author: Glass, J. Covello, J., with whom Berdon, J.,

text:
    Mark Weinberg v. ARA Vending Company et al.
    (14440)
    Callahan, Glass, Covello, Borden and Berdon, Js.
    Argued April 3
    decision released August 4, 1992

      Richard K. Mulroney, for the appellant (plaintiff).

      Thomas H. Cotter, for the appellees (defendants).
   Glass, J.

The sole issue in this appeal is whether, pursuant to General Statutes § 31-349 (a), an award received by the plaintiff from the Veterans Administration (VA) for a service-connected injury that resulted in a 20 percent permanent partial disability of his back must be credited against the 30 percent permanent partial disability of his back found to exist after he sustained an injury in the course of his employment by the named defendant. The plaintiff, Mark Weinberg, appealed the decision of the compensation review division reversing a workers’ compensation commissioner’s award ordering that the defendant employer, ARA Vending Company (ARA), pay the plaintiff 3.56 weeks of compensation for a 30 percent permanent partial disability of his back. We reverse the decision of the review division.

The parties stipulated to the facts essential to the disposition of this appeal. On June 11, 1987, the plaintiff was employed by ARA, which had offices in Derby. Prior to the plaintiffs employment by ARA, on July 26, 1979, while he was a member of the United States Air Force, the plaintiff had fallen from a truck and injured his back. As a result of that injury, the VA awarded the plaintiff a pension based on a 20 percent disability of the lumbosacral spine. On June 11, 1987, during the course of his employment by ARA, the plaintiff suffered an injury to his back that resulted in the herniation of a disc. Both the plaintiff’s physician and ARA’s examining physician assigned to the plaintiff a 30 percent disability of the lumbosacral spine, which included the prior existing disability of 20 percent resulting from the service-connected injury.

The commissioner made findings in accordance with the stipulation of the parties and ordered ARA to pay 156 weeks of compensation to the plaintiff for the entire resulting 30 percent permanent partial disability of his back. Thereafter, ARA filed a motion to correct, which the commissioner denied. ARA appealed to the review division, claiming that, pursuant to § 31-349 (a), the plaintiff’s VA disability award should be deducted from the workers’ compensation benefits payable for his overall 30 percent disability of the back. A majority of the review division concluded that § 31-349 (a) required that the plaintiff’s VA pension be set off against the workers’ compensation award and, therefore, remanded the case to the commissioner. The plaintiff appealed the decision of the review division to the Appellate Court and we transferred the appeal to ourselves pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

The plaintiff claims that the review division improperly concluded that § 31-349 (a) requires that the disability pension awarded him by the VA be deducted from his recovery for permanent partial disability under the Connecticut Workers’ Compensation Act (act), General Statutes § 31-275 et seq. The parties stipulated that the 30 percent disability of the plaintiff’s lumbosacral spine found to exist after his work-related second injury included the prior disability of 20 percent awarded by the VA. Since there is no dispute concerning the percentage of disability attributable to the plaintiff’s existing and prior disabilities, the disposition of this appeal turns on whether the review division properly construed the applicable provisions of § 31-349 (a).

“The construction of a statute generally is a question of law for the court.” Pokorny v. Getta’s Garage, 219 Conn. 439, 453, 594 A.2d 446 (1991). Thus, in reviewing the decision of the review division, we must determine whether its interpretation of § 31-349 (a) is legally and logically correct. Id.

At the time relevant to this appeal, § 31-349 (a) provided in relevant part: “If an employee who has previously incurred, by accidental injury . . . permanent physical impairment, incurs a second disability by accident ... he shall receive compensation for the entire amount of disability . . . less any compensation benefits payable or paid with respect to the previous disability . . . .” (Emphasis added.) The plaintiff argues that he is entitled to receive workers’ compensation for his entire 30 percent disability because the term “compensation benefits,” as used in § 31-349 (a), refers only to compensation under the act. ARA contends that the review division properly concluded that the plaintiff’s VA disability pension constitutes “compensation” within the meaning of § 31-349 (a), to be deducted from his recovery under the act. ARA argues, moreover, that to hold it responsible for the plaintiff’s entire disability would contravene the intent of § 31-349 by, in effect, allowing the plaintiff a “double recovery” for his prior disability.

“In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature.” United Illuminating Co. v. Groppo, 220 Conn. 749, 755, 601 A.2d 1005 (1992). “[W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.” American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 371 (1987). We have acknowledged, however, in the context of workers’ compensation legislation, that “jsjuch guidance is often of little help . . . since words seldom have precise and unvarying meanings.” Jacques v. H.O. Penn Machinery Co., 166 Conn. 352, 359 n.3, 349 A.2d 847 (1974).

When the language of a statute is unclear, we may ascertain the intent of the legislature by looking beyond the language to the statute’s legislative history and the purpose that the statute was intended to serve. American Universal Ins. Co. v. DelGreco, supra. “Because the Workers’ Compensation Act is a remedial statute, this court should not impose limitations on the benefits provided for a disabled worker that the statute itself does not clearly specify.” Misenti v. International Silver Co., 215 Conn. 206, 210, 575 A.2d 690 (1990). In construing the act, moreover, this court “makes every part operative and harmonious with every other part insofar as is possible.” (Internal quotation marks omitted.) Mingachos v. CBS, Inc., 196 Conn. 91, 103-104, 491 A.2d 368 (1985), quoting Bahre v. Hogbloom, 162 Conn. 549, 554, 295 A.2d 547 (1972). Because § 31-349 (a) is part of the larger Connecticut workers’ compensation scheme, the phrase “compensation benefits,” as it is used in that section, must be construed with reference to the act as a whole. Accordingly, “[i]t is necessary to look beyond the express words of General Statutes § 31-349 to whatever sources might aid in its interpretation, including its legislative history, its purpose, and the construction given similar statutes in other jurisdictions.” Jacques v. H.O. Penn Machinery Co., supra, 359 n.3.

In construing “compensation benefits,” as used in § 31-349 (a), to include the plaintiff’s VA disability pension, the review division stated: “The words of Sec. 31-349 (a) . . . clearly grant a credit for compensation payable or paid in connection with a previous disability. In this case the claimant has been and continues to be paid compensation in the form of a VA disability benefit for the previous service-connected disability to his back. Had the legislature intended to restrict said credit only to compensation paid for a previous disability resulting from an injury accepted as or found to be compensable under the Connecticut Workers’ Compensation Act, as amended, then it would or could have clearly so stated.” (Emphasis in original.) Viewing § 31-349 (a) in light of its legislative history and within the context of the act as a whole, we are persuaded that the legislature did thus intend to restrict the meaning of “compensation benefits.”

The word “compensation” appears at several places in § 31-349 (a) to refer to benefits payable under the act. For example, the first sentence of § 31-349 (a) provides in relevant part: “The fact that an employee has suffered previous disability . . . shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom.” (Emphasis added.) Section 31-349 (a) also provides that “[t]he employer by whom the employee is employed at the time of the injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability.” (Emphasis added.) As used in these provisions, it is apparent that “compensation” refers to benefits payable under the act and not to disability payments from other sources.

The review division majority concluded that the term “compensation benefits” in § 31-349 (a) included benefits other than those payable under the act on the basis that “[t]he law cannot permit [the plaintiff] to enjoy a windfall, i.e., to be paid twice for a portion of his permanent partial disability.” In thus attempting to enforce what it perceived as the important public policy prohibiting double recovery; see, e.g., Pokorny v. Getta’s Garage, supra; McGowan v. General Dynamics Corporation/Electric Boat Division, 15 Conn. App. 615, 546 A.2d 893 (1988), aff'd, 210 Conn. 580, 556 A.2d 587 (1989); the review division ignored the “familiar principle of statutory construction that where the same words are used in a statute two or more times they will ordinarily be given the same meaning in each instance.” (Internal quotation marks omitted.) AirKaman, Inc. v. Groppo, 221 Conn. 751, 758, 607 A.2d 410 (1992), quoting State ex rel. Hyde v. Dowe, 129 Conn. 266, 271, 28 A.2d 12 (1942). Nothing in § 31-349 (a) indicates that “compensation” was intended to have two different meanings in that section. Where the legislature has used the word “compensation” throughout the act to mean workers’ compensation benefits payable under the act, we conclude that it is reasonable to construe the term “compensation benefits” in § 31-349 (a) to have the same meaning.

The language in § 31-349 (a) on which the disposition of this appeal turns was added to the statute by No. 79-376 of the 1979 Public Acts. Prior to the 1979 amendment, § 31-349 (a) did not provide for a setoff against payments received as compensation for an injured employee’s prior disability. The legislative history to the 1979 amendment discloses a statement by then house chairman of the joint standing committee on labor and public employees, Representative Richard J. Balducci, that supports our conclusion that “compensation benefits,” as used in § 31-349, refers only to compensation under the act. In remarking on the bill on the floor of the House of Representatives, Balducci stated: “The bill also clarifies and helps to make easier for both sides problems that may come about due to a loss of a thumb or etc., it’s described as one loss. Let’s say if an individual loses a finger and then somewhere along the line in the course of work is compensated for that loss, he loses an additional three fingers, plus the thumb, he would be compensated for the loss of the three fingers and the thumb, not for the entire hand.” (Emphasis added.) 22 H.R. Proc., Pt. 15, 1979 Sess., p. 5054. It is well established that this court may take judicial notice of statements made on the floor of the House as an indicator of legislative intent. See, e.g., Manchester Sand & Gravel Co. v. South Windsor, 203 Conn. 267, 276, 524 A.2d 621 (1987). Balducci’s explanation of the bill expressly linked prior compensation to an injury sustained in the course of work. His statement thus bolsters our interpretation that the legislature intended to restrict the deduction in § 31-349 (a) for “compensation benefits payable or paid with respect to [a] previous disability” to payments made pursuant to the act.

