or incompetence ... (2) insubordination against reasonable rules of the board of education; (3) moral misconduct; (4) disability, as shovm by competent medical evidence-, (5) elimination of the position to which the teacher was appointed or loss of a position to another teacher ... or (6) other due and sufficient cause. . . .” (Emphasis added.)

       General Statutes § 10-151 (d) provides in relevant part: “Prior to terminating a contract, the superintendent shall give the teacher concerned a written notice that termination of such teacher’s contract is under consideration and, upon written request filed by such teacher with the superintendent, within seven days after receipt of such notice, shall within the next succeeding seven days give such teacher a statement in writing of the reasons therefor. Within twenty days after receipt of written notice by the superintendent that contract termination is under consideration, such teacher may file with the local or regional board of education a written request for a hearing. A board of education may designate a subcommittee of three or more board members to conduct hearings and submit written findings and recommendations to the board for final disposition in the case of teachers whose contracts are terminated. Such hearing shall commence within fifteen days after receipt of such request ... if the parties mutually agree, before a single impartial hearing officer chosen by the teacher and the superintendent. . . . Within seventy-five days after receipt of the request for a hearing, the impartial hearing panel, subcommittee of the board or hearing officer, unless the parties mutually agree to an extension not to exceed fifteen days, shall submit written findings and a recommendation to the board of education as to the disposition of the charges against the teacher and shall send a copy of such findings and recommendation to the teacher. The board of education shall give the teacher concerned its written decision within fifteen days of receipt of the written recommendation of the impartial hearing panel, subcommittee or hearing officer. . . .”

       General Statutes § 10-151 (e) provides: “Any teacher aggrieved by the decision of a board of education after a hearing as provided in subsection (d) of this section may appeal therefrom, within thirty days of such decision, to the Superior Court. Such appeal shall be made returnable to said court in the same manner as is prescribed for civil actions brought to said court. Any such appeal shall be a privileged case to be heard by the court as soon after the return day as is practicable. The board of education shall file with the court a copy of the complete transcript of the proceedings of the hearing and the minutes of board of education meetings relating to such termination, including the vote of the board on the termination, together with such other documents, or certified copies thereof, as shall constitute the record of the case. The court, upon such appeal, shall review the proceedings of such hearing. The court, upon such appeal and hearing thereon, may affirm or reverse the decision appealed from in accordance with subsection CD of section 4-183. Costs shall not be allowed against the board of education unless it appears to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.”

       The record contains facts found by the hearing officer regarding the plaintiffs absenteeism over the course of a seventeen year period, which omits one year when the plaintiff was on administrative leave for the entire year and one year when data was unavailable. During those seventeen years, the plaintiff missed 667 days of work, an average of thirty-nine days per year. The hearing officer found that, “[according to records maintained by the Connecticut Department of Education, state-wide teachers average between 7.0 and 8.6 days of absence per year. The average in West Haven is slightly higher than the state average.”

       The heating officer found: “Mental set is the ability to remember what you are supposed to be doing, understanding abstract concepts, monitoring behavior and self performance. ... As Dr. Thies testified, executive function is responsible for regulating judgment and coordination of mental activities.”

       Title 42 of the United States Code, § 12112 (b), provides in relevant part: “[t]he term ‘discriminate’ includes ... (5) (A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity . . .

       See, e.g., Beason v. United Technologies Corp., 337 F.3d 271, 276-79 (2d Cir. 2003) (concluding that ADA requires that disability substantially limits one or more of individual’s major life activities, whereas Fair Employment Practices Act has no such requirement); id., 279-82 (explaining that Fair Employment Practices Act does not recognize perceived disability, whereas ADA does). Neither of the distinctions raised in Beason affect this case.

       The parties do not contest whether the hearing officer in this case utilized the proper framework for determining whether a prima facie claim of discrimination under the Fair Employment Practices Act was established. Thus, we do not have reason to decide whether this claim, that employment termination pursuant to § 10-151 (d) violated § 46a-60, should have been brought under the mixed motive/Pnce Waterhouse framework; Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989); or the pxetest/McDonnell Douglas-Burdine framework; Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); or, further, whether each of the enumerated reasons for termination pursuant to § 10-151 (d) would be brought within the same framework. See Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 104-109, 671 A.2d 349 (1996); Tomick v. United Parcel Service, Inc., 135 Conn. App. 589, 610-12, 43 A.3d 722, cert. denied, 305 Conn. 920, 47 A.3d 389 (2012). We therefore review the plaintiffs claim as though the proper burdens of production and persuasion were followed.

       The hearing officer noted that the plaintiffs personal psychiatrist believes that the plaintiff can perform these essential duties with the accommodation that the board has provided.

       These reasons also led the hearing officer to conclude that the board had ample justification to terminate the plaintiffs employment contract for inefficiency or incompetence. See General Statutes § 10-151 (d) (1). As previously noted, on appeal to the Superior Court, the board chose not to pursue its claim that the plaintiff was inefficient or incompetent.

       We note that § 4-183 (j) is within the Uniform Administrative Procedure Act (UAPA). See General Statutes § 4-166 et seq. Generally, “a board of education considering termination of a tenured teacher’s employment contract acts in a quasi-judicial capacity ... a board of education is not an administrative agency as defined by the Uniform Administrative Procedure Act (UAPA) . . . and is not subject to the provisions of the UAPA.” (Citations omitted.) Rogers v. Board of Education, supra, 252 Conn. 763-64. Although the board is not subject to every provision within the UAPA, § 10-151 (e) specifically prescribes that termination pursuant to § 10-151 (d)must conform with § 4-183 Q).

       The plaintiff argues that “[t]he problem for the [board] in this case is that neither the lower court nor the [b]oard itself even addressed the issue of what constitute[s] the ‘essential functions’ of an elementary school band teacher.” The plaintiff cites Borkowski v. Valley Central School District, 63 F.3d 131 (2d Cir. 1995), for the proposition that the board must produce sufficient evidence that a paraprofessional was unable to aid a teacher sufficiently in achieving the essential functions of her position. Id., 140-42. A review of the record reveals that the board did produce the requisite evidence in this case. Further, Borkowski vacated sufficiently the rendering of summary judgment for the board of education. Id., 134. It is axiomatic that the standard of review an appellate court affords a judgment rendered after a complete opportunity to litigate the issues differs from the review an appellate court affords a summary judgment.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    STEWART PETERSON v. COMMISSIONER OF CORRECTION
    (AC 33917)
    Beach, Alvord and Bishop, Js.
    officially released April 30, 2013

      Temmy Ann Pieszak, chief of habeas corpus services, with whom, on the brief, was Rebecca I. Bodner, assistant public defender, for the appellant (petitioner).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, chief state’s attorney, and Marcia A. Pillsbury, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

BISHOP, J.

