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McNulty v. City of Stamford

CASE NO. 1332 CRD-7-91-10

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

JANUARY 26, 1994

ROSEMARY MCNULTY, Dependent Widow of EDWARD MCNULTY (Deceased)

CLAIMANT-APPELLEE

CROSS-APPELLANT

v.

CITY OF STAMFORD

EMPLOYER

RESPONDENT-APPELLANT

CROSS-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

CROSS-APPELLEE

APPEARANCES:

The claimant was represented at the trial level by Joseph A. Adamo, labor relations consultant, 588 Washington Avenue, West Haven, CT 06516 and on appeal by Christopher Carveth, Esq. and Kristin Dorney Foley, Esq., Stevens, Carroll and Carveth, 31 Cherry Street, P.O. Box 432, Milford, CT 06460.

The respondent-employer was represented by Booth M. Kelly, Jr., Esq., Murphy and Beane, P.O. Box 590, New London, CT 06320.

The Second Injury Fund was represented by Robin L. Wilson, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06101.

These Petitions for Review from and relating to the October 29, 1991 Finding and Award of the Commissioner for the Seventh District were heard October 30, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Angelo L. dos Santos and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The claimant in the instant matter is the dependent spouse of a former uniformed member of the respondent’s municipal police force. On June 29, 1977 the decedent was found to be suffering from heart disease. Under the provisions of Sec. 7-433c, the decedent was entitled to a twenty per cent (20%) permanent partial disability to his heart. He was also awarded 25 weeks of compensation due to permanent and significant scarring resulting from surgery relating to his cardiac disease. The decedent’s weekly compensation rate at the time of his injury/disease was $135.00. Due to the provisions of the decedent’s collective bargaining agreement he did not sustain any wage loss and thus, never received temporary total or temporary partial benefits.

On February 4, 1991 the decedent died due to cardiac arrest. At the time of his death, the decedent was survived by his dependent spouse and son. On April 12, 1991 the Commissioner for the Seventh District approved a Finding and Award stipulated to by the claimant and the respondent in which the claimant was awarded; $4,000 for funeral expenses; dependent spouse benefits until remarriage or death, and “benefits for a dependent child until he reaches age 18 or as otherwise provided under Sec. 31-306.” See October 29, 1991 Finding paragraph 1D.

On September 11, 1991 the respondent employer moved to modify the April 12, 1991 Finding and Award and raised the following issues; (1) whether the claimant was entitled to cost of living adjustments from June 29, 1977, the date of the decedent’s injury/disease, or from February 4, 1991 the date of decedent’s death, (2) if the claimant was entitled to cost of living adjustments who was responsible for payment of the cost of living adjustments, i.e., the respondent employer or the Second Injury Fund, (3) whether the respondent employer was entitled to repayment of the $4000 burial allowance as the statutory allowance for burial expense in effect at the time of the decedent’s injury/diagnosis only permitted $1000 for burial expenses and was only to be paid in the event that the death occurred within 6 years of the date of injury/disease1, (3) whether the provisions of Sec. 31-306(i) which provided for a waiting period for compensation benefits and which was in effect at the date of the decedent’s injury or disease was applicable.

The trial commissioner concluded; (1) the claimant was entitled to cost of living adjustments from October 1, 1991, (2) cost of living adjustments were to be paid by the employer and reimbursed from the Second Injury Fund; (3) the claimant was to reimburse the employer for the payment of the $4000 funeral expense and (4) the waiting period provided in Sec. 31-306(i)2 was applicable and thus, the claimant was not entitled to compensation until the expiration of 220 weeks3.

Subsequent to the commissioner’s ruling in the instant matter a number of motions were filed by the parties. The motions filed, inter alia, sought dismissal on various procedural grounds as well as modification and submission of additional evidence. For the moment we will put aside ruling on these various motions with the exception of the claimant’s Motion for Modification. Our consideration of the claimant’s Motion for Modification at this point is based on its impact as to our conclusions in the substantive issues raised by the appellants. The claimant’s Motion for Modification and Continuance of Formal Hearing was filed September 21, 1992 and denied by the commissioner, September 30, 1992. An appeal was taken by the claimant on the commissioner’s denial of her Motion for Modification for Continuance of Formal Hearing and because we consider the legal argument raised by the Motion for Modification pertinent in our consideration of the earlier filed appeals, we refer to that motion initially in our consideration of the instant matter.