Our conclusion that credit for prior compensation under § 31-349 (a) is limited to payments made under our act finds particular support in a 1991 amendment to the act. We have previously considered subsequent enactments in order to illuminate the legislature’s intent with respect to prior legislative action. See, e.g., AirKaman, Inc. v. Groppo, supra, 761. Number 91-32, § 35, of the 1991 Public Acts amended § 31-349 (a) to provide in relevant part: “If an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone, he shall receive compensation for . . . the entire amount of the disability . . . less any compensation payable or paid with respect to the previous disability . . . notwithstanding the fact that part of the disability was due to a previous disability.” (Emphasis added.) The legislature’s excision of the word “benefits” from § 31-349 (a) evinces an intent to give the term “compensation” a consistent meaning within that section. In fact, No. 91-32 of the 1991 Public Acts substituted “compensation” for related terms throughout the act. See, e.g., Public Acts 1991, No. 91-32, § 21 (substituted “compensation” for “benefit” and “benefits” in General Statutes § 31-306).

The 1991 amendment also added the following definition of “compensation” to General Statutes § 31-275, the definitions section of the act: “As used in this chapter and in sections 10 to 14, inclusive, of this Act, unless the context otherwise provides ... (4) ‘Compensation’ means benefits or payments mandated by the provisions of this chapter, including, but not limited to, indemnity, medical and surgical aid or hospital and nursing service required under section 12 of this Act and any type of payment for disability, whether for total or partial disability of a permanent or temporary nature, death benefit, funeral expense, dependency allowance, payments made under the provisions of section 31-284b, as amended by section 8 of this Act, 31-293a or 31-310, as amended by section 28 of this Act, or any adjustment in benefits or payments required by this chapter.” (Emphasis added.) Public Acts 1991, No. 91-32, § 1. The act as amended became effective July 1, 1991.

The legislative history of No. 91-32 of the 1991 Public Acts indicates that it was intended to be a technical amendment. In commenting on the bill on the floor of the Senate, Senator James H. Maloney, senate chairman of the joint standing committee on labor and public employees, described the bill as “the bill that makes technical recodification of the Workers’ Compensation statute” and that “cleans up the statute in regard to Workers’ Compensation.” 34 S. Proc., Pt. 3, 1991 Sess., p. 836. Similarly, in presiding over a hearing of the joint standing committee, Maloney described the bill as “a technical revision in [e]ffect to the existing statute.” Conn. Joint Standing Committee Hearings, Labor and Public Employees, 1991 Sess., p. 16. He went on to state: “So we’re not really dealing with changes in the substantive legislation today. If there are substantive changes that are made because of the draft, we do want to hear about that because that’s not what’s supposed to have occurred with this instrument.” Id. Commissioner John Arcudi of the compensation review division, who participated in formulating the proposed revisions, also testified at the hearing that “the purpose of the bill [was] not to change substance, but to try to simplify language and eliminate archaic language, reduce language if possible . . . .” Id., p. 17. Finally, in commenting on the bill on the House floor, Representative Joseph A. Adamo, house chairman of the joint standing committee on labor and public employees, stated that the bill “brings into focus a new section of describing all the definitions that were utilized and sprinkled throughout the entire chapter.” 34 H.R. Proc., Pt. 5, 1991 Sess., pp. 1959-60. When viewed together, the foregoing statements make clear that the definition of “compensation” provided in the 1991 amendment merely clarified the term as it had already been used throughout the act and did not enact any substantive change in the law.

ARA argues that to permit the plaintiff to recover the full 30 percent disability award under the act for an injury for which the YA is already partially compensating him would be to allow him a “double recovery,” in contravention of established public policy. In support of this contention, ARA relies on the Appellate Court’s opinion in McGowan v. General Dynamics Corporation/Electric Boat Division, supra. In McGowan, the plaintiffs filed for and received benefits under the federal Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 901 et seq., for injuries sustained during the course of their employment with the named defendant. The plaintiffs subsequently sought benefits under the Connecticut Workers’ Compensation Act for scarring resulting from the same injuries, as no such benefits were available under the LHWCA. The plaintiffs argued that their LHWCA benefits should be credited against the benefits available under the Connecticut act on a category by category basis, thus permitting them to recover for scarring. The total benefits that had been awarded each plaintiff under the LHWCA, however, exceeded the total benefits available to each of them under Connecticut law. The Appellate Court concluded that awarding the plaintiffs benefits under Connecticut’s act would constitute an impermissible “double recovery.”

While it is true that, as a general principle, our Workers’ Compensation Act prohibits double recovery; Pokorny v. Getta’s Garage, supra, 454; we have recognized that this prohibition is not inviolate. Enquist v. General Datacom, 218 Conn. 19, 37, 587 A.2d 1029 (1991) (Glass, J., dissenting). In McGowan, the Appellate Court construed a specific federal act in accordance with United States Supreme Court precedent and the language of the act itself. See footnote 8, supra. The Appellate Court also construed the exclusivity provision of our act, General Statutes § 31-284, to prohibit the plaintiffs’ recovery of benefits on a category by category basis. McGowan v. General Dynamics Corporation/Electric Boat Division, supra, 621-22. The Appellate Court was not called upon in McGowan, however, to construe the setoff provision of § 31-349 (a) at issue in the present case.

The legislature has expressly restricted the term “compensation” to mean benefits payable under the act, unless the context provides otherwise. Public Acts 1991, No. 91-32, § 1. The context of § 31-349 (a) does not reveal a legislative intent to give “compensation” a meaning other than that expressly provided by the definition in the 1991 amendment. Where the legislature has specifically defined an operative term used within a statute, we are bound to accept that definition; Plasticrete Block & Supply Corporation v. Commissioner of Revenue Services, 216 Conn. 17, 27, 579 A.2d 20 (1990); unless to do so would create an irrational result that could not have been intended by the legislature. See, e.g., Vernon Village, Inc. v. Carothers, 217 Conn. 130, 139-40, 585 A.2d 76 (1991).

In Levanti v. Dow Chemical Co., 218 Conn. 9, 587 A.2d 1023 (1991), this court construed § 31-349 to permit recovery for a prior noncompensable injury that is followed by and combines with a subsequent compensable injury. In rejecting the defendant employer’s claim that thus applying § 31-349 would lead to irrational results by imposing liability on employers for disabilities which are not wholly attributable to their employment, we stated: “Section 31-349 does not create liability. To the contrary, it is an apportionment statute that limits the liability of employers previously imposed.” Id., 17. We concluded that the application of the statute promoted rational results since § 31-349 would have served to limit the defendant’s liability to 104 weeks if the plaintiff’s resultant disability had warranted an award in excess of that amount. Id., 18.

In the present case, our conclusion that the plaintiff may recover benefits for his prior disability both under the act and from the YA results from adherence to the statutory definition of “compensation” in the act as amended. We are persuaded that this conclusion is not so irrational that it could not have been intended by the legislature; see Enquist v. General Datacom, supra; rather, we conclude that the legislature rationally could have intended to prohibit double recovery under § 31-349 (a) only to the extent that an employee may not recover twice for the same injury under the Connecticut Workers’ Compensation Act.

The decision of the compensation review division is reversed and the case is remanded to the compensation review division with direction to deny the defendants’ appeal.

In this opinion Callahan and Borden, Js., concurred.

Covello, J., with whom Berdon, J.,

joins, dissenting. I do not agree that the term “compensation benefits” is limited to benefits payable under the act and, therefore, respectfully dissent. I would affirm the compensation review division’s determination that the term “compensation benefits” in General Statutes 31-349 (a) means any compensation from any source, including Veterans Administration benefits. Any other result distorts the plain language of the statute and contravenes our longstanding public policy against “two independent compensations for the [same] injury [i.e., double dipping].” Enquist v. General Datacom, 218 Conn. 19, 26, 587 A.2d 1029 (1991), quoting Uva v. Alonzy, 116 Conn. 91, 98, 163 A. 612 (1933).

Although the majority meticulously examines the legislative history of § 31-349 (a), where, as here, the statutory language is clear and unambiguous, there is no need for statutory construction or a review of the legislative history; “it is assumed that the words themselves express the intent of the legislature.” Federal Aviation Administration v. Administrator, 196 Conn. 546, 550, 494 A.2d 564 (1985), citing State v. Smith, 194 Conn. 213, 222, 479 A.2d 814 (1984). “If there is no ambiguity in the language of the statute, it does not become ambiguous merely because the parties contend for different meanings.” Caldor, Inc. v. Heffernan, 183 Conn. 566, 571, 440 A.2d 767 (1981).

The express language of § 31-349 (a) grants a credit for “any compensation” payable or paid in connection with a previous disability. (Emphasis added.) There is no language in the statute that restricts the phrase “any compensation” to mean only compensation benefits payable under the Connecticut Workers’ Compensation Act. Had the legislature intended to restrict the compensation credit to compensation paid for a previous disability resulting from an injury accepted or found to be compensable under the Connecticut Workers’ Compensation Act, then it could have expressly stated that to be the case.