In this certified appeal from the judgment denying a petition for a writ of habeas corpus, the petitioner, Stewart Peterson, claims that the court: (1) applied an improper legal standard in assessing the effectiveness of his trial counsel regarding the duty to adequately explain a plea offer from the state; (2) incorrectly assessed the effectiveness of his trial counsel regarding the duty to secure pretrial detention credit with respect to other charges then pending against the petitioner; and (3) improperly decided facts before the close of evidence. We affirm the judgment of the habeas court.

The habeas court’s memorandum of decision contains a helpful recitation of the relevant factual and procedural background of this habeas matter. The court found that “ [t]he petitioner was the defendant in a criminal case in the judicial district of Danbury under docket number CR-06-0125329 in which he was charged with criminal possession of a weapon in violation of General Statutes § 53a-217, illegal possession of a weapon in a motor vehicle in violation of General Statutes § 29-38, possession of narcotics in violation of General Statutes § 2 la-279 (a), and possession of an illegal substance by a nonstudent within 1500 feet of a school in violation of ... § 2la-279 (d). . . .

“About one month later, while out on bond on the weapons and narcotics charges, the petitioner was again arrested and in docket number CR-06-0125803 was charged with two counts of possession of narcotics in violation of General Statutes § 21a-279a, sale of illegal drugs in violation of General Statutes § 21a-278 (b), possession of drug paraphernalia in violation of General Statutes § 21a-267 (a), and violation of traffic control signals in violation of General Statutes § 14-299. . . . The petitioner was represented in both matters by attorney Joseph Dimyan. . . .

“On August 2, 2006, the prosecutor made the petitioner an offer that would have disposed of both cases with a total effective sentence of seven years suspended after three, with probation following. The petitioner was given until September 20, 2006, to consider the offer. The petitioner rejected the offer and the cases were placed on the firm jury docket on September 27, 2006. . . .

“On October 23, [2006] while awaiting trial, the petitioner was again arrested and in docket number CR-06-0127604 he was charged with two counts of possession of narcotics in violation of ... § 21a-279 (a), possession of drug paraphernalia in violation of ... § 2 la-267 (a), sale of illegal drugs in violation of . . . § 2 la-278 (b), possession of a controlled substance in violation of ... § 21a-279 (c), and operating [a motor vehicle while his license was] under suspension in violation of General Statutes § 12-215. . . .

“The petitioner then proceeded to a jury trial on CR-06-0125329 and was convicted of criminal possession of a weapon and illegal possession of a weapon in a motor vehicle, and was found not guilty of the remaining charges.

“On January 17, 2007, the trial court, Thim, J., sentenced the petitioner to five years to serve on each charge to run consecutively with each other, for a total effective sentence of ten years to serve. . . .

“Also on January 17, 2007, the petitioner [pleaded] guilty and was sentenced on both of his remaining criminal files. In CR-06-0125803, the petitioner pleaded guilty to one count of possession of narcotics and the trial court, Mintz, J., sentenced him to seven years to be served concurrently with the sentenced imposed in CR-06-0125329. In CR-06-0127604, the petitioner pleaded guilty to one count of possession of narcotics and was sentenced to three years, to be served consecutively to the sentence he received in CR-06-0125803 and concurrently to the sentence he received in CR-06-0125329, for a total effective sentence of ten years concurrent with the ten year sentence imposed after trial in CR-06-0125329.”

On February 3, 2011, the petitioner filed an amended petition for a writ of habeas corpus, in which he alleged that he had been deprived of his constitutional right to the effective assistance of counsel in the underlying criminal proceedings, on the ground that Dimyan had failed to advise him adequately in regard to the state’s plea offer in docket numbers CR-06-0125329 and CR-06-0125803. He also alleged that Dimyan had been ineffective by failing to ask the court to set bond on the files on which he was arrested while already in custody, thus depriving him of the benefit of pretrial detention credits on the later charged files to which he subsequently pleaded guilty. The trial of this habeas matter tookplace onMarch 11,2011. After hearing the evidence and receiving posttrial briefs from counsel, the court issued its memorandum of decision on August 26,2011, denying the petition. On September 9, 2011, the habeas court granted the petitioner’s petition for certification to appeal. This appeal followed.

Opinions from the United States Supreme Court and our Supreme Court guide our analytical path. “When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . The issue, however, of [w]hether the representation [that] a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. Strickland v. Washington, [466 U.S. 668, 698, 104 S. Ct. 2062, 80 L. Ed. 2d 674 (1984)]. As such, that question requires plenary review by this court unfettered by the clearly erroneous standard. . . . Under the Strickland test, when a petitioner alleges ineffective assistance of counsel, he must establish that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. . . . Furthermore, because a successful petitioner must satisfy both prongs of the Strickland test, failure to satisfy either prong is fatal to a habeas petition. . . .

“To satisfy the first prong, that his counsel’s performance was deficient, the petitioner must establish that his counsel made errors so serious that [counsel] was not functioning as the counsel guaranteed the [petitioner] by the Sixth Amendment. . . . The petitioner must thus show that counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. ... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. [Id.] 689. Furthermore, the right to counsel is not the right to perfect counsel.” (Citations omitted; internal quotation marks omitted.) Axel D. v. Commissioner of Correction, 135 Conn. App. 428, 432-33, 41 A.3d 1196 (2012).

“To determine whether trial counsel’s performance fell below an objective standard of reasonableness and whether the petitioner was therefore prejudiced, we must consider the nature of the underlying claim.” Id. Although there had been some debate about whether the constitutional right to the effective assistance of counsel applies to the rejection of a plea offer by the government, it is now well settled that a criminal defendant has the right to the effective assistance of counsel in conjunction with the acceptance or rejection of a plea offer. See Missouri v. Frye, U.S. , 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012) (establishing right to effective assistance leading to rejection of plea offer); Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) (establishing right to effective assistance leading to acceptance of plea offer).

Although affirming a defendant’s constitutional right to the effective assistance of counsel at the plea negotiations stage of criminal proceedings, our courts have nevertheless been reluctant to elaborate on attorney behaviors that may or may not constitute ineffectiveness. In Ebron v. Commissioner of Correction, 120 Conn. App. 560, 572, 992 A.2d 1200 (2010), rev’d on other grounds, 307 Conn. 342, 53 A.3d 983 (2012), this court observed: “[P]lea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts. . . . Commentators have estimated that between 80 and 90 percent of criminal cases in Connecticut result in guilty pleas, the majority of which are the product of plea bargains. . . . Thus, almost every criminal defendant is faced with the crucial decision of whether to plead guilty or proceed to trial. Although this decision is ultimately made by the defendant, the defendant’s attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies heavily upon counsel’s independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial. . . . Indeed, the United States Court of Appeals for the Second Circuit has described the decision to plead guilty as ordinarily the most important single decision in any criminal case. . . . Boria v. Keane, 99 F.3d 492, 496-97 (2d Cir. 1996), cert. denied, 521 U.S. 1118, 117 S. Ct. 2508, 138 L. Ed. 2d 1012 (1997). It further stated that [ejffective assistance of counsel includes counsel’s informed opinion as to what pleas should enter.” (Citations omitted; emphasis in original; internal quotation marks omitted.)