We begin by reviewing whether the commissioner erred in concluding that the claimant was not entitled to cost of living adjustments from June 29, 1977, the date of decedent’s injury/disease and only entitled to cost of living adjustments from February 4, 1991 the date of decedent’s death. We conclude that the claimant was entitled to cost of living adjustments from the date of the decedent’s injury/disease June 29, 1977.

The claimant’s claim for benefits was made under Sec. 7-433c4 which mandates that a claimant “shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under Chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of employment.” Clearly, the plain language of Sec. 7-433c supports an award for benefits pursuant to Sec. 31-306. cf. Kachaluba v. Town of Greenwich, 8 Conn. Workers’ Comp. Rev. Op. 46, 766 CRD-7-88- (1990) aff’d 217 Conn. 50 (1991); Ancona v. City of Norwa1k, 8 Conn. Workers’ Comp. Rev. Op. 49, 810 CRD-7-89-1 (1990) aff’d, 217 Conn. 50 (1991). Further, the Supreme Court in Felia v. Westport, 214 Conn. 181, 185 (1990) stated:

In construing Sec. 7-433c, our task is to discern the apparent intent of the legislature, first by an analysis of the relevant statutory language at issue and thereafter, in the event of any latent ambiguity by an examination of the statute’s legislative history and the purpose it was designed to serve. (citations omitted.) On its face, the language “compensation . . . in the same amount and the same manner” suggests that once Sec. 7-433c coverage is established, the measurement of the plaintiff’s benefits under this statute is identical to the benefits that may be awarded to a plaintiff under chapter 568. We have regularly so held; Collins v. West Haven, 210, Conn. 423, 429-30 (1989); Lambert v. Bridgeport, 204 Conn. 563, 566 (1987); Maciejewski v. West Hartford, 194 Conn. 139, 146 (1984); Bakelaar v. West Haven, 193 Conn. 59, 68-69 (1984); as has the Appellate Court. Lundgren v. Stratford, 12 Conn. App. 138, 144 (1987); Middletown v. Local 1703, 1 Conn. App. 58, 61 (1983), cert. dismissed, 192 Conn. 803 (1984).

Thus, we must next determine whether a claimant under similar factual circumstances and whose claim was brought under Chapter 568 would be entitled to cost of living adjustments. At the time of the decedent’s June, 1977 injury, Sec. 31-306 did not provide for any cost of living adjustments. Sec. 31-306 was subsequently amended, inter alia, by Public Act 77-554 which allowed for the payment to dependents of cost of living adjustments. Sec. 31-306(b)(2)(B) provided (at the time of the October 29, 1991 Finding and Award):

Sec. 31-306(b) provided:
Compensation shall be paid on account of death resulting from an accident arising out of and in the course of employment or from an occupational disease as follows . . .
Sec. 31-306(b)(2)(B) provided in pertinent part:
The weekly compensation rate of each dependent entitled to receive benefits under this section as a result of death arising from a compensable injury occurring on or before September 30, 1977, shall be adjusted as of October 1, 1977, and October 1, 1980 and thereafter, as provided herein to provide such dependent with partial cost-of-living adjustments in his weekly compensation rate . . . . Such partial cost-of-living adjustments shall be paid by the employer without any order or award from the commissioner . . . . The cost of such adjustments shall be paid by the employer or his insurance carrier who shall be reimbursed therefore from the second injury fund as provided in section 31-354 upon presentation of such vouchers and information as the treasurer shall require (emphasis ours)

The plain language of Sec. 31-306(b)(2)(B) indicates that a claimant dependent whose claim arises under Chapter 568 and whose entitlement to benefits results from a decedent’s death due to a compensable injury occurring on or before September 30, 1977, is entitled to cost of living adjustments which are to be paid by the Second Injury Fund. However, the Second Injury Fund argues on appeal that Sec. 7-433c is special or bonus legislation and is separate and distinct from Chapter 568. Further, under Sec. 7-433c the need to prove that certain injuries arose out of and in the course of employment is obviated by the claimant’s proof that he/she satisfies the prerequisites to entitlement set out in Sec. 7-433c. The Fund then argues, as Sec. 7-433c does not require proof that the injury for which compensation is claimed “arose out of and in the course of employment” the claim is removed from the realm of Chapter 568 and thus, the prerequisite to entitlement under Sec. 31-306(b)(2) is not satisfied. Therefore, the Fund argues, it is not liable for the payment of cost of living adjustments.