Further, although the majority claims that the definition of “compensation” added to the act by the 1991 technical amendments support their contention, the majority fails to consider the definition as a whole. Public Acts 1991, No. 91-32. The new definition provides that “[a]s used in this chapter and in sections 10 to 14, inclusive, of this Act, unless the context otherwise provides ... (4) ‘Compensation’ means benefits or payments mandated by the provisions of this chapter . . . . ” (Emphasis added.) By adding the phrase “unless the context otherwise provides,” the legislature recognized that in some cases the circumstances under which the statute is being applied control the meaning of the term “compensation.”

Section 31-349 permits full compensation for the totality of all the disability that exists but only after other compensation for earlier disabilities has been deducted. Such a system prevents double dipping, a policy to which we have long subscribed in our analysis of the Workers’ Compensation Act. Gurliacci v. Mayer, 218 Conn. 531, 570, 590 A.2d 914 (1991); Uva v. Alonzy, supra; Olmstead v. Lamphier, 93 Conn. 20, 104 A. 488 (1918).

Under the majority’s construction of the statute, the plaintiff will receive double compensation for a portion of his disability. The plaintiff currently receives compensation from the Veterans Administration (VA) based upon a 20 percent disability. After the second injury, the plaintiff was assigned a total disability of 30 percent, which includes the previous 20 percent disability awarded by the VA. In order to make the plaintiff whole and to avoid double dipping, ARA should only have to compensate the plaintiff for the 10 percent disability ascribable to the second injury. This, when added to the VA benefits, fully compensates the plaintiff for his 30 percent disability. Under the majority’s rationale, the plaintiff will receive compensation for the same 20 percent disability from both the VA and ARA in addition to compensation for the 10 percent disability from the second injury. As a result, the plaintiff will receive 50 percent disability benefits for what is in actuality a 30 percent disability. I submit that such a construction is unwarranted and the VA benefits should be credited against the plaintiffs total compensation.

The majority’s construction of § 31-349 (a) discourages employers from hiring handicapped employees. One of the purposes in enacting second injury fund legislation like § 31-349 (a) was to prevent discrimination against handicapped workers. Jacques v. H.O. Penn Machinery Co., 166 Conn. 352, 355, 349 A.2d 847 (1974). By making the employer liable for the total percentage of disability, employers will be reluctant to hire workers with a previous disability, when the prior injury is compensated by sources other than workers’ compensation.

Further, the majority’s construction serves to increase the cost of workers’ compensation in Connecticut, a result the state can ill afford. Under General Statutes § 31-354 an employer must contribute to the second injury liability fund “a sum not to exceed five per cent of the total amount of money expended by such employer ... in payment of his liability under this chapter for the preceding calendar year.” Thus, the more money spent by an employer in workers’ compensation benefits, the more money the employer must contribute to the Second Injury Fund. Whether the employer assumes the total responsibility here or transfers the matter to the Second Injury Fund after 104 weeks, the eventual result will be increased costs to those funding these disability benefits.

       General Statutes (Rev. to 1987) § 31-349 (a) provides in pertinent part: “The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom. If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability, including total disability, less any compensation benefits payable or paid with respect to the previous disability, and necessary medical care, as elsewhere provided in this chapter, notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes.” (Emphasis added.)

       In 1991, the compensation review division was renamed the compensation review' board. Public Acts 1991, No. 91-339, §§ 18, 21-24, 32.

       ARA’s insurer, Alexsis Risk Management, is also a defendant in this appeal.

       Commissioner John Arcudi dissented from the majority decision, concluding that the term “compensation benefits” in General Statutes § 31-349 (a) refers only to the amount previously paid to a claimant for permanent partial disability under the Connecticut Workers’ Compensation Act. In Ms dissent, Arcudi discussed at length the history and purpose of § 31-349. Arcudi also examined decisions in other jurisdictions that specifically considered whether a VA disability pension should be set off against a workers’ compensation recovery for a second injury. See Subsequent Injury Fund v. Slater, 27 Md. App. 295, 340 A.2d 405 (1975); American Building Maintenance v. McLees, 296 Or. 772, 679 P.2d 1361 (1984).

       The plaintiff, in Ms brief on appeal, attempts to circumvent the parties’ stipulation of facts on the basis of a VA award letter that he submitted as an exhibit at trial. The letter, dated May 28, 1981, stated that the plaintiff’s “claim for disability compensation ha[d] been approved” and assigned the plaintiff a 40 percent “combined” disability rating that consisted of 20 percent for traumatic arthritis, 10 percent for loss of sense of smell, 10 percent for traumatic brain disease, and zero percent for loss of sense of taste. The plaintiff contends that this court should not automatically assign a 20 percent disability rating to his service-connected back injury because the VA award letter did not specify a disability rating for the lumbosacral spine and because, according to the letter, the plaintiff’s overall VA disability rating was not determined by adding the various assigned disability percentages, but rather by using a combined rating table. In finding that the plaintiff’s VA pension was based on a 20 percent disability of the lumbosacral spine, the commissioner implicitly rejected the contents of the VA award letter to the extent that they were inconsistent with the parties’ stipulation. “[T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Moreover, on review of the commissioner’s findings, the trial court does not retry the facts nor hear evidence.” (Citations omitted.) Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18, 411 A.2d 924 (1979). The commissioner was entitled to adopt as a finding the stipulation of the parties and the review division majority properly confined itself to the commissioner’s findings. Accordingly, we decline to consider any of the plaintiff’s arguments that rely on evidence outside the scope of the stipulation.

       The word “compensation” appears in various other sections of the act to refer to benefits payable thereunder. See, e.g., General Statutes § 31-284, which provides in pertinent part that “[a]n employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment . . . but an employer shall secure compensation for his employees . . . except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication.” (Emphasis added.) See also General Statutes § 31-340, which provides in relevant part that insurance contracts between employers and insurers “shall contain an agreement by the insurer to the effect that the insurer shall be directly and primarily liable to the employee ... to pay to him . . . the compensation, if any, for which the employer is liable.” (Emphasis added.)

       “While we generally review a statute’s legislative history based on the Senate and House debates, we may also consider discussions before a joint standing committee when discerning legislative intent.” United Illuminating Co. v. Groppo, 220 Conn. 749, 760 n.16, 601 A.2d 1005 (1992).

       In reaching this conclusion, the Appellate Court relied primarily on the decision of the United States Supreme Court in Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S. Ct. 2432, 65 L. Ed. 2d 458, reh. denied, 448 U.S. 916, 101 S. Ct. 37, 65 L. Ed. 2d 1179 (1980), which held that there is concurrent jurisdiction between state workers’ compensation acts and the LHWCA for land based injuries sustained by maritime workers. In Sun Ship, Inc., the court emphasized that “there is no danger of double recovery under concurrent jurisdiction since employers’ awards under one compensation scheme would be credited against any recovery under the second scheme.” Id., 725 n.8. The Appellate Court also concluded that the plaintiffs were not entitled to recover under Connecticut’s act on the basis of a 1984 amendment to the LHWCA that specifically provided: “Notwithstanding any other provisions of law, any amounts paid to an employee for the same injury, disability, or death for which benefits are claimed under this act pursuant to any other workers’ compensation law . . . shall be credited against any liability imposed by this act.” (Emphasis added.) 33 U.S.C. § 903 (e).

       In Todd Shipyards Corporation v. Director, Office of Workers’ Compensation Programs, United States Department of Labor, 848 F.2d 125 (9th Cir. 1988), the United States Court of Appeals for the Ninth Circuit considered whether the LHWCA permits an employer to deduct from an injured employee’s scheduled disability percentage the percentage of disability resulting from a previous injury for which the employee receives VA benefits. The LHWCA, as amended in 1984, specifically provides for the setoff of any amounts paid to an employee “pursuant to any other workers’ compensation law” for the same injury, disability or death for which LHWCA benefits are claimed. See footnote 7, supra. The Court of Appeals concluded that VA disability benefits are not included in the term “any other workers’ compensation law,” and, thus, cannot be credited against LHWCA recovery. In reaching this conclusion, the court noted that “the purpose of the Veterans’ Act is to prevent veterans from being disadvantaged by their military service, and that the Act is to be liberally construed to their benefit”; id., 128; and pointed to certain provisions of the VA statutes and regulations as indicative of “a congressional intent to treat disabled veterans differently from individuals injured in an occupation covered under a traditional workers’ compensation law.” Id., 129.

       We note that the Supreme Court of Oregon reached a similar conclusion in American Building Maintenance v. McLees, 296 Or. 772, 679 P.2d 1361 (1984). The question presented in McLees was virtually identical to the issue in the present case: whether Oregon’s workers’ compensation law required consideration of a previous VA disability award when determining the amount of a subsequent Oregon workers’ compensation award for injury to the same part of the body. Oregon’s statute provided in pertinent part: “Should a further accident occur to a worker who is receiving compensation for a temporary disability, or who has been paid or awarded compensation for a permanent disability, his award of compensation for such further accident shall be made with regard to the combined effect of his injuries and his past receipt of money for such disabilities.” (Emphasis added.) Or. Rev. Stat. § 656.222. In addition, the statute specifically provided: “ ‘Compensation’ includes all benefits, including medical services, provided for a compensable injury to a subject worker or the worker’s beneficiaries by a direct responsibility employer or the State Accident Insurance Fund Corporation pursuant to this chapter.” Or. Rev. Stat. § 656.005 (9). In concluding that the statute required a credit only for previous compensation paid a worker under Oregon’s workers’ compensation system, the court stated: “The word [‘compensation’] standing alone does not convey a meaning that would be unquestioned in all circumstances. As used in [the workers’ compensation statute], ‘compensation’ is a term of art, a word with a meaning peculiar to the workers’ compensation laws.” Id., 777.