As to the parameters of counsel's advice to a defendant, this court, in Vazquez v. Commissioner of Correction, 123 Conn. App. 424, 437, 1 A.3d 1242 (2010), cert. denied, 302 Conn. 901, 23 A.3d 1241 (2011), commented: “Prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered. Determining whether an accused is guilty or innocent of the charges in a complex legal indictment is seldom a simple and easy task for a layman, even though acutely intelligent. ... A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable.” (Citation omitted; internal quotation marks omitted.)

In Vazquez, this court said, as well: “On the one hand, defense counsel must give the client the benefit of counsel’s professional advice on this crucial decision of whether to plead guilty. ... As part of this advice, counsel must communicate to the defendant the terms of the plea offer . . . and should usually inform the defendant of the strengths and weaknesses of the case against him, as well as the alternative sentences to which he will most likely be exposed .... On the other hand, the ultimate decision whether to plead guilty must be made by the defendant. . . . And a lawyer must take care not to coerce a client into either accepting or rejecting a plea offer. . . . Counsel’s conclusion as to how best to advise a client in order to avoid, on the one hand, failing to give advice and, on the other, coercing a plea enj oys a wide range of reasonableness because [representation is an art . . . and [t]here are countless ways to provide effective assistance in any given case .... Counsel rendering advice in this critical area may take into account, among other factors, the defendant’s chances of prevailing at trial, the likely disparity in sentencing after a full trial as compared to a guilty plea (whether or not accompanied by an agreement with the government), whether defendant has maintained his innocence, and the defendant’s comprehension of the various factors that will inform his plea decision.” (Internal quotation marks omitted.) Id., 438. With these statements of the applicable decisional law in mind, we turn, now, to the petitioner’s claims of ineffectiveness of counsel.

I

The petitioner first claims that in assessing his claims regarding Dimyan’s failure to advise him adequately in conjunction with the state’s plea offer, the court utilized an improper standard. We disagree.

In its memorandum of decision, the court characterized the plaintiffs claim as Dimyan’s failure to persuade him to accept the state’s offer and determined that, in fact, Dimyan did attempt to persuade the petitioner to accept the offer. The petitioner claims, and we agree, that counsel’s obligations during plea negotiations extend beyond advising or even urging a defendant whether to take a plea offer and that counsel has a countervailing obligation not to coerce a client into accepting a plea offer. In his attention to the court’s characterization of his claim as a failure to persuade him to accept the state’s offer, however, the petitioner has ignored the court’s significant and dispositive findings that Dimyan adequately explained both the plea offer and the petitioner’s chances at trial.

At the outset, we note that the petitioner testified that Dimyan had explained the state’s offer to him. He protested, however, when asked if Dimyan had told him what his chances of winning at trial might be. The court observed that when asked, the petitioner stated: “ ‘Not to the fullest extent, no.’ ” The court noted, as well, that the petitioner claimed that Dimyan did not discuss the strength or weakness of the state’s case or go over any of the state’s evidence against him. The court further noted: “Attorney Dimyan, on the other hand, testified that the state proposed the offer of seven years, suspended after three, with five years of probation after the petitioner was dropped by an alternative incarceration program for being noncompliant. Attorney Dimyan stated that he immediately discussed the offer with the petitioner, adding: ‘And, then I continually discussed it with him because the last thing I wanted to do was try the case because if we won the first arrest which went to trial. . . my concern was they were going to convict him on the subsequent arrest.’ Attorney Dimyan believes that he may have even told the petitioner that he ‘didn’t have a snowball’s chance in hell’ of beating all the charges against him at trial. In addition, he claims that he tried to get the petitioner to accept the offer to the point where he even spoke to the petitioner’s mother, hoping that she could convince him to take the plea. Attorney Dimyan also testified that he informed the petitioner that there was a ‘good likelihood’ that he would end up with a jail sentence of double digits if he were to be convicted. Finally, Attorney Dimyan testified: ‘Clearly, there is no doubt in my mind that I advised him, that I encouraged him, that if there was any way to strong-arm him I would have. I couldn’t have made it any more clear. It was my advice to take that offer. And there is no doubt in my mind he was part of that conversation on more than one occasion.’ ”

In assessing this conflicting evidence, the court concluded that the petitioner’s claims were “simply not credible. The court credits Attorney Dimyan’s testimony that he expressed his concern that the petitioner could not realistically prevail at trial on all of the charges against him, and that he did everything short of ‘strong-arming’ the petitioner into accepting the state’s offer.” As we have often said, it is uniquely the function of the trial court, and not a court on review, to assess the credibility of witnesses. Here, although the court may have focused on Dimyan’s persuasive role in regard to plea negotiations, the court credited, as well, testimony that Dimyan explained the proposed plea bargain to the petitioner and the great likelihood that the petitioner could not defeat all the charges then pending against him. We agree with the court that Dimyan’s advice to the petitioner in regard to the state’s offer was constitutionally adequate. From our review of the court’s memorandum of decision and the record, it is clear that the court was satisfied that Dimyan had adequately explained the charges against the petitioner to him, had weighed his prospects for success in a global manner with regard to all the charges and had communicated his advice without equivocation that the petitioner should plead guilty pursuant to the terms of the plea offer rather than risk trial and the near certainty that he would be convicted of at least some of the charges, resulting in a likely sentence greater than the state’s offer. On this basis, the court concluded, and we agree, that Dimyan’s assistance regarding plea negotiations was not constitutionally infirm.

II

The petitioner makes the second claim that Dimyan’s failure to secure a court order requiring the petitioner to post bond in the two files arising after he already was in custody caused him to lose presentence confinement credit on the two last charged files. During the habeas trial, Dimyan testified that he was aware of this issue during his representation of the petitioner and he utilized the petitioner’s custody and bond status in his conversations with the prosecutor in negotiating a plea agreement regarding the latter charges. In response to this claim, the court found: “Attorney Dimyan’s efforts to use the jail credit as a bargaining chip during the plea negotiations falls within the wide range of reasonable professional assistance and . . . the petitioner has failed to show that Attorney Dimyan’s actions were anything other than sound trial strategy.” We find no fault with the court’s assessment of this claim.

m

Finally, the petitioner claims that the habeas court’s judgment must be reversed because the court made a factual finding before the close of evidence. We are not persuaded.

The following additional facts are relevant to this claim. One of the petitioner’s claims regarding Dimyan’s effectiveness was that he did not adequately explain to him the law regarding the possession of a weapon in a motor vehicle, and, thus, the petitioner was not able to make an informed decision as to whether to accept the state’s offer or to proceed to trial. During the habeas hearing, the petitioner’s habeas counsel asked Dimyan, on cross-examination, whether he had explained the doctrine of constructive possession to the petitioner. Dimyan responded that, although he could not recall the specific content of the conversation, he had discussed the doctrine in laymen’s terms with the petitioner. The petitioner’s counsel then asked Dimyan, “[n]ow at [the criminal] trial you argued to the jury about the doctrine of [nonexclusive possession].” The state objected to the question on the basis of relevance. The petitioner’s counsel stated: “This goes to Mr. Dim-yan’s legal understanding of the doctrine and whether he explained it.” The court responded: “Well, let’s get to part two rather than go through all of part one. We understand he understands his legal doctrine.” As pointed out by the respondent, the commissioner of correction, in the appellate brief, the petitioner’s counsel did not object to the court’s comment. Rather, in response to further questioning by the petitioner’s counsel, Dimyan explained his understanding of the doctrine but could not recall whether he had argued the issue of nonexclusive possession to the jury in the underlying criminal trial.