However, if we were to adopt the argument and reasoning of the Second Injury Fund, we would have to ignore Sec. 7-433c’s provision that a claimant under Sec. 7-433c “shall receive from his municipal employer compensation and medical care in the same amount and same manner as that provided under Chapter 568 . . . .” and our court holdings as to the purpose and intent of Sec. 7-433c. See Felia, supra.

We therefore, sustain the trial commissioner’s ruling that the claimant was entitled to cost of living adjustments and the Second Injury Fund was liable for the reimbursement to the employer for the cost of living adjustments. However, as noted previously, we reverse the trier as to the period from when the cost of living adjustments should be calculated.

The next substantive issue presented for review arises from the claimant’s appeals and Motion for Modification and Continuation of the Formal Hearing. As part of the commissioner’s Finding and Award the commissioner concluded that Sec. 31-306(i) and its provision as to a waiting period for compensation payments to dependents was in effect at the time of the decedent’s injury was, therefore, applicable. Sec. 31-306 (i) provided:

“If death occurs later than two years from the date of injury or the first manifestation of symptom of the occupational disease, the period for which compensation shall be due hereunder shall be reduced by the period for which compensation payments have been made to the deceased employee or account of such injury or occupational disease.”

Our Supreme Court considered the application of the waiting period provision of Sec. 31-306(i) in Iacomacci v. Trumbull, 209 Conn. 219 (1988). In Iacomacci, the plaintiff’s decedent suffered a compensable heart attack on February 19, 1974 and subsequently died as a result of a cardiac dysrhythmia on December 30, 1981. The dependent widow argued that the waiting period provided in Sec. 31-306(i) was repealed by Public Act 1978, 78-369 and thus, she should not be subject to the waiting period. The court rejected the plaintiff’s argument and reiterated “‘the obligations of the employer to dependents of an employee in case of death of an injured employee are . . . fixed and determined by the statute in force at the time of injury (Emphasis added.) Quilty v. Connecticut Co, 96 Conn. 124, 127 (1921).” Iacommaci, supra at 222. However, since the Supreme Court’s ruling in Iacommaci, the legislature has twice amended Sec. 31-306 so as to affect the application of the waiting period provided in former Sec. 31-306(i). In Public Act 89-68 the legislature amended Sec. 31-306 by adding subsection (c) which provided as follows:

The dependents of any deceased employee who was injured on or after January 1, 1974, and who died not later than December 31, 1981, shall be paid compensation on account of such death retroactively to the date of the employee’s death. The cost of such payment or adjustment shall be paid by the employer or his insurance carrier who shall be reimbursed therefor from the second injury fund as provided in section 31-354, as amended by section 2 of this act, upon presentation of such vouchers and information as the treasurer shall require.

Sec. 2 of Public Act 89-68 amended Sec. 31-354 in pertinent part as follows: “The fund shall be used to provide benefits set forth in subsections (b) and (c) of section 31-306, as amended by section 1 of this act, for adjustments in the compensation rate and payment of certain death benefits . . . .”

Public Act 92-31 amended Sec. 31-306 in pertinent part as follows:

(a)(1) Four thousand dollars shall be paid for burial expenses in any case where the employee died on or after October 1, 1988 . . . . (b) The dependents of any deceased employee who was injured on or after January 1, 1974 and who died not later than November 11, 1991, shall be paid compensation on account of the death retroactively to the date of the employee’s death. The cost of the payment or adjustment shall be paid by the employer or his insurance carrier who shall be reimbursed therefor from the second injury fund as provided in section 31-354 . . . .

In claimant’s Motion for Modification and Continuance of Formal Hearing the remedy provided to the claimant under Public Act 92-31 was brought to the trier’s attention and the claimant contended the reason it was not raised in the hearing before the commissioner was the act was passed by the legislature after the commissioner rendered his decision. We think the remedy provided by Public Act 92-31 is applicable as a matter of law to the claimant. Specifically, we note that Public Act 92-31 became effective while the instant matter was pending appeal. Further, the plain language contained within the public act indicates that the remedy provided is to be applied retrospectively. Although we are keenly aware as to the statutory presumption that legislation affecting substantive rights is to be applied prospectively, see e.g. Sec. 55-3, it is clear on the basis of the commissioner’s findings that the claimant falls within the class of persons to whom the pertinent parts of Public Act 92-31 are intended to apply.