       See footnote 1 of the majority opinion.

       Under General Statutes § 31-349 the employer is required to pay all awards of compensation for the first 104 weeks of the disability. After the employer has completed the payments for the 104 weeks, the compensation claim may be transferred to the Second Injury Fund, which thereafter becomes responsible for further compensation benefits.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Dennis E. Clisham v. Board of Police Commissioners of the Borough of Naugatuck et al.
    (14412)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.
    Argued June 4
    decision released August 4, 1992

      William F. Dow III, with whom was Steven D. Ecker, for the appellant (plaintiff).

      William J. St. John, Jr., for the appellees (defendants).
   Peters, C. J.

The dispositive issue in this appeal is whether the named defendant, the board of police commissioners of the borough of Naugatuck (board), acted with the impartiality mandated by the constitutional guarantees of due process when it voted to remove the plaintiff, Dennis E. Clisham, from the office of chief of police of the borough of Naugatuck. During the course of removal proceedings commenced by the board pursuant to 26 Spec. Acts 934, No. 321, § 4, the plaintiff filed a motion to disqualify in which he alleged that three members of the five member board were biased against him. The three members did not recuse themselves. After the five board members voted unanimously to remove the plaintiff from the office of chief of police and to terminate his employment with the police department, the plaintiff filed an appeal with the Superior Court pursuant to 26 Spec. Acts 934, No. 321, § 5. The Superior Court dismissed the plaintiffs appeal. The plaintiff appealed the judgment of dismissal to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse.

The following facts underlie this appeal. The plaintiff, having been a lieutenant in the Naugatuck police department, became chief of police of the borough of Naugatuck as a result of the action of the board on July 26, 1984. William Rado, then the mayor of Naugatuck and a member of the board, seconded the board’s appointment of the plaintiff to this office. In May, 1985, Terry L. Buckmiller, a political rival of Rado, was elected mayor.

On December 9, 1987, the board, comprised of six individuals who had not been on the board at the time of the plaintiff’s appointment, notified the plaintiff in writing that, following an investigation conducted by one of the attorneys for the borough, the plaintiff was being charged with eleven violations of the rules and regulations of the police department. Charges one, two and three alleged that in a Naugatuck bar on October 6, 1987, the plaintiff had threatened the lives of two individuals and had “solicit[ed] a physical assault” upon another in violation of rule 17, § 1 (7), (10) and/or (11) of the rules and regulations of the Naugatuck police department. Charges four and five alleged that, in a cafe on October 24, 1984, the plaintiff had assaulted an individual, had threatened his life and had threatened the lives of the individual’s family members in violation of rule 17, § 1 (7), (10) and/or (11) of the rules and regulations of the Naugatuck police department. The sixth charge alleged that the plaintiff had assaulted individuals on three separate occasions and, thus, had “demonstrat[ed] a propensity for physical assaults upon persons” in violation of rule 17, § 1 (7), (10) and/or (11).

The board commenced a series of hearings on the charges against the plaintiff on December 15, 1987. The stated purpose of the hearings was to decide whether the board would remove the plaintiff as chief of police. At the first hearing, the plaintiff made an oral motion that, “in the interest of fairness,” board member Buck-miller recuse himself from sitting on the hearings. Buckmiller complied. The parties thereafter agreed that, pursuant to 26 Spec. Acts 934, No. 321, § 4, in order to remove the plaintiff from office and terminate his employment with the police department, the remaining five members of the board would have to vote unanimously for his removal.

At the January 26, 1988 hearing, the attorney for the borough began presenting evidence on the charges against the plaintiff. At that hearing, the plaintiff made an oral motion that another board member, Rocco DeCarlo, Sr., recuse himself because DeCarlo was then a defendant in a civil action the plaintiff had brought in the United States District Court. Following an executive session to discuss the motion, the board responded that DeCarlo would recuse himself if the plaintiff would allow the remaining four board members to preside and would accept as final the actions of those four board members. The plaintiff declined the board’s offer and reminded it that the town charter provides that the chief of police can be removed only upon the unanimous vote of five board members. The hearings resumed and DeCarlo remained on the panel.

At the August 30, 1988 hearing, the plaintiff filed a motion to disqualify board members DeCarlo, Edward Mason and Robert Sharon. The motion alleged that DeCarlo had “expressed on prior occasions an animosity toward the movant and a conviction that the movant should be removed from office”; that Mason had “publicly and repeatedly expressed and maintained a belief that the movant should be removed from office and ha[d] actively taken steps to assure that that should occur”; and that Sharon had testified as a witness against the plaintiff before a grand jury. The plaintiff offered to present evidence to support his claims of bias as to each of the three board members named and attempted to call each as a witness. The board sustained an objection to calling the board members as witnesses, but did hear the testimony of two other witnesses. Although the record does not reflect that the board ever made an affirmative ruling to deny the plaintiffs motion to disqualify DeCarlo, Mason and Sharon, the hearings continued with their presence.

At the February 14, 1989 hearing, the board voted on each of the six remaining charges. By a four to one margin, the board voted that charges one and three had been proved. The board voted by a three to two margin that the second charge had been proved. It unanimously concluded that charges four and five had not been proved and that charge six had been proved. At the conclusion of the hearing, the board voted unanimously to grant a motion to dismiss the plaintiff from the Naugatuck police department for violating departmental rules and regulations. The board served a written notice of its decision on February 21, 1989.

The plaintiff appealed to the Superior Court within thirty days, as required by 26 Spec. Acts 934, No. 321, § 5, claiming that (1) he was denied a hearing by an impartial panel in violation of his due process rights, (2) the board improperly based its decision to dismiss the plaintiff on facts known at the time of his appointment, and (3) the board’s decision to remove the plaintiff violated the unanimity requirement of 26 Spec. Acts 934, No. 321, § 4. The trial court ruled against each of the plaintiff’s claims and, accordingly, rendered a judgment dismissing his appeal.

On appeal to this court, the plaintiff reasserts the three claims he raised below. Because we are persuaded that the participation of Mason in the board’s decision to dismiss the plaintiff denied the plaintiff his constitutional right to be heard by an impartial tribunal, we reverse the trial court’s judgment and direct a remand to the board for a new hearing before an impartial panel.

I

Number 321, § 4, of 26 Spec. Acts 934, provides in relevant part that “[u]pon reasonable notice and after due hearing, the board of police commissioners may remove from office, for malfeasance or for any neglect or refusal to properly perform his duties, any member or officer of said department of police protection, including the chief of police.” Because a police chief in Naugatuck can be removed from office only for “malfeasance or for any neglect or refusal to properly perform his duties,” the plaintiff has a property interest in his position as chief of police that is protected by the due process clause of the fourteenth amendment to the United States constitution; see Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538-39, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985); Bartlett v. Krause, 209 Conn. 352, 366-67, 551 A.2d 710 (1988); Lee v. Board of Education, 181 Conn. 69, 71-73, 434 A.2d 333 (1980); and by article first, § 8 of the Connecticut constitution. See Lee v. Board of Education, supra, 71-72 (“[article one, section eight of our state constitution . . . given the same effect as the fourteenth amendment to the federal constitution”); see also Rodo v. Board of Education, 216 Conn. 541, 555, 583 A.2d 102 (1990); Petrowski v. Norwich Free Academy, 199 Conn. 231, 234, 506 A.2d 139, appeal dismissed, 479 U.S. 802, 107 S. Ct. 42, 93 L. Ed. 2d 5 (1986).

In our analysis of the plaintiffs claim that his due process rights were violated, we must balance “the governmental interest in existing procedures against the risk of erroneous deprivation of a private interest through the use of these procedures.” Petrowski v. Norwich Free Academy, supra, 235. That analysis starts from the proposition that the board was acting in a quasi-judicial capacity when it undertook dismissal proceedings against the plaintiff. See id., 234; Catino v. Board of Education, 174 Conn. 414, 417, 389 A.2d 754 (1978). “At the core of due process is the requirement for an impartial tribunal. See Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927). Due process demands . . . the existence of impartiality on the part of those who function in judicial or quasi-judicial capacities.” (Internal quotation marks omitted.) Rado v. Board of Education, supra, 556; see also Schweiker v. McClure, 456 U.S. 188, 195, 102 S. Ct. 1665, 72 L. Ed. 2d 1 (1982).

“The applicable due process standards for disqualification of administrative adjudicators do not rise to the heights of those prescribed for judicial disqualification.” Petrowski v. Norwich Free Academy, supra, 238; see Jutkowitz v. Department of Health Services, 220 Conn. 86, 100, 596 A.2d 374 (1991). “The mere appearance of bias that might disqualify a judge will not disqualify an arbitrator.” (Internal quotation marks omitted.) Rado v. Board of Education, supra, 556. Moreover, there is a presumption that administrative board members acting in an adjudicative capacity are not biased. Jutkowitz v. Department of Health Services, supra; Rado v. Board of Education, supra. “To overcome the presumption, the plaintiff . . . must demonstrate actual bias, rather than mere potential bias, of the board members challenged, unless the circumstances indicate a probability of such bias ‘too high to be constitutionally tolerable.’ ” Rado v. Board of Education, supra, quoting Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975). The plaintiff has the burden of establishing a disqualifying interest. Jutkowitz v. Department of Health Services, supra; Petrowski v. Norwich Free Academy, supra, 236.

