Per diem employees not entitled to full-salary benefits, including workers' comp, in Connecticut
The case involves an attack on a psychiatrist, who worked full-time instead of on an intermittent basis.
A Connecticut Appellate Court panel affirmed the decision of the Compensation Review Board to uphold the Workers’ Compensation commissioner for the Eighth District’s determination that a per diem employee was not entitled to full salary disability benefits.
The plaintiff, George Kelly, argued that the commissioner’s decision should not have relied on a supersedence appendix and cost sheet for “substantive purposes” and failed to assign the burden of proving the plaintiff was not entitled to benefits to the defendant, the opinion said.
In addition, the plaintiff claimed that the commissioner’s decision had inconsistent conclusions after the plaintiff’s motion to correct. Further, the plaintiff contended that the decision had wrongly concluded that a 1989 memorandum of agreement between the plaintiff’s union and the state superseded a disability compensation statute for per diem employees, and improperly found that a 1993 collective bargaining agreement, which added psychiatrists as per diem employees, did not need to go through “a new supersedence process.”
The plaintiff was employed as a per diem psychiatrist by the Department of Mental Health and Addiction Services, the defendant. According to the complaint, the plaintiff regularly worked full time rather than on an intermittent basis.
Counsel for the plaintiff, John D’Elia of D’Elia Gillooly DePalma, did not immediately respond to a request to comment.
In 2017, Kelly was struck in the head multiple times by a patient, the complaint said. He suffered a concussion, which temporarily prevented him from working.
Kelly was paid weekly temporary disability benefits that were equal to his regular pay and work hours, the complaint said. When he filed a workers’ compensation claim, the DMHAS contested his eligibility for the enhanced benefits pursuant to General Statutes §5-142 (a).
The commissioner determined that Kelly was not entitled to enhanced, full-salary disability benefits as a per diem employee. The board and the Appellate Court affirmed this decision.
Kelly disagreed with the commissioner’s reliance on exhibit K, which was the cost sheet and supersedence appendix associated with a 1989 memorandum of agreement. Exhibit K was offered to test one of the witnesses’ credibility, Kelly argued.
However, the DMHAS argued that exhibit K was admitted as a full exhibit, and was not offered for a limited purpose. The court agreed.
The court also determined that Kelly’s claim that the commissioner failed to place the burden of proving Kelly was not entitled to benefits on the DMHAS was lacking, and Kelly had the burden of proving he was a member of the company, the opinion said.
The commissioner concluded that the 1989 memorandum of agreement between the state and Kelly’s union superseded §5-142(a), but Kelly argued that because neither the agreement nor “submission package” to the legislature had been entered into evidence, the findings were not supported by evidence. The court disagreed.
“The commissioner reasonably found that, given that the heading of the cost sheet in exhibit K specifically refers to the plaintiff’s union and a ‘Memorandum of Agreement dated 12/7/89,’ a 1989 memorandum of agreement between the state and the plaintiff’s union existed and contained the provision regarding per diem nursing positions as set forth in exhibit K,” the court said.
Kelly also claimed that the commissioner’s analysis was contrary as to if per diem employees had access to enhanced benefits, or if those benefits were included in “other economic benefits” denied to per diem employees in the 1993 collective bargaining agreement.
“The plaintiff’s claim is premised on a misinterpretation of the commissioner’s original decision,” the opinion said. “Considering that portion of the conclusion in the context of the remainder of the original decision, however, it is clear that the commissioner was referring only to the regular workers’ compensation benefits set forth under the Workers’ Compensation Act, and not the enhanced, full salary benefits set forth in § 5-142(a).”
“The commissioner … reasonably concluded that the plaintiff’s right to the enhanced, full salary benefits under § 5-142(a) was superseded by a 1989 memorandum of agreement between the state and the plaintiff’s union,” the opinion said.
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