Finally, we consider the various motions and appeals alleging certain procedural defects in the parties’ prosecution of the instant matter. At oral argument we ruled from the bench that we were dismissing the respondent employer’s Motions to Dismiss. For the record, the respondent employer has filed; a Motion to Vacate Claimant’s Extension of Time in Which to File Motion to Correct and Dismiss Claimant’s Appeal, a Petition for Review from trier’s denial, a Petition for Review from the Chairman’s granting the claimant an extension of time to file her reasons of appeal, various Motions to Dismiss, and a Motion to Submit Additional Evidence.

As to the procedural defect alleged by the respondent employer that the trier should not have granted the claimant’s Motion for Extension of Time to File Motion to Correct, at most, the trier’s granting of that Motion for Extension of Time to File Motion to Correct was harmless error. Even though the Motion for Extension of Time to File Motion to Correct was filed after the two week period from the October 29, 1991 Finding and Award, the failure to timely file a Motion to Correct is controlled by Administrative Regulation Sec. 31-301-45. Thus, as the time requirements set out in Administrative Regulation Sec. 31-301-4 are not statutory, a failure to comply with the time requirement may not be fatal to the consideration of the appeal as a matter of law. See Sager v. GAB Business Services, Inc., 11 Conn. App. 693, 697-98 note 5 (1987). See also, Kinney v. State, 6 Conn. App. 143 (1989), Andrews v. Sal’s Express, 2 Conn. Workers’ Comp. Rev. Op. 110, 228 CRD-4-83 (1984). Furthermore, as the commissioner denied the claimant’s Motion to Correct filed December 10, 1991 in its entirety in his ruling of December 11, 1991, we fail to see how the trier’s granting of the claimant's Motion for Extension of Time to File Motion to Correct even if beyond the time prescribed in Administrative Regulation Sec. 31-301-4 harmed the respondent employer. Thus, assuming arguendo that the commissioner did err in granting the claimant’s Motion for Extension of Time to File Motion to Correct, (and we in no way concede that it was error) the commissioner’s November 21, 1991 denial of the respondent employer’s Motion to Vacate Claimant’s Extension of Time in Which to File Motion to Correct and to Dismiss Claimant’s Appeal was, at most, harmless error.

We also find the respondent employer’s contention raised by its petition for review filed from the former chairman of the Compensation Review Division’s November 19, 1991 ruling granting the claimant’s Motion for Extension of Time to file Reasons of Appeal is without merit. The respondent employer contends that Administrative Regulation Sec. 31-301-26 does not permit the extensions of time for the filing of Reasons of Appeal. We find the respondent employer’s argument totally unavailing. In Sager v. GAB Business Services, 11 Conn. App. 679 (1987), the appellate court concluded that the reasons of appeal required by Sec. 31-301-2 were tantamount to the preliminary statement of issues provided in Practice Book Sec. 4013(a) regarding the Rules of Appellate Procedure. The Sager court noted that Sec. 31-301 of our Workers’ Compensation Act provides in pertinent part “The procedure in appealing from an award of the commissioner shall be the same as the procedure employed in an appeal from the superior court to the Supreme Court, where applicable, the chairman of the workers’ compensation commission shall adopt regulations, in accordance with the provisions of chapter 54, to establish rules, methods of procedure and forms as the chairman deems expedient for the purposes of this chapter.” Thus, as Practice Book Sec. 4009 provides in pertinent part: “The time for taking any of the steps necessary to prosecute or defend the appeal . . . may be extended in accordance with Sec. 4040,” it is only logical that this appellate tribunal is similarly vested with such power to extend time for reasons of appeal. Furthermore, in light of our ultimate conclusion as to the substantive issues raised on appeal, our dismissal of the respondent employer’s Petition for Review filed November 29, 1991 in no way prejudices the rights of the respondent employer in this action.

Likewise, we deny the respondent employer’s Motion to Dismiss sent by facsimile on August 5, 1992 which sought to dismiss the Second Injury Fund’s appeal due to the late filing of the Second Injury Fund’s brief as our subsequent granting of the respondent employer’s Motion for Extension of Time to File a Brief cured any prejudice arguably caused by the Fund’s delay. See e.g., Richardson v. H.B. Sanson, Inc., 6 Conn. Workers’ Comp. Rev. Op. 107, 590 CRD-1-87 (1989).