In order to prove bias as a ground for disqualification, the plaintiff must show more than an adjudicator’s “announced previous position about law or policy . . . .” 3 K. Davis, Administrative Law (2d Ed. 1980) § 19.2, p. 372; see also Hortonville Joint School District No. 1 v. Hortonville Education Assn., 426 U.S. 482, 493, 96 S. Ct. 2308, 49 L. Ed. 2d 1 (1976). He must make a showing that the adjudicator has prejudged adjudicative facts that are in dispute. 3 K. Davis, supra, § 19.4, p. 382. “A tribunal is not impartial if it is biased with respect to the factual issues to be decided at the hearing.” Miller v. Mission, 705 F.2d 368, 372 (10th Cir. 1983). “The test for disqualification has been succinctly stated as being whether ‘a disinterested observer may conclude that [the board] has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it.’ Gilligan, Will & Co. v. SEC, 267 F.2d 461, 469 (2d Cir.), cert. denied, 361 U.S. 896, 80 S. Ct. 200, 4 L. Ed. 2d 152 (1959).” Cinderella Career & Finishing Schools, Inc. v. Federal Trade Commission, 425 F.2d 583, 591 (D.C. Cir. 1970); see also Charlottesville v. Federal Energy Regulatory Commission, 774 F.2d 1205, 1212 (D.C. Cir. 1985), cert. denied, 475 U.S. 1108, 106 S. Ct. 1515, 89 L. Ed. 2d 914 (1986).

II

To support his motion to disqualify Mason, the plaintiff, at the August 30, 1988 hearing, offered the testimony of Carl Miele, then Naugatuck’s Democratic Town Chairman and formerly a political advisor to Buckmiller during his 1985 and 1987 mayoral campaigns. Miele testified that Buckmiller’s “first and foremost campaign pledges” had been to “get rid of Chief Dennis Clisham” and that Buckmiller had made public statements to that effect. He testified that, prior to Mason’s appointment to the board, he and Mason had been members of a “small group of close advisors” to Buckmiller, to which he referred as an “inner circle.” He testified that this group, consisting of five members, had met regularly over an eighteen month period following Buckmiller’s election to the office of mayor in May, 1985. Miele responded affirmatively when asked whether, both before and after Buck-miller’s election as mayor, Mason had expressed “support for the proposition that Mr. Clisham shouldn’t be police chief.”

Miele also testified concerning Mason’s efforts to amend the unanimity requirement of 26 Spec. Acts 934, No. 321, § 4. Miele told the board that, prior to Mason’s appointment to the board, Mason’s “main objective [had been] the police regulations.” The new regulations “were to include that the police chief would be dismissed by a majority instead of a unanimous vote.” He testified that the purpose of the effort to change the unanimity requirement had been “to dump Clisham.”

The plaintiff asked Miele at the hearing whether it had been brought to his attention through the meetings of the “inner circle,” that “there was to be a meeting concerning Chief Clisham with certain members of the Board of Police Commissioners.” Miele replied that he had heard in advance that this meeting was to be held and further testified that “[i]t was a meeting where the Borough attorney attended, Mr. Mason attended, a quorum attended, the Mayor attended, and was an illegal meeting where a quorum was present.” He stated that “[t]hey were going to meet and discuss Chief Clisham.”

The plaintiff also submitted evidence to the board of a statement that Mason had made to a reporter during the pendency of the removal proceedings. The August, 1988 edition of Connecticut Magazine contained an article focusing on the politics of Naugatuck that, as the trial court observed, “can reasonably be described as favorable to Buckmiller and contains some unfavorable statements by Buckmiller regarding Clisham.” The article chronicled Rado’s tenure as mayor, the transition to Buckmiller as mayor and the troubles that had plagued and continued to plague the plaintiff as chief of police. The article stated that “[f|rom the very beginning, Buckmiller made no secret of the fact that if he had the power, he would fire Clisham immediately.” The plaintiff offered into evidence a copy of the July 26, 1988 Waterbury Republican, which contained the following quote attributed to Mason: “ ‘Being a supporter of Buckmiller, I thought [the Connecticut Magazine article] was great. ... I thought it was devastating] for Clisham, Rado and company. Whoever wrote it, he’s a friend of mine. Of course, if you’re a Rado supporter, you’re not going to like it.’ ” At the September 20, 1988 hearing, the plaintiff offered the testimony of Terry Corcoran, the reporter who wrote the July 26, 1988 article. Coreoran testified that Mason had made the statement that appeared in the July 26 article. He stated that he had chosen to interview Mason because he had been aware that Mason was “in the inner circle with Buckmiller.” Corcoran also testified that Mason’s reference to Clisham was spontaneous and had not been elicited by Corcoran, i.e., that it had not come in response to a question about Clisham.

In 1991, the plaintiff deposed Buckmiller, and introduced in the trial court the transcript of the deposition as additional evidence of Mason’s bias. Buckmiller stated that, even before he had announced his candidacy, he had believed and had openly stated that the plaintiff should not have been appointed as chief of police. Buckmiller agreed that the plaintiff’s management of the police department was an issue during his first mayoral campaign. He stated that he and Mason, who had been one of his political supporters, had become “good friends” in January of 1985. Buckmiller stated that Mason had acted as an advisor during his mayoral campaign. He acknowledged that during his mayoral campaign, he had spoken frequently with Mason, approximately once per day. Buckmiller continued to consult frequently with Mason after the election. Buckmiller admitted that in November, 1985, he had publicly stated that the plaintiff should be removed as chief of police.

Buckmiller confirmed Miele’s testimony regarding the effort to amend the regulations to require less than a unanimous vote to remove the chief of police. This amendment was deemed necessary because two of Rado’s appointees remained on the board and, consequently, there were not sufficient votes on the board to remove the plaintiff from the office of chief of police. Buckmiller assigned to Mason the task of amending the regulations to require less than a unanimous vote for removal. The effort was, however, ultimately abandoned.

Buckmiller acknowledged that he had had a “mission” to clean up the town of Naugatuck and that Mason had become an ally in this mission. Although Buckmiller stated that Mason had “always told me he liked Ned Clisham,” and that he did not remember Mason saying that “we should get rid of Ned Clisham,” Buckmiller responded affirmatively when asked: “And whether Ted Mason liked or didn’t like Ned Clisham or whether you did or didn’t like Ned Clisham, the police chief, Ned Clisham, was a problem; isn’t that correct?”

Buckmiller also confirmed Miele’s testimony concerning the November, 1986 illegal meeting attended by Mason and four members of the board, including Buck-miller. The two board members who were holdovers from the Rado administration were not present at that meeting. Buckmiller acknowledged that those in attendance at the illegal meeting had agreed that the office of the chief of police was not being “fulfilled properly” and that the plaintiff should be replaced.

On October 6, 1987, Buckmiller appointed Mason and Maruta Jancis to fill two vacancies on the board. Buck-miller indicated in his deposition that he would have appointed only someone who shared his feelings about cleaning up the town and that he had known that Mason shared his views about the police department and the position of police chief. The board notified the plaintiff of the charges against him just over two months after Mason’s appointment to the board.

III

The board contends that, for three reasons, this factual showing is insufficient as a matter of law to demonstrate Mason’s prejudgment of the plaintiff’s alleged misconduct. The board asserts that: (1) the plaintiff failed to assert his claim of Mason’s bias in a timely manner; (2) the evidence adduced by the plaintiff failed to demonstrate that Mason had prejudged any issue that was before the board; and (3) even if Mason should have been disqualified, the doctrine of necessity requires this court to uphold the board’s decision to remove the plaintiff. We are unpersuaded.

A

A claim of bias must be raised in a timely manner. “The failure to raise a claim of disqualification with reasonable promptness after learning the ground for such a claim ordinarily constitutes a waiver thereof.” Henderson v. Department of Motor Vehicles, 202 Conn. 453, 462, 521 A.2d 1040 (1987). One court has noted that “a challenge to a judge for bias and prejudice must be made at the first opportunity after discovery of the facts tending to prove disqualification. ... To hold otherwise would be to allow a litigant to pervert and abuse the right extended to him at the cost to the other party of unnecessary expense and labor and to the public of the unnecessary disruption of the conduct of the courts.” (Citation omitted.) Chafin v. United States, 5 F.2d 592, 595 (4th Cir.), cert. denied, 269 U.S. 552, 46 S. Ct. 18, 70 L. Ed. 407 (1925); see Duffield v. Charleston Area Medical Center, Inc., 503 F.2d 512, 515 (4th Cir. 1974) (“claim of disqualifying bias or partiality on the part of a member of . . . an administrative agency must be asserted promptly after knowledge of the alleged disqualification”). Moreover, “we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the [hearing].” (Internal quotation marks omitted.) Henderson v. Department of Motor Vehicles, supra.

In addressing the issue of timeliness, the trial court found that “it would be . . . quite surprising if Clisham had not known of the facts he alleges at the time of the campaign since Clisham was, or so he claims, a major issue in that campaign.” Consequently, it declined to consider any claims of bias other than the claim stemming from Mason’s statement to Corcoran of the Waterbury Republican, which, the trial court stated, had been raised in a timely manner.