On the basis of the court’s remark during this colloquy, the petitioner argues that the court acted improperly in determining a fact before the conclusion of trial. Whether such conduct, if it occurred, would be fatal to a fair trial is a question we need not answer in this instance as the issue is not subject to review. Not only did the petitioner not object to the court’s remark, but also his habeas counsel took no action to bring to the court’s attention his view that the court had acted improperly. Additionally, and as argued by the respondent, the court’s remark, in isolation, does not necessarily imply that the court made a factual finding regarding Dimyan’s knowledge of the law, but rather the court’s comment can fairly be seen as a sign of the court’s disinterest in the issue at that juncture of the hearing. Importantly, if the petitioner believed that the court’s comment reflected a predisposition regarding the merits of his claim, it was his duty then to bring this issue to the attention of the habeas court for the court’s explanation and not hold it in abeyance for appeal. As we have previously stated: “It is our long-standing position that [t]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) Cima v. Sciaretta, 140 Conn. App. 167, 179, 68 A.3d 346 (2013). This we will not do.

The judgment is affirmed.

In this opinion the other judges concurred.

Argued January 23

       The petitioner claims, as well, that the habeas trial evidence irrefutably demonstrates that his trial counsel was ineffective. Our response to this claim is included in our treatment of the petitioner’s claim regarding the standard applied by the court in assessing his habeas claim.

       As part of the petitioner’s claim that the habeas court applied the wrong standard in determining whether Dimyan’s performance was deficient, he also argues the proper remedy where a petitioner proves that his counsel rendered ineffective assistance in connection with a plea offer. Because we conclude that the court properly rejected the petitioner’s claim that Dimyan rendered ineffective assistance in regard to the plea offer, we need not address the petitioner’s argument as to the proper remedy. We note, however, that our analysis in that regard would be guided by our Supreme Court’s recent decision in Ebron v. Commissioner of Correction, 307 Conn. 342, 53 A.3d 983 (2012).

      Argued January 23


author: LAVINE, J.

text:
    RONALD F. GILL, JR. v. BRESCOME BARTON, INC., ET AL.
    (AC 34749)
    Lavme, Alvord and Harper, Js.

      Argued January 22
    officially released April 30, 2013

      Marian H. Yun, for the appellant (defendant Liberty Mutual Insurance Group).

      Michael J. Finn, with whom was Philip Markuszka, for the appellee (defendant Chubb & Son).
   Opinion

LAVINE, J.

In this workers’ compensation action, the defendant insurance carriers (insurers) for the named defendant, Brescóme Barton, Inc. (employer), contest their rights of apportionment, if any, for indemnity benefits paid to the plaintiff, Ronald F. Gill, Jr. The defendant Liberty Mutual Insurance Group (Liberty Mutual) appeals from the decision of the workers’ compensation review board (board) affirming the finding and award of the compensation commissioner that it reimburse the defendant Chubb & Son (Chubb) 50 percent of the temporary total disability payments (indemnity) paid to the plaintiff following his bilateral knee replacement surgery. On appeal, Liberty Mutual claims that the board (1) applied an incorrect standard of review, (2) drew illegal or unreasonable inferences from the commissioner’s findings of fact regarding an agreement between the insurers, (3) substituted its inferences for those drawn by the commissioner, (4) exceeded its authority by retrying the facts, (5) failed to adhere to the doctrine of stare decisis and (6) improperly affirmed the commissioner’s finding and award that it pay 50 percent of the plaintiffs indemnity (a) on the basis of the facts and (b) as a matter of law. We affirm the decision of the board.

The commissioner found the following facts concerning the plaintiffs injuries, which the insurers do not dispute. The plaintiff sustained an injury to his left knee that arose out of and in the course of his employment on July 2, 1997 (first injury). The plaintiff, employer and Liberty Mutual entered into a voluntary agreement as to the plaintiffs permanent partial disability rating. Attached to the voluntary agreement is an office note dated April 10, 2008, from Norman R. Kaplan, the plaintiffs treating orthopedic surgeon. Kaplan stated in the note that the plaintiffs condition had worsened since 2003 and that he “will definitely need a total knee replacement” within the next three to five years. On April 3, 2002, the plaintiff sustained an injury to his right knee that arose out of and in the course of his employment (second injury). The employer, who was then insured by Chubb, accepted the second injury.

The commissioner found that the plaintiff was scheduled for bilateral knee replacement surgery (surgeries) pursuant to the recommendation of his physician and that the insurers agreed that the surgeries were reasonable and medically necessary. Pursuant to an agreement dated March 10, 2010 (2010 agreement), the insurers agreed that Chubb would authorize and administer the surgeries and that Liberty Mutual would reimburse Chubb 50 percent of the surgical costs, incidental expenses and prescriptions related to the surgeries.

The commissioner also found that the plaintiff had accepted, without prejudice, Chubb’s offer to pay him indemnity at the relapse rate of $692.75 for his disability period following the surgeries pursuant to General Statutes § 31-307b, commonly known as the relapse statute. Liberty Mutual, however, contended that it is not responsible for 50 percent of the indemnity and offered to pay 37 percent of Chubb’s base rate, or $181.36. Chubb rejected the offer.

A formal hearing was held before the commissioner on January 10, 2011, and the record was closed on February 14, 2011. The commissioner framed the hearing issue as what amount are the insurers, respectively, obligated to pay the plaintiff for periods of total and temporary partial disability following the bilateral knee surgeries, where each surgery concurrently disables the plaintiff. The commissioner found the situation unique in that one knee injury does not affect the other knee injury. “The two injuries are separate and distinct injuries that do not, in concert, totally disable the plaintiff. Instead, they are concurrent to each other.” Moreover, the plaintiffs decision to have both knees replaced at the same time benefits him in that he will have only one period of recovery and also benefits both insurers in that they are able to divide many of the surgical and postsurgical costs that would have been duplicative had the plaintiff opted to have his knees replaced at separate times.

The commissioner’s findings and award is dated May 19, 2011. In it he found that the plaintiff had reached maximum medical improvement for both injuries, but his conditions had worsened, necessitating that both of his knees be replaced and that § 31-307b applied to each injury. He farther found that the injuries were separate and distinct, and that the plaintiff could have elected to undergo separate surgeries resulting in dupli-cative medical costs. Each knee replacement surgeiy concurrently disabled the plaintiff, who was entitled to indemnity at the relapse rate of $692.75. Chubb was to administer the surgeries and payments. Liberty Mutual was to reimburse Chubb 50 percent of the indemnity it paid the plaintiff in addition to 50 percent of the medical costs agreed upon by the insurers.