Finally, having reached the substantive conclusions that we have, we deny the respondent employer’s Motion to Submit Additional Evidence filed August 6, 1992 which sought to proffer proof that the respondent employer had paid its assessments under Sec. 31-354. The criteria for the submission of additional evidence is a matter controlled by Administrative Regulation Sec. 31-301-97. Before additional evidence will be considered it must be material. In Chapo v. Westport, 3 Conn. Workers’ Comp. Rev. Op. 14, 17. 170 CRD-4-82 (1985) this tribunal noted, “The first requirement that must be met for additional evidence to be presented before the Compensation Review Division [Board] is that it be material. The test of materiality is whether or not it is necessary to the determination of the issue before us. BLACK’s LAW DICTIONARY 1128 Rev. Ed. 1968.) We do not think that the evidence which the respondent employer seeks to add, i.e. proof of payments of Second Injury Fund assessments under Sec. 31-354, is necessary to the determination before us given the conclusion we have reached on the merits.

In summary, we conclude that the claimant in the instant matter is entitled to cost of living adjustment to be calculated from October 1st following the decedent’s injury and such cost of living adjustments are to be paid by the respondent employer and reimbursed by the Second Injury Fund. Additionally, we conclude that based on the amendments to Sec. 31-306 as provided in Public Act 92-31, the waiting period provided in Sec. 31-306(i) as it existed at the time of decedent’s injury is inapplicable and the claimant is entitled to the four thousand dollar burial expense provided in Sec. 31-306(a)(1) as amended by Public Act 92-31.

We therefore, affirm in part and reverse in part.

Commissioners Angelo L. dos Santos and Donald H. Doyle, Jr. concur.

1 Sec. 31-306(a) C.G.S. provided in pertinent part:

If death occurs within six years from the date of the injury or the first manifestation of a symptom of the occupational disease, there shall be paid the sum of one thousand dollars for burial expenses. If there is no one wholly or partially dependent upon the deceased employee, the burial expenses of one thousand dollars shall be paid to the person who assumes the responsibility of paying the funeral expenses. BACK TO TEXT

2 Sec. 31-306(i) provided in pertinent part:

If death occurs later than two years from the date of injury or the first manifestation of a symptom of the occupational disease, the period for which compensation shall be due hereunder shall be reduced by the period for which compensation payments have been made to the deceased employee on account of such injury or occupational disease. BACK TO TEXT

3 Two hundred twenty (220) weeks represents the total number of weeks of compensation paid to the decedent, 195 weeks of permanent partial and 25 weeks of scarring and disfigurement benefits. BACK TO TEXT

4 Sec. 7-433c provides in pertinent part:

In recognition of the peculiar problems of uniformed members of paid fire departments and regular members of paid police departments, and in recognition of the unusual risks attendant upon these occupations...municipal employers shall provide compensation as follows: Notwithstanding any provision of Chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under Chapter 568 if such death or disability was caused by a personal injury which arose out of or in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement of survivor benefits which would be paid under personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment .... BACK TO TEXT

5 31-301-4 provides:

If the appellant desires to have the finding of the commissioner corrected he must, within two weeks after such finding has been filed, unless the time is extended for cause by the commissioner, file with the commissioner his motion for the corrrection of the finding and with it such portions of the evidence as he deems relevant and material to the corrections asked for, certified by the stenographer who took it, but if the appellant claims that substantially all the evidence is relevant and material to the correction sought, he may file all of it so certified, indicating in his motion so far as possible the portion applicable to each correction sought. The commissioner shall forthwith, upon the filing of the motion and of the transcript of the evidence, give notice to the adverse party or parties. BACK TO TEXT

6 Administrative Regulation Sec. 31-301-2 provides:

Within ten days after the filing of the appeal petition, the appellant shall file with the compensation review division his reasons of appeal. Where the reasons of appeal present an issue of fact for determination by the division, issue must be joined by a pleading filed in accordance with the rules applicable in ordinary civil actions; but where the issue is to be determined upon the basis of the finding of the commissioner and the evidence before him, no pleadings by the appellee are necessary. BACK TO TEXT

7 Administrative Regulation Sec. 31-301-9 provides:

If any party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review division, indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner. The compensation review division may act on such motion with or without a hearing, and if justice so requires may order a certified copy of the evidence for the use of the employer, the employee or both, and such certified copy shall be made a part of the record on such appeal. BACK TO TEXT

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