We conclude that the plaintiff timely asserted his claim that Mason was impermissibly biased and that all relevant evidence was admissible to substantiate that claim. First, although the plaintiff was undoubtedly aware of Buckmiller’s desire to have him removed as chief of police, the record is devoid of evidence tending to show that the plaintiff knew, or should have known, the extent of Mason’s behind the scenes participation in Buckmiller’s campaign to remove the plaintiff from office, prior to obtaining that information from Miele. Miele, who, as a former close advisor to Buck-miller and member of the “inner circle” with Mason, was instrumental in substantiating the plaintiffs claim that Mason was biased, apparently did not come forward until May or June, 1988, with the information he gave to the board at the August 30, 1988 meeting. This record does not provide support for the trial court’s contrary finding. The plaintiff raised the issue about Mason’s bias at a hearing of the board soon after his discovery of the facts that would provide evidence to support such a claim.

Second, once the plaintiff raised his claim of bias following the publication of Mason’s statement in the Waterbury Republican, a claim that the board concedes was timely, the prior evidence of bias was relevant to substantiate that claim. The plaintiff’s claim was based upon evidence of bias that was cumulative in nature. We do not look at each piece of evidence in isolation and treat it as a separate and distinct claim of bias. Rather, to determine whether there was actual bias or a “probability of such bias too high to be constitutionally tolerable”; (internal quotation marks omitted) Rado v. Board of Education, supra, 556; we look at the uncontroverted evidence of Mason’s role as an advisor and consultant to Buckmiller both before and after the mayoral campaign, his participation in the illegal meeting of a quorum of board members, his attempt to amend the regulations to eliminate the unanimity requirement and his statement to Corcoran of the Waterbury Republican during the pendency of the removal hearings. The plaintiff cannot, therefore, be deemed to have waived his claim that Mason was impermissibly biased.

B

We turn next to the board’s contention that the plaintiff has failed to sustain his burden of proving that Mason had prejudged any issue that was before the board. In addressing the sufficiency of the evidence adduced by the plaintiff, we confront both a procedural and a substantive question. Procedurally, what is the appropriate standard of review of the determination of the trial court concluding that the evidence was insufficient? Substantively, what should our conclusion be?

As a procedural matter, a trial court adjudicating an administrative appeal that raises an issue of bias will often hold an evidentiary hearing at which testimony about the presence or absence of bias is presented by the interested parties. In such circumstances, “[b]ecause the existence of actual bias on the part of a board member present[s] an issue of fact on which the plaintiff [has] the burden of proof, the determination of the trial court that the evidence did not establish such bias cannot be overturned, unless the subordinate facts found or the admitted or undisputed facts would require a different conclusion as a matter of law.” Rado v. Board of Education, supra, 561. In the present case, however, the trial court heard no testimony on the issue of bias, although it had the authority to do so under § 7-278. The question, therefore, arises whether we should defer to the trial court’s factual findings that were derived from its review of the same administrative record that is presently before us. We conclude that such deferral is not warranted.

“[C]redibility of witnesses and the determination of factual issues are matters within the province of [the board]”; (internal quotation marks omitted) Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 540-41, 525 A.2d 940 (1987); and, as noted above, the existence of bias is an issue of fact. Nevertheless, we hold that the uncontradicted evidence of Mason’s bias was overwhelming and, therefore, conclude as a matter of law that Mason’s participation in the hearings violated the plaintiff’s due process right to an impartial panel. Miele’s testimony before the board, which was confirmed in many respects through the deposition testimony of Buckmiller, and which has never been contradicted by the board, demonstrates a probability of bias “ ‘too high to be constitutionally tolerable.’ ” Rado v. Board of Education, supra, 556. A disinterested observer, viewing the undisputed evidence, would necessarily conclude that Mason had in some measure adjudged the facts of the plaintiff’s case in advance of hearing it. Cinderella Career & Finishing Schools, Inc. v. Federal Trade Commission, supra, 591.

The present case is analogous, on its merits, to Staton v. Mayes, 552 F.2d 908 (10th Cir. 1977). The plaintiff in Staton was the superintendent of a school district in Oklahoma. The defendants were three members of a five member board that had caused the plaintiff’s dismissal on charges of willful neglect of duty and incompetence. Id., 909-10. In that case, the plaintiff presented undisputed evidence that board member Mayes had made public statements in his campaign for election to the board concerning the plaintiff and that he had “pledged to seek a new top level administration for the schools . . . and [stated that] it had become apparent to him that the trouble lay with the superintendent, and that he would vote to make the necessary change.” Id., 913. Board member Moore “admitted going to visit with a board member . . . and saying there was a possibility [that the] plaintiff would be leaving and if they could ‘be together on the board and not disrupt the board, where we could continue to have school for children, it would be best for all of us.’ ” Id., 914. Board member Wade admitted telling a board member that the plaintiff “ ‘has got to go.’ ” Id. The court, applying the test enunciated in Cinderella Career & Finishing Schools, Inc. v. Federal Trade Commission, supra, stated that, although each board member testified that he had based his decision to vote for dismissal solely upon the evidence presented at the hearings, there was sufficient evidence to conclude that the board was not impartial and, thus, that the plaintiff’s due process rights had been violated. Staton v. Mayes, supra, 914-15.

We recognize that the statement made by Mayes in Staton that he would “vote to make the necessary change” was more direct evidence of the prejudgment of issues than any statement attributable to Mason. The description of the other two board members meeting with yet another board member and discussing the school superintendent, however, is very similar to Miele’s testimony about Mason’s private actions regarding the plaintiff. In the guise of cleaning up the police department, Mason and Buckmiller pursued possible ways to “dump” the plaintiff, including amending the regulations to require less than a unanimous vote for removal. They held a secret meeting, which was attended by Mason, who had not yet been appointed to the board, Buckmiller and only those members of the board who had been appointed by Buckmiller. At that meeting they discussed the plaintiff and his management of the police department. Moreover, it is highly relevant that Mason’s statement to Corcoran, though perhaps less specific than the public statements made by the board member in Staton during his bid for election to the board, was made at a time when Mason was a police commissioner and at a time when the removal hearings were ongoing and evidence was still being taken.

When Mason’s statement in the Waterbury Republican is viewed against the backdrop of all of the other evidence of Mason’s bias arising prior to the hearings, we are convinced that the plaintiff has successfully demonstrated that Mason was not capable of judging fairly the ultimate issue of whether the plaintiff should have been dismissed from his position. See Hortonville Joint School District No. 1 v. Hortonville Education Assn., supra, 493. The totality of the evidence did not demonstrate a mere stance on general policy issues; see id., 492-93; nor is this a case where statements were made during the investigation of charges against the plaintiff. See Withrow v. Larkin, supra, 52-55. Rather, the evidence overwhelmingly demonstrated a high probability of bias in favor of removing the plaintiff as chief of police that existed both before and during the hearings.

The board attempts to rebut the inference that Mason was impermissibly biased by focusing upon Mason’s votes on the underlying charges. It emphasizes that Mason voted against a finding that five of the six charges against the plaintiff had been proved. Mason, however, voted unanimously with the remaining four members of the board on the most important factual issue of the entire hearings, i.e., whether to remove the plaintiff as chief of police. The fact that Mason voted in favor of the plaintiff on five charges that did not require a unanimous vote does not negate in any way the substantial evidence tending to show that Mason had prejudged the removal issue.

We conclude, therefore, that Mason’s participation in the hearings deprived the hearings “of that fairness and impartiality necessary to that fundamental fairness required by due process.” National Labor Relations Board v. Webb Ford, Inc., 689 F.2d 733, 737 (7th Cir. 1982). The plaintiff cannot be ousted from his office on the basis of so tainted a hearing.

C

The board claims, finally, that, even if the record supports a conclusion that Mason was not an impartial adjudicator, “the administrative rule of necessity mandates that the board’s decision to terminate Chief Clisham must stand.” Number 321, § 2, of 26 Spec. Acts 934, provides that the board of police commissioners of the borough of Naugatuck shall consist of the mayor and five other members appointed by the mayor. Section 4 of the same act provides that the chief of police may be removed from office only upon “an affirmative vote of five members of the board of police commissioners.” No other tribunal has been given the authority to remove the chief of police, nor is there a procedure for replacing a board member who is disqualified from hearing an isolated case. The board asserts that, because there is no provision for replacing a disqualified board member, we must resort to the doctrine of necessity to uphold the board’s decision to remove the plaintiff. We do not agree.

We have recognized that the doctrine of necessity may operate to permit participation in adjudicative proceedings by someone who would otherwise be disqualified. “ ‘Disqualification must yield to necessity where to disqualify would destroy the only tribunal in which relief could be had and thus preclude determination of the issue. In such case it has been held, consistently, the court must act no matter how disagreeable its task maybe.’ ” Dacey v. Connecticut Bar Assn., 170 Conn. 520, 524, 368 A.2d 125 (1976). The doctrine of necessity applies to administrative tribunals as well as to courts. 3 K. Davis, supra, § 19.9, pp. 404-405.

We are unpersuaded that the doctrine of necessity validates the plaintiffs ouster in the circumstances of this case. We conclude, to the contrary, that the plaintiffs constitutional right to a fair hearing before an impartial tribunal must be preserved by a remand for a new administrative hearing. The board does not contest the seriousness of the plaintiffs property interest in retention of his position as chief of police. It would be a miscarriage of justice to uphold the board’s actions in this instance merely because the town has not provided a procedure for replacing disqualified board members. There can be no public confidence in a decision rendered by a board whose members include one demonstrating not merely an associational relationship to one of the parties, as in Dacey v. Connecticut Bar Assn., supra, but prejudgment of the very issue that the board was authorized to determine.