Liberty Mutual appealed from the corrected finding and award to the board, primarily claiming that the commissioner erred by requiring Liberty Mutual to reimburse Chubb 50 percent of indemnity paid the plaintiff postsurgery. The board issued a decision dated June 1, 2012, in which it identified the issue before it as “whether a trial commissioner failed to follow appropriate precedent in determining that two insurance carriers should apportion the temporary total disability resulting from the [plaintiffs] bilateral knee replacement surgery.” The board found that Liberty Mutual relied on Hatt v. Burlington Coat Factory, 263 Conn. 279, 819 A.2d 260 (2003), and Malz v. State/University of Connecticut Health Center, No. 4701 CRB-6-03-7 (August 20, 2004), to support its position that the commissioner had no authority to apportion liability in the manner implemented in this case; and that Chubb relied on Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338, 94 A.2d 119 (1952), as authority supporting the commissioner’s finding and award. The board found, however, that none of the cases cited by the insurers pertained to the facts of this case, which it determined was sui generis. Nonetheless, the board concluded that the commissioner properly had exercised his powers pursuant to General Statutes § 31-278 to resolve the dispute between the insurers equitably, and that his finding and award were consistent with the 2010 agreement.

In affirming the commissioner’s finding and award, the board reasoned that if the plaintiff had not sustained the second injury, Liberty Mutual would have been obligated to pay the entire cost and indemnity attributable to knee replacement surgery resulting from the first injury. The board noted that double recoveries are disfavored under the Workers’ Compensation Act (act); see Nichols v. Lighthouse Restaurant, Inc., 246 Conn. 156, 164, 716 A.2d 71 (1998); Pokomy v. Getta’s Garage, 219 Conn. 439, 454, 594 A.2d 446 (1991); and that any award that paid the plaintiff a full disability benefit simultaneously for each knee injury would be void as against public policy. The board agreed with the commissioner that it would be irrational to force the plaintiff to undergo two knee replacement surgeries at different times and noted that the act cannot be construed in a manner that creates an “absurd or unworkable result.” See First Union National Bank v. Hi Ho Mall Shopping Ventures, Inc., 273 Conn. 287, 291, 869 A.2d 1193 (2005).

The board, however, foresaw a potential for inequity in the award during the period of the plaintiffs recovery. The board found that the commissioner’s award operates only as long as each of the plaintiffs knees renders him totally disabled, but the board recognized that one of the plaintiffs knees may recover its function before the other. At that time, the insurer on the risk for the “healthy knee” will be forced to pay one half of the cost of § 31-307b benefits and the insurer on the risk for the “injured knee” will reap a windfall. The board stated that postsurgical apportionment of disability benefits must be based on contemporaneous medical evidence: “Once it is possible to ascertain which body part is responsible for disabling the [plaintiff], the burden of continuing temporary total disability benefits should rest on the [insurer] responsible for [that] body part.” For this reason, the board found that any challenge to the commissioner’s award regarding indemnity apportionment was premature. The board stated that when one of the plaintiffs knees is responsible for disabling the plaintiff, the insurer responsible for that injury may file a motion pursuant to General Statutes § 31-315. The board affirmed the commissioner’s finding and award. Thereafter, Liberty Mutual appealed to this court.

Our resolution of the claims on appeal begins with the applicable 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. ... 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 review board. ... A state agency is not entitled, however, to special deference when its determination of a question of law has not previously been subject to judicial scrutiny. . . . Where [a workers’ compensation] appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision.” (Internal quotation marks omitted.) Hardt v. Watertown, 95 Conn. App. 52, 55-56, 895 A.2d 846 (2006), aff'd, 281 Conn. 600, 917 A.2d 26 (2007). Because we conclude that the facts of this case present an issue of first impression; see part I of this opinion; our review of the claims on appeal is plenary.

I

Liberty Mutual claims that the board failed to adhere to the doctrine of stare decisis when resolving Liberty Mutual’s appeal. Liberty Mutual claims that under appellate decisions concerning General Statutes § 31-299b, Chubb is not entitled to an apportionment of the indemnity paid the plaintiff when he is temporarily totally disabled. We disagree as we are unaware of any precedent, and the insurers have not identified any, that is on point with the facts presented here.

“The doctrine of stare decisis counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. . . . Stare decisis is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that the law is relatively unchanging, it saves resources and it promotes judicial efficiency.” (Internal quotation marks omitted.) Commission on Human Rights & Opportunities v. Sullivan, 285 Conn. 208, 216, 939 A.2d 541 (2008).

“It is a rare case in which a court will reverse an administrative body because of its failure to apply the doctrine of stare decisis, or because in a particular case it has departed from the policy expressed in earlier cases. ... In those cases where reversal is justified, the administrative decision must be palpably arbitrary, unreasonable or discriminatory. . . . Reconsideration of a previously stated policy is a prerogative of administrative agencies, which are ordinarily not restrained under the doctrine of stare decisis or on the grounds of equitable estoppel. ” (Citation omitted; internal quotation marks omitted.) Germain v. Manchester, 135 Conn. App. 202, 213-14, 41 A.3d 1100 (2012). “If a reviewing court is satisfied that the administrative agency has provided a reasoned analysis for departing from its own established policy indicating that prior policies and standards are being deliberately changed and not casually ignored, so that agency’s path may reasonably be discerned, the court will affirm the agency’s decision.” 73A C.J.S. 165, Public Administrative Law & Procedure § 292 (2004); see Germain v. Manchester, supra, 214.

Liberty Mutual claims that the board failed to follow the precedent established by Hatt v. Burlington Coat Factory, supra, 263 Conn. 279, Mages v. Alfred Brown, Inc., 123 Conn. 188, 193 A. 780 (1937), Marroquin v. F. Monarca Masonry, 121 Conn. App. 400, 994 A.2d 727 (2010), and Maiz v. State/University of Connecticut Health Center, supra, No. 4701 CRB-6-03-07. Our review of each of those cases discloses that the facts regarding the injuries therein are distinguishable from the present case.

In Hatt, the issue with respect to § 31-299b was whether the statute “permits apportionment only in cases of repetitive trauma or occupational disease and, therefore, does not provide a basis for apportionment of liability among insurers when the claimant has suffered two separate and distinct injuries . . . .” Hatt v. Burlington Coat Factory, supra, 263 Conn. 282-83. The plaintiff, Mary Ann Hatt, suffered an injury to her left foot in 1988. Id., 284. Despite medical treatment, the pain progressively worsened and the appearance of her foot changed, which resulted in an increased disability rating in 1999. Id., 284-86. The first insurer contested liability, claiming that Hatt’s ongoing treatment was unrelated to the 1988 injury. Id., 285. In 1998, Hatt’s employer was insured by another carrier, which also contested liability. Id., 286. Following a formal hearing, the commissioner found that Hatt’s condition was a cumulative injury resulting from work activities following the 1988 injury and apportioned liability between the two insurers pursuant to § 31-299b. Id., 286-87. The first carrier appealed to the board, which reversed the commissioner’s award finding that Hatt had suffered two separate injuries to her left foot. Id., 287. The board concluded that “the apportionment scheme under § 31-299b was inapplicable because the statute addresses single injuries such as occupational diseases or repetitive traumas . . . .” Id. Apportionment under § 31-299b is permitted only in instances of a single injury caused by multiple exposures such as repetitive injuries or occupational diseases. Id., 315. Therefore, pursuant to General Statutes § 31-349, the second insurer was solely liable for all expenses stemming from the 1998 injury. Id., 288. Our Supreme Court agreed with the board’s conclusions regarding §§ 31-299b and 31-349. Id., 312-13. The facts of the case before us now are distinguishable from Hatt, not because there were two separate injuries, but because each injury is independent of the other in rendering the plaintiff disabled.

Here, the commissioner found that the plaintiffs knee injuries were separate and concurrent, not cumulative. Liberty Mutual has not disputed that finding. On the basis of our review of the record, the briefs of the parties, and the cases that they claim have precedential value, we conclude that the board properly found the facts of this case sui generis. The board’s decision therefore does not violate the doctrine of stare decisis. Because we are called upon to construe § 31-299b under a unique fact pattern, our review is plenary.

II

The essence of Liberty Mutual’s claims on appeal is that the board (a) failed to adhere to the applicable standard of review because it found facts with regard to the 2010 agreement not found by the commissioner and (b) improperly affirmed the commissioner’s finding and award as a matter of law. We conclude that the facts found by the board were gratuitous and unnecessary to the resolution of the legal issue before it, but that the board’s error, if any, was harmless. See Testone v. C. R. Gibson Co., 114 Conn. App. 210, 219, 969 A.2d 179 (error harmless if record reveals sufficient independent evidence to support decision), cert. denied, 292 Conn. 914, 973 A.2d 663 (2009). The findings of the commissioner are sufficient to support his award, which is grounded in the remedial purpose of the act.

A

Liberty Mutual claims that the board improperly found facts concerning the 2010 agreement that were not found by the commissioner. Assuming, without deciding; see footnote 10 of this opinion; that the board violated the standard of review by finding facts with respect to the 2010 agreement, we conclude that any error was harmless.

We begin our analysis by setting forth the scope of our review on which Liberty Mutual relies. “The commissioner is the sole trier of fact and [t]he 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. . . . The review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is [obligated] to hear the appeal on the record and not retry the facts. ... On appeal, the board must determine whether there is any evidence in the record to support the commissioner’s finding 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 which are admitted or undisputed. . . . Put another way, the board is precluded from substituting its judgment for that of the commissioner with respect to factual determinations.” (Citations omitted; internal quotation marks omitted.) Brown v. Dept. of Correction, 89 Conn. App. 47, 53, 871 A.2d 1094, cert. denied, 274 Conn. 914, 879 A.2d 892 (2005).

The following facts are relevant to Liberty Mutual’s claims. In its finding and award, the commissioner found that, pursuant to the 2010 agreement, Chubb was to administer the plaintiffs knee replacement surgeries and pay the surgical costs, incidental expenses, and prescriptions related to the surgery, and that Liberty Mutual would reimburse Chubb 50 percent of those costs. The commissioner specifically found that the 2010 agreement did not address the rate of indemnity benefits to be paid the plaintiff nor the insurers’ respective contributions toward indemnity. During the formal hearing, the commissioner stated that the purpose of the hearing was to determine the respective amount each of the insurers was obligated to pay the plaintiff for indemnity. See footnote 3 of this opinion. The commissioner’s award set the plaintiff a relapse rate at $692.75 per week and directed Liberty Mutual to reimburse Chubb 50 percent of the indemnity in addition to 50 percent of the costs agreed upon by the parties.

In its decision, the board noted the commissioner’s finding that the 2010 agreement did not address the plaintiff’s relapse rate or the contribution each insurer was obligated to pay for indemnity. The board noted that workers’ compensation benefits derive exclusively from the act and that “ ‘[a] commissioner may exercise jurisdiction to hear a claim only under the precise circumstances and in the manner particularly prescribed by the enabling legislation.’ Cantoni v. Xerox Corp., 251 Conn. 153, 160, [740 A.2d 796] (1999).” The board found, however, that “the apportionment statutes and case law do not address the ‘precise circumstances’ ” of this case. It concluded that because the present dispute is one of first impression, it was required “to look at the expressed intent of the parties and the statutory approach to compensating total disability injuries in the absence of multiple liable parties.”

The board stated that lacunae are present in the act, and, that when issues are presented to it, the board has an obligation to reach a reasoned outcome consistent with the act. It found that the commissioner’s finding and award simply implemented the expressed intent of the parties’ 2010 agreement. Although the 2010 agreement does not define surgical costs or incidental expenses, in this instance, the board found that incidental expenses would include the unavoidable expense of § 31-307b benefits due the plaintiff for the period of temporary total disability he would experience following his surgeries. It is these findings to which Liberty Mutual takes exception on appeal.

Our Supreme Court has noted that “[o]ver the course of the last 100 years, [it] frequently has interpreted the provisions of our workers’ compensation statutory scheme by looking at the purpose and the legislative history of the act.” Marandino v. Prometheus Pharmacy, 294 Conn. 564, 577, 986 A.2d 1023 (2010). As discussed in part IIB of this opinion, the commissioner analyzed the plaintiffs injuries as being independent of one another, concluded that the replacement of either knee would involve a period of temporary total disability, determined that having simultaneous bilateral knee surgery benefitted the plaintiff as well as the insurers in that the plaintiff incurred only one period of recovery and decided that it made sense for the insurers to share equally the cost of indemnity. The board concluded that the commissioner’s award falls within the remedial purpose of the act. To require the plaintiff to undergo two surgeries at different times would constitute an absurd result under the act. See Linden Condominium Assn., Inc. v. McKenna, 247 Conn. 575, 583-84, 726 A.2d 502 (1999) (statutes cannot be construed to yield absurd result).

On the basis of this analysis, we conclude that the commissioner’s findings are sufficient to support his award. If the board’s findings with respect to the insurers’ intent regarding incidental expenses deviated from the standard of review, we conclude that any error was harmless. See State v. Burney, 288 Conn. 548, 560, 954 A.2d 793 (2008) (court may rely on any ground supported by record to affirm judgment).

B

Liberty Mutual also claims that the board’s decision is not supported by competent evidence and that the order to reimburse Chubb 50 percent of the indemnity it pays to the plaintiff is erroneous as a matter of law. We disagree.