We need not determine what alternatives the board might have pursued in order to proceed after Mason’s disqualification. Some courts have suggested that board members who have disqualifying interests could remedy the situation by resigning. See, e.g., State ex rel. Miller v. Aldridge, 212 Ala. 660, 664, 103 So. 835 (1925); Stahl v. Board of Supervisors, 187 Iowa 1342, 1353, 175 N.W. 772 (1920). Because Mason is no longer a member of the board, we presume that on remand the board will be so constituted as to conduct an impartial hearing.

The judgment is reversed, and the case is remanded to the trial court with direction to remand the case to the board of police commissioners for a new hearing.

In this opinion the other justices concurred.

       Also named as defendants were the following six individuals who were on the board during the removal proceedings: John J. Prior, Edward J. Mason, Jr., Maruta Jancis, Rocco J. DeCarlo, Terry L. Buckmiller and Robert Sharon.

       Number 321, § 4, of 26 Spec. Acts 934, provides: “Upon reasonable notice and after due hearing, the board of police commissioners may remove from office, for malfeasance or for any neglect or refusal to properly perform his duties, any member or officer of said department of police protection, including the chief of police. Such removal shall require an affirmative vote of all five members of the board of police commissioners.”

       Number 321, § 5, of 26 Spec. Acts 934, provides: “Any person in the department of police protection, including the chief of police, removed from office as provided in section 4 of this act, may appeal from the action of said board of police commissioners, within thirty days from the date of notice of such action, to the court of common pleas for the judicial district of Waterbury at Waterbury. Said court of common pleas may approve, modify or revoke the action of said board and may tax costs in its discretion. The action of the board shall remain in effect pending such an appeal, but, if said court shall modify or revoke the action of said board, its decree may relate back to the date of the action of said board.”

       Number 321, § 3, of 26 Spec. Acts 934, provides in relevant part: “The board of police commissioners shall administer, maintain and control the department of police protection of the town and borough, and shall appoint all policemen, both members and officers including the chief of police . . . . The board shall set up all regulations pertaining to the police department, including standards governing the conduct and discipline of the members, officers and chief of police, standards governing the selection of members to the police department, and standards governing the promotions of members and officers in the police department, said standards of selection and promotion to include written examinations.”

       Rule 17, § 1 of the rules and regulations of the police department of the borough of Naugatuck provides that a police officer may be removed or suspended for “(7) immoral conduct . . . (10) Conduct unbecoming a member of the Police Force[; and] (11) Conduct injurious to the public peace and welfare.”

       Charges seven through eleven each alleged separate incidents of misconduct that were subsequently dismissed by the board at the August 23, 1988 hearing and are therefore irrelevant to this appeal.

       See footnote 2, supra.

       The special act adopted in 1953 and amended in 1955 provided that the mayor was to be a nonvoting member of the board of police commissioners. Number 321, § 4, of 26 Spec. Acts 934, required an affirmative vote of all five voting members of the board. In 1969, the legislature enacted 34 Spec. Acts 33, No. 30, § 1, which authorizes the mayor to vote on any matter before the board. Thus, there are now six voting members on the board. Following Buckmiller’s recusal, a unanimous vote of five remaining board members was required in order to remove the plaintiff from office, pursuant to 26 Spec. Acts 934, No. 321, § 4.

       At oral argument before the trial court, the plaintiff withdrew his claim that Sharon had been biased.

       The plaintiff also claims for the first time that the board acted improperly in finding a “propensity” for assaultive conduct on the basis of a single incident. We do not review this claim as the plaintiff did not raise it in his appeal to the trial court.

       In these circumstances, we need not determine whether the board should have granted the plaintiffs motion to disqualify DeCarlo. We also need not decide whether, in voting to remove the plaintiff from the office of chief of police, the board improperly considered facts that were known to it at the time the plaintiff was appointed to that office. Finally, we need not decide whether the board’s votes on the underlying charges violated the unanimity requirement of 26 Spec. Acts 934, No. 321, § 4.

       General Statutes § 7-278 provides in relevant part that “[n]o active head of any police department of any town, city or borough shall be dismissed unless there is a showing of just cause by the authority having the power of dismissal . . . .” This statewide “just cause” requirement was enacted in 1983. See Public Acts 1983, No. 83-212. “A special and local statute, providing for a particular case or class of cases, is not affected by a statute general in its terms, broad enough to include cases embraced in the special law, unless the intent to repeal or alter is manifest.” State ex rel. Wallen v. Hatch, 82 Conn. 122, 124-25, 72 A. 575 (1909). Because, in enacting § 7-278, the legislature has not shown a manifest intent to repeal 26 Spec. Acts 934, No. 321, § 4, to the extent that the provisions of the special act and the general statute are inconsistent, the special act is controlling. Id., 125. Consequently, the “malfeasance” standard of the special act governs this case.

       General Statutes § 7-278 provides that, in deciding an appeal brought by the head of a police department who has been dismissed, the trial court “shall review the record of such hearing, and, if it appears upon the hearing upon the appeal that testimony is necessary for an equitable disposition of the appeal, it may take evidence or appoint a referee or a committee to take such evidence as it directs and report the same to the court with his or its findings of fact, which report shall constitute a part of the proceedings upon which the determination of the court shall be made. . . .” To the extent that this provision of § 7-278 is not inconsistent with 26 Spec. Acts 934, No. 321, § .5; see footnote 3, supra; we conclude that it applied to the instant appeal. Although the trial court in the present case did not hear any additional testimony, it did admit Buckmiller’s deposition as evidence.

       Although the board asserted in its brief to the trial court that “[w]ith regard to Mr. Mason all of the allegations of bias against him, with the exception of the comment concerning the aforementioned magazine article, were known to the appellant long before August 30,1988,” it provided no evidence to support this statement. Moreover, the trial court does not indicate how it reached its conclusion that “[w]ith respect to Mason’s involvement in the May, 1985 campaign, it would be . . . quite surprising if Clisham had not known of the facts he alleges at the time of the campaign . . . ."

       Hearings were scheduled for May 24, 1988, July 12, 1988, August 23, 1988, and August 30, 1988. The July 12 and August 23 hearings were continued. Thus, if Miele came forward after May 24, the plaintiffs first opportunity to offer this evidence of bias to the board would have been at the August 30, 1988 hearing.

       See footnote 13, supra.

       The trial court stated that “[r]eviewing the record . . . the Court is unable to conclude that the record establishes a personal bias sufficiently great to require the result of the hearing to be set aside.”

       See footnote 8, supra.

       Number 520, § 1, of 27 Spec. Acts 433, provides that “[i]n the event of a vacancy in said board for any reason, including . . . resignation . . . the [mayor] shall, within thirty days of such vacancy, appoint an elector of said borough to serve for the remainder of the unexpired term.”

       Mason and DeCarlo are both deceased.


author: Berdon, J.

text:
    Frank Crocetto v. Lynn Development Corporation
    (14475)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.
    Argued April 28
    decision released August 11, 1992

      Edward T. Dodd, Jr., for the appellant (defendant).

      Deborah M. DelBuono, for the appellee (plaintiff).
   Berdon, J.

The sole issue in this appeal is whether a “subsistence allowance” provided to a former employee while enrolled in a workers’ rehabilitation program constitutes “workers’ compensation payments” within the meaning of General Statutes § 31-284b (a) so as to trigger mandatory health insurance coverage. In this case, the plaintiff, Frank Crocetto, who had been injured during the course of his employment with the defendant, Lynn Development Corporation, continued to receive health insurance coverage under the defendant’s group plan until he exhausted his permanent partial disability benefits under General Statutes § 31-308. Subsequently, the plaintiff received a weekly subsistence allowance when he enrolled in a workers’ rehabilitation program established under General Statutes § 31-283a. While receiving the weekly subsistence allowance, he sought to have his health insurance coverage reinstated. The workers’ compensation commissioner (commissioner) concluded that the plaintiff and his family had been entitled to insurance coverage from the time the coverage had been terminated to the time the plaintiff’s participation in the rehabilitation program had ended. The commissioner, therefore, ordered the defendant to reimburse the plaintiff for medical expenses incurred during that period. The compensation review division (CRD) affirmed the commissioner’s decision. The defendant appealed, and we now reverse.

Although the parties dispute several factual allegations, the following facts are not contested. In November, 1984, during the course of his employment with the defendant, the plaintiff injured his back. The injury resulted in a 10 percent permanent partial disability of the back. At the time of the injury, the defendant supplied Blue Cross/Blue Shield health insurance to the plaintiff and his family. Following the injury, the plaintiff was no longer able to work for the defendant.

The plaintiff received temporary total disability benefits from November 30, 1984, until October 21, 1985, under the Workers’ Compensation Act (act). Thereafter, he received permanent partial disability benefits under the act. During the period in which these temporary and permanent benefits were paid under § 33-308, the defendant continued to provide health insurance coverage to the plaintiff and his family pursuant to § 31-284b. When the plaintiff exhausted his permanent partial disability benefits in October, 1986, the defendant terminated the plaintiff’s health insurance coverage.