The commissioner found that neither insurer disputed that the plaintiffs need for bilateral knee surgery was reasonable and medically necessary. He also found that knee replacement surgery for either knee would result in a period of disability. Moreover, the plaintiffs “decision to undergo both knee replacements simultaneously benefits [him] in that he has only one period of recovery and also benefits both insurance carriers in that they are able to split many of the surgical and postsurgical costs that would be duplicative had the [plaintiff] opted for two separate surgeries.” In reviewing the commissioner’s analysis, the board found that forcing the plaintiff to undergo separate knee replacement at different times and to incur a longer period of disability would be irrational. We agree.

In deciding the claim, we are mindful of the act’s remedial purpose. “[T]he act indisputably is a remedial statute that should be construed generously to accomplish its purpose. . . . The humanitarian and remedial purposes of the act counsel against an overly narrow construction that unduly limits eligibility for workers’ compensation. . . . Accordingly, [i]n construing workers’ compensation law, we must resolve statutory ambiguities or lacunae in a manner that will further the remedial purpose of the act. . . . [T]he purposes of the act itself are best served by allowing the remedial legislation a reasonable sphere of operation considering those purposes.” (Citations omitted; internal quotation marks omitted.) Pizzuto v. Commissioner of Mental Retardation, 283 Conn. 257, 265, 927 A.2d 811 (2007).

On appeal to this court, Liberty Mutual contends that the commissioner’s finding and award is erroneous as a matter of law because enforcement of the 2010 agreement pursuant to General Statutes § 31-303 was not identified in the notice of the formal hearing as an issue to be resolved. Enforcement of the agreement was not the issue decided by the commissioner. Rather, the commissioner decided how to apportion the indemnity paid to the plaintiff during his temporary total disability following bilateral knee replacement surgery. The commissioner therefore did not enforce the 2010 agreement, which it found did not address the rate of the plaintiffs indemnity or the contribution from each of the insurers.

Liberty Mutual argues that Hatt v. Burlington Coat Factory, supra, 263 Conn. 279, controls because the plaintiffs “single period of disability following his simultaneous surgeries will be a result of the inextricable combination of the two injuries. Therefore, inasmuch as it is necessary for the two injuries to combine to reach the same conclusions found in the Hatt case, the same would be applicable to the instant case.” (Internal quotation marks omitted.) This argument ignores the commissioner’s finding that the plaintiffs first and second injuries are separate and distinct and that neither injury affects the other. In fact, Liberty Mutual has acknowledged, as it must, that it would be liable for any temporary total disability the plaintiff would incur if he had knee replacement surgery for the first injury independent of the surgery for the second injury. See Costello v. Seamless Rubber Co., 99 Conn. 545, 549, 122 A. 79 (1923) (injuries involving the loss of member ordinarily involve period of incapacity). Liberty Mutual argues, however, that because the concurrent surgeries will render the plaintiff disabled for a period of time, Chubb, as the insurer on the second injury, is hable for ah of the plaintiffs indemnity and that it is irrelevant that the plaintiff elected to undergo contemporaneous bilateral knee replacement surgeries. By agreeing to pay 50 percent of the medical costs of the plaintiffs bilateral knee replacement surgeries, it disavows the validity of its argument that only Chubb as the insurer for the plaintiffs second injury is liable for the whole.

We also disagree with Liberty Mutual’s claim that the board’s decision cites no law to support it. The board relied upon § 31-278, which provides in relevant part that “[e]ach commissioner . . . shall have all powers necessary to enable him to perform the duties imposed upon him by the provisions of’ the act. “The purpose of the [act] is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer .... [The act] compromise^] an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation. . . . The act indisputably is a remedial statute that should be construed generously to accomplish its purpose. . . . The humanitarian and remedial purposes of the act counsel against an overly narrow construction that unduly limits eligibility for workers’ compensation. . . . Further, our Supreme Court has recognized that the state of Connecticut has an interest in compensating injured employees to the fullest extent possible . . . .” (Internal quotation marks omitted.) Jones v. Connecticut Children’s Medical Center Faculty Practice Plan, 131 Conn. App. 415, 422-23, 28 A.3d 347 (2011). “The purposes of the act itself are best served by allowing the remedial legislation a reasonable sphere of operation considering those purposes.” Mingachos v. CBS, Inc., 196 Conn. 91, 97, 491 A.2d 368 (1985). In appeals arising under the act, “we must resolve statutory ambiguities or lacunae in a manner that will further the remedial purpose of the act.” Doe v. Stamford, 241 Conn. 692, 698, 699 A.2d 52 (1997).

We agree with the reasoning of the commissioner and the board that the remedial purposes of the act are fostered by the plaintiffs undergoing bilateral knee replacement surgery with one period of recovery. The act is to provide for “relatively quick and certain compensation.” Mingachos v. CBS, Inc., supra, 196 Conn. 97. Moreover, the commissioner’s finding and award benefits the insurers in that they are able to share in the costs of the plaintiffs temporary total disability postsurgery. Although the commissioner ordered each insurer to pay 50 percent of the indemnity owed the plaintiff, he did not order the parties to apportion a percentage of the indemnity for a single injury or combination of injuries. The commissioner directed the insurers to pay 50 percent of the plaintiffs indemnity for a period of disability he elected to incur by having the separate first and second injuries treated by means of simultaneous bilateral knee replacement surgeries. Liberty Mutual acknowledges it is responsible for the plaintiffs first injury and that it would be hable for all costs if the plaintiff had knee replacement surgery for the first injury at a time other than when the second injury knee replacement surgery took place. As noted, we wholly agree with the commissioner and the board that it is not reasonable to expect the plaintiff to undergo two periods of recovery. We therefore conclude that the board properly affirmed the commissioner’s finding and award in which it reached a reasoned decision consistent with the act.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       Neither the plaintiff nor the employer is a party to this appeal.

       On appeal, Liberty Mutual has not contested the commissioner’s finding and award as to the plaintiffs relapse rate.

       In its brief on appeal, Liberty Mutual cites a colloquy among the commissioner and counsel for the insurers during the formal hearing. The relevant portions of the transcript reveal the following exchange:
      “[Commissioner]: And there is no dispute as to the medical necessity or the reasonableness of the surgeries, correct?
      “[Counsel for Liberty Mutual]: Correct, commissioner, I believe there is even an agreement in your file. . . .
      “[Commissioner]: And that will be administered by the last carrier, which is Chubb, correct . . . ?
      “[Counsel for Chubb]: Yes, commissioner, pursuant to an agreement entered into by the parties at an informal hearing with a writing on March 10, 2010. Chubb will administer the bilateral total knee replacements and seek reimbursement from the Liberty for 50 percent of all expenses related to the surgery and prescription meds.