Sometime after October, 1986, the plaintiff received eight or nine weeks of supplemental partial permanent disability payments pursuant to General Statutes § 31-308a. In September, 1987, the plaintiff enrolled in the vocational rehabilitation training program under § 31-283a. From September, 1987, to August 25,1989, the period during which the plaintiff had attended the program, the CRD found that the plaintiff had received a weekly subsistence vocational rehabilitation allowance, from the division of workers’ rehabilitation, which was purportedly established under § 31-283a.

Because the plaintiff was receiving this subsistence allowance, he sought to reinstate his health insurance coverage in accordance with § 31-284b (a). The commissioner concluded that the plaintiff’s receipt of the subsistence allowance triggered the statutory mandate for the defendant to provide health insurance coverage to the plaintiff and his family. Accordingly, the commissioner determined that the plaintiff should have been covered from October, 1986, when the health insurance coverage had been terminated, to August 25, 1989, when the plaintiff finished his vocational rehabilitation training and the subsistence allowance was terminated. He ordered the defendant to reimburse the plaintiff for any medical expenses that Blue Cross/Blue Shield would have covered during that period. Pursuant to the defendant’s motion for articulation, the commissioner clarified his opinion and held that the plaintiff’s family was also entitled to health insurance coverage. The defendant appealed to the CRD, which affirmed the decision of the commissioner.

In this appeal, the defendant argues that § 31-284b (a) does not require an employer to provide health insurance coverage to an employee receiving a subsistence allowance and that the CRD, therefore, improperly affirmed the commissioner’s conclusion that it was obligated to provide health insurance coverage to the plaintiff and his family. We agree.

Section 31-284b (a) mandates that an employer provide an injured employee with the same health insurance coverage that the employee had on the date of injury during the period in which the employee is “eligible to receive or is receiving workers’ compensation payments” pursuant to the act. The issue, therefore, is whether a subsistence allowance is such a payment under the act. We normally accord great deference to the construction of a statute by the agency charged with its enforcement and only reverse when the agency has acted unreasonably, arbitrarily, illegally or in an abuse of its discretion. Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986). We conclude, however, that a subsistence allowance is not a payment authorized by the act and, therefore, health insurance coverage should not be reinstated because of the award of such an allowance.

The plaintiff conceded at oral argument that a subsistence allowance is not authorized by statute or by administrative regulations. Instead, the plaintiff maintains that the first director of the workers’ rehabilitation division initiated the distribution of the subsistence allowance in 1972 by drawing upon funds that were created under General Statutes § 31-283b to finance the workers’ rehabilitation division. Although the record is silent with respect to the workers’ rehabilitation division’s authority to award a subsistence allowance, we do not dispute that this may very well be the policy of the division. The mere fact that a practice may exist to award subsistence allowances to participants in the rehabilitation program, however, does not persuade us that the receipt of such an allowance triggers an employer’s obligation to provide health insurance coverage to an injured employee and his or her family. To constitute the basis for triggering the obligation to provide health insurance coverage, the subsistence allowance must have been required either by statute or by regulation authorized by the legislature and promulgated in accordance with the procedure outlined in the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq. Salmon Brook Convalescent Home v. Commission on Hospitals & Health Care, 177 Conn. 356, 417 A.2d 358 (1979). We conclude that the ad hoc award of subsistence allowances does not qualify as “workers’ compensation payments” under § 31-284b. Accordingly, we reverse the decision of the CRD.

This conclusion, however, does not end our inquiry. At oral argument, the defendant conceded that it had prematurely terminated the plaintiff’s family health coverage while the plaintiff was receiving payments under § 31-308a. The parties, however, dispute both the actual time the plaintiff received the payments and the length of time the commissioner intended to extend the payments. There is nothing in the record that enables us to resolve this dispute. We conclude, therefore, that the matter should be remanded to the commissioner for a determination of the period that the plaintiff should have received the payments under § 31-308a. Once that determination is made, the commissioner shall order the defendant to reimburse the plaintiff for any medical expenses incurred during that period by the plaintiff and his family that would have been covered by the defendant’s health insurance carrier.

The decision of the compensation review division is reversed, and the case is remanded to the compensation review division with direction to remand the case to the workers’ compensation commissioner for further proceedings consistent with this opinion.

In this opinion the other justices concurred.

       General Statutes § 31-284b (a) provides: “In order to maintain, as nearly as possible, the income of employees who suffer employment-related injuries, any employer, as defined in section 31-275, who provi,des accident and health insurance or life insurance coverage for any employee or makes payments or contributions at the regular hourly or weekly rate for full-time employees to an employee welfare fund, as defined in section 31-53, shall provide to such employee equivalent insurance coverage or welfare fund payments or contributions while the employee is eligible to receive or is receiving workers’ compensation payments pursuant to this chapter, or while the employee is receiving wages under a provision for sick leave payments for time lost due to an employment-related injury.” (Emphasis added.)

       General Statutes § 31-308 provides in relevant part: “(a) If any injury for which compensation is provided under the provisions of this chapter results in partial incapacity, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury and the amount he is able to earn after such injury, except that when (1) the physician attending an injured employee certifies that such employee is unable to perform his usual work but is able to perform other work, (2) such employee is ready and willing to perform such other work in the same locality and (3) no such other work is available, such employee shall be paid his full weekly compensation subject to the provisions of this section. In either of the above cases, such compensation shall in no case be more than the maximum weekly benefit rate set forth in section 31-309 and shall continue during the period of partial incapacity but no longer than seven hundred and eighty weeks. If the employer procures for an injured employee employment suitable to his capacity, the wages offered in such employment shall be taken as the earning capacity of the injured employee during the period of such employment.”

       General Statutes § 31-283a provides: “There shall be within the workers’ compensation commission a division of workers’ rehabilitation which shall provide rehabilitation programs for employees suffering compensable injuries within the provisions of this chapter, which injuries disabled them from performing their customary or most recent work. Said division shall be administered by a full-time salaried director who shall be appointed under the provisions of chapter 67. Said director shall establish rehabilitation programs which shall best suit the needs of such injured employees and shall make such programs available in convenient locations throughout the state. After consultation with the workers’ compensation commission and the labor commissioner, said director may establish fees for such programs, so as to provide the most effective rehabilitation programs at a minimum rate. In order to carry out the provisions of this section, section 31-283b and section 31-283c, the commission shall adopt regulations, on or before October 1, 1986, in accordance with the provisions of chapter 54 and, subject to the provisions of said chapter 67, provide for the employment of such assistants as are necessary.”

       The defendant appealed to the Appellate Court pursuant to General Statutes § 31-30 lb, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       The parties disagree on the period of time in which the plaintiff received the payments pursuant to General Statutes § 31-308a and the length of time for which the commissioner intended to extend these payments to the plaintiff.

       General Statutes § 31-308a provides: “In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partial permanent disability equal to two-thirds of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury and the weekly amount which such employee will probably be able to earn thereafter, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age, but not more than the maximum provided in section 31-309. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury. The duration of such additional compensation shall be determined upon a similar basis by the commissioner.”

       Although the defendant questions whether the record supports the CRD’s conclusion that the plaintiff had received the subsistence allowance while attending classes in the vocational rehabilitation program, it failed to seek any clarification before the CRD. Moreover, at oral argument before this court, the defendant did not contest the plaintiff’s repeated assertions that he had received the allowance.

       General Statutes § 31-283b provides: “In order to finance the cost of the rehabilitation division and the programs established by its director, each employer, other than the state and any municipality participating for purposes of its liability under this chapter as a member in an interlocal risk management agency pursuant to chapter 113a, shall annually, on or before July first, pay to the state treasurer for the use of the state for the cost of operating this division a sum equal to two per cent of the total amount of money expended by such employer or by a private insurance carrier on his behalf in payment of his liability under this chapter for the preceding calendar year. The sums received shall be kept separate and apart from all other state moneys and the faith and credit of the state of Connecticut is pledged for their safekeeping. The treasurer shall be the custodian of said fund and all disbursements therefrom shall be made by him or Ms deputies. The moneys of said fund shall be invested by him in accordance with law. Interest, income and dividends from such investments shall be credited to the fund. Each such employer and each private insurance carrier acting on behalf of any such employer shall annually, on or before April first, report to the treasurer, in the form prescribed by the treasurer, the amount of money expended by or on behalf of the employer in such payments for the preceding calendar year.”

       According to the plaintiff, the award of the allowance is conditioned upon approval by the director of the workers’ rehabilitation division and is limited by the amount of money available in the fund. Apparently, the guidelines for the disbursement of the subsistence payments are contained in article 4.1 of the “standard gmdelines” for the division of workers’ rehabilitation, which the workers’ compensation commission has reviewed and endorsed.

       The defendant asserted at oral argument that although the plaintiff is entitled to medical insurance coverage during the time he was eligible for payments pursuant to General Statutes § 31-308a, such insurance coverage did not extend to members of the plaintiffs family. The defendant, however, conceded that it did not appeal the CRD’s determination that it was responsible for insurance coverage for the plaintiffs family and, therefore, it must provide that coverage retroactively for the plaintiff’s family as well as for the plaintiff.

       The plaintiff argues that he received these payments for eight or nine weeks beginning on January 7, 1987, and continuing until sometime in March, 1987. The defendant maintains that the plaintiff received these payments from November, 1986, to December, 1986, or January, 1987. The plaintiff further maintains that the commissioner informed him that the payments under General Statutes § 31-308a were to extend for a six month period; the defendant maintains that the payments were to expire after a twelve week period.