        “[Commissioner]: My understanding is the issue had to do with the rate for which [the plaintiff] will be paid. I know Chubb is, will do the relapse rate of, and you have the amount?
      “[Counsel for Chubb]: Let me just, for the record, the argument of Chubb is that as each one of these surgeries are from separate and distinct injuries and each one of these surgeries in and of itself could make the [plaintiff] temporarily totally disabled medically, that any other law other than a 50/ 50 apportionment between Liberty and the Chubb is inappropriate because they aren’t, they aren’t melding together to make the [plaintiff] temporarily totally disabled, the surgeries aren’t melding together, they are separate and distinct, and each one could make the claimant temporarily totally disabled. ... We would seek 50 percent of the temporary total disability payments from the Chubb as it would pertain to [the plaintiffs] recuperative period. ... If the commission should so find that the relapse rate is the appropriate rate in this case, I would ask that that relapse rate of $692.75 be apportioned 50/50 between the Chubb and Liberty. Obviously, if the commission chooses no relapse rate and reverts to the prior temporary total disability rate ... I would argue 50 percent of whatever rate is chosen by the commissioner. . . .
      * * *
      “[Commissioner]: Okay. So the only issue I need to sort out is what, if any, amount Liberty will have to pay.
      * * *
      “[Commissioner]: You are going to have the surgery, [plaintiff], and you’re going to have it at the relapse rate that [Chubb’s counsel] described. The issue of who is to pay what, Chubb is going to pay for the surgery and authorize the surgery, Chubb is going to administer the claim, and I will determine what amount if any liberty has to pay back Chubb in regards to the weekly paycheck, the indemnity portion but not the medical portion, they already worked out, okay?”

       The plaintiffhad bilateral knee replacement surgery on February 24,2011.

       Liberty Mutual filed a motion to correct the finding and award. The commissioner accepted two corrections that do not affect the issues on appeal.

       Liberty Mutual gave the following reasons for its appeal to the board: (1) the commissioner erred in ordering it to reimburse Chubb 50 percent of the indemnity paid to the plaintiff postsurgery, (2) the finding and award fails to cite any statute or case law that provides a legal basis for reimbursement, (3) there is no legal basis for the reimbursement ordered, (4) Chubb’s reliance on common law apportionment andMund v. Farmers’ Cooperative, Inc., 139 Conn. 338, 94 A.2d 119 (1952), to seek reimbursement from it is legally incorrect, and (5) the commissioner erred in denying Liberty Mutual’s motion to correct in its entirety.

       General Statutes § 31-278 provides in relevant part: “Each commissioner shall . . . have the power to certify official acts and shall have all powers necessary to enable him to perform the duties imposed upon him by the provisions of this chapter. . . .”

       General Statutes § 31-299b provides in relevant part: “If an employee suffers an injury or disease for which compensation is found by the commissioner to be payable according to the provisions of this chapter, the employer who last employed the claimant prior to the filing of the claim, or the employer’s insurer, shall be initially liable for the payment of such compensation. The commissioner shall, within a reasonable period of time after issuing an award, on the basis of the record of the hearing, determine whether prior employers, or their insurers, are liable for a portion of such compensation and the extent of their liability. If prior employers are found to be so liable, the commissioner shall order such employers or their insurers to reimburse the initially liable employer or insurer according to the proportion of their liability. • • •”

       The board concluded that none of the following cases relied upon by the parties controlled the issue in this case. We agree.
      In Mages v. Alfred Brown, Inc., supra, 123 Conn. 188, Gabriel Mages injured his spine while in the employ of one employer who accepted the injury. Id., 190. Mages was later employed by a second employer when he fell and reinjured his spine and was no longer able to work. Id. Our Supreme Court held that the insurer for the second employer was liable for the disability because there were two injuries and Mages’ prior injury had no effect on the liability of the second employer, as Mages probably would have been able to continue to work save for the second injury. Id., 194. Mages is distinguishable from the facts of the present case where there are two separate injuries, each of which independently renders the plaintiff disabled.
      The case of Marroquin v. F. Monarca Masonry, supra, 121 Conn. App. 400, is distinguishable, as well. This court determined that Halt did not control Marroquin because it was factually distinct. In contrast to Hatt, which involved “successive insurers for the same employer and a claimant with two separate and distinct injuries, each of which was suffered during a different insurer’s policy coverage, we are presented [here] with multiple insurers and a claimant with a single injury. We do find highly significant the Supreme Court’s statement in Hatt that in enacting § 31-299b, the legislature explicitly provided for an apportionment scheme in the single injury and multiple employer or insurer scenario . . . and we conclude that under § 31-299b, the commissioner had the authority to apportion liability to the responsible employer-insurer in this single injury and multiple employer or insurer scenario.” (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 411-12. Because Marroquin concerned a single injury, it is inapposite to the present case.

        Malz v. State/University of Connecticut Health Center, supra, No. 4701 CRB-6-03-07, also is distinguishable. In that case, Stephania Malz suffered an injury to her lumbar spine and cervical spine in 1990. She suffered a second injury to her cervical spine in 1994. The commissioner concluded that the insurance carrier for the 1994 injury was not entitled to apportionment pursuant to Hatt v. Burlington Coat Factory, supra, 263 Conn. 279, “where two separate compensable injuries contribute to subsequent disability.” In the present case, two separate injuries do not contribute to the plaintiffs disability-
      Before the board, Chubb relied on Mund v. Farmers’ Cooperative, Inc., supra, 139 Conn. 338, for its apportionment claim. The board distinguished Mund in its opinion. Chubb does not rely on Mund on appeal before this court. We agree with the board that the facts of Mund are distinguishable from the present facts. In Mund, the claimant suffered a ruptured disc in 1946, but eventually was able to return to work, and subsequently reopened the disc in an accident in 1950. Id., 340-41. The commissioner found that the two ruptures of the disc were “equal, concurrent and contributing causes” of the claimant’s resulting disability. Id., 341. The injury was apportioned between the two carriers. Id.

       We note that the general principles governing the construction of a contract are well established. “If a contract is unambiguous within its four comers, intent of the parties is a question of law requiring plenary review. . . . When the language of a contract is ambiguous, the determination of the parties’ intent is a question of fact, and the trial court’s interpretation is subject to reversal on appeal only if it is clearly erroneous.” (Internal quotation marks omitted.) Sagalyn v. Pederson, 140 Conn. App. 792, 795, 60 A.3d 367 (2013). Whether the 2010 agreement is ambiguous was not briefed by the insurers. Although that issue would affect the board’s standard of review, we need not decide the question of ambiguity to resolve Liberty Mutual’s claim.

       The formal hearing notice listed three issues: “§ 31-299b—Apportion-ment of Liability; § 31-307b—Recurrence of Prior Injury; [General Statutes] § 31-310—Compensate Rate/Average Weekly Wage.”

       The corollary to this acknowledgement is that Liberty Mutual is liable to pay the plaintiff indemnity for the disability resulting from knee replacement surgery due to the first injury whether it is done separately or in combination with the second injury knee replacement surgery. If both Liberty Mutual and Chubb paid the plaintiff temporary total disability for the same period of time, the plaintiff would receive a double recovery. The board properly noted that double recoveries under the act are disfavored. See Enquist v. General Datacom, 218 Conn. 19, 26, 587 A.2d 1029 (1991); see also 6 A. Larson & L. Larson, Workers’ Compensation Law (2012) § 110.02, pp. 110-3 through 110-6.