State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Badolato v. City of New Britain

CASE NO. 3704 CRB-06-97-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 24, 1998

JOHN BADOLATO

CLAIMANT-APPELLEE

v.

CITY OF NEW BRITAIN

EMPLOYER

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The employer was represented by Seth Feigenbaum, Esq., City of New Britain, Corporation Counsel’s Office, 27 West Main Street, New Britain, CT 06051.

The Second Injury Fund was represented by Nancy Sussman, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06106.

This Petition for Review from the October 10, 1997 Finding and Dismissal of the Commissioner acting for the Sixth District was heard May 8, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent-appellant, a municipality has petitioned for review from the Commissioner acting for the Sixth District’s October 10, 1997 Finding and Award of Dismissal. In that Finding and Award, the trial commissioner retrospectively applied P.A. 95-277, § 3. The trial commissioner concluded that as of July 1, 1995, P.A. 95-277, § 3, repealed § 31-349(e) and thus, relieved the Second Injury Fund’s obligation to reimburse the municipality for life insurance and health insurance payments made on behalf of the claimant pursuant to § 31-284b. We now affirm the trial commissioner’s conclusion.

The pertinent facts in this matter are as follows. On January 3, 1991 the claimant sustained a compensable injury to his back. On January 7, 1993 the municipality put the Second Injury Fund on notice, as required by § 31-349(e)1, that it would be seeking reimbursement from the Fund for life insurance and medical benefits paid on behalf of the claimant as permitted under § 31-284b(d). On August 27, 1993 the Fund notified the municipality that effective March 10, 1993 the appellant was eligible for reimbursement for payments made to the claimant under § 31-284b.

At this point some discussion of the legal and statutory history surrounding the statutes at issue is relevant. Sec. 31-284b imposed upon employers an obligation to maintain various employee benefits during a claimant’s eligibility for Workers’ Compensation benefits.2 Sec. 31-284b(d)3 provided statutory authority which permitted employers who maintained benefits pursuant to § 31-284b to seek reimbursement from the Second Injury Fund for claimants who were totally disabled for a period of 104 weeks or more. Sec. 31-349(e) provided the Second Injury Fund with the authority to reimburse employers after an employer complied with the requisite notice period contained in § 31-349(e). However, the legislature repealed § 31-349 in P.A. 95-277 and recodified various parts with significant changes to those parts. Public Act 95-277, § 3 specifically repealed § 31-349(e) and its provision pertaining to the reimbursement of employers for the cost of accident and health or life insurance paid to those totally disabled for a period of more than 104 weeks.

The trial commissioner heard this matter and held that after July 1, 1995, the effective date of P.A. 95-277, § 3, the Fund was no longer obligated to reimburse the employer for life insurance and medical benefits payments made pursuant to § 31-284b as called for in § 31-284b(d). The commissioner’s reasoning appears grounded in the legislature’s repeal of § 31-349(e). The commissioner concluded that action, i.e., the repeal of § 31-349(e), repealed § 31-284b(d) by implication.

The appellant, City of New Britain, appealed the trial commissioner’s October 10, 1997 Finding and Award. The ultimate issue presented for review is whether the trial commissioner erred in failing to order the Second Injury Fund to continue reimbursing the municipality for payments made on behalf of the claimant under § 31-284b after July 1, 1995.

In support of its argument on appeal, the appellant contends that the commissioner’s conclusion was an impermissible retrospective application of P.A. 95-277, § 3. The appellant argues that the long standing “date of injury rule” applies.4

In the instant matter, as the claimant was injured in January, 1991 the appellant contends that the applicable law is the law in existence at that time. Thus, as § 31-349(e) was codified as § 31-349(b) at that time, the Fund’s obligation to reimburse the municipality continues. The appellant relies, in part, on the statutory presumption against the retrospective application of statutes set out in § 55-35. The, appellant argues that its right to reimbursement from the Second Injury Fund under § 31-284b(d) was substantive in nature and that the trial commissioner’s repeal by implication of that right was improper.

Additionally, the appellant contends that the application of a statute extinguishing its right to reimbursement must be clear. In the instant matter, there are two separate statutes providing for the employer’s reimbursement by the Fund. The legislature only repealed one of the two statutes relating to this right. The appellant argues that the legislature’s intent is unclear and that repeal of statutes by implication is disfavored in the absence of the legislature’s clear statement as to its intention. Bouley v. Norwich, 222 Conn. 744, 758-59 (1992). Thus, the appellant contends that the trier erred in his inference that the repeal of § 31-349(e) repealed § 31-284b(d) by implication. We ultimately cannot agree with the appellant’s argument, however, we do find that its contentions are well reasoned.

The legislative history of § 31-284b and the pertinent provisions of § 31-349 indicate a number of legislative enactments. Our research of that history demonstrates that the intent of the legislature, with its provisions transferring liability for payments of accident, health and life insurance for those totally disabled after 104 weeks, codified at § 31-284b(d), was to ease the burden on small employers. Specifically, the legislature intended to ease that burden in instances where an employee suffered a significant and long term disability. In comments before the Senate body of the General Assembly in its consideration P.A. 81-464, Sen. Johnson stated:

I rise in support of the Amendment and commend Senator Skelley for what has amounted to actually several years of dedicated work to find a solution to a very difficult problem. The original Bill and part of this Amendment will relieve your small businesses of what is an interminable burden. The burden for certain payments for those employees who are totally disabled. In New Britain at this point, I have an employer facing retirement whose liability for these payments would continue into retirement and possibly even be a burden on his estate.
So it’s a problem that many of our small businesses will have faced and will benefit from this Bill and I want to thank Senator Skelley for his patience in working out this solution over a period of three years and I appreciate it very much and commend him for his staying power, thoughtfulness and creativeness. Thank you.
24 S. Proc., Pt. 9, 1981 Sess., p. 2829, Remarks of Senator Johnson.

Clearly, Sen. Johnson’s comments reflect that the intent of the bill, as regards the Second Injury Fund’s reimbursement of employers, was to alleviate a financial burden on small employers. We do not think that the situation of the employer in the instant matter is analogous to the employers’ situation contemplated by the legislature at the time of this enactment. We do not believe it was the legislature’s intention to create a vested right to an employers right to reimbursement as provided in § 31-284b(d) and § 31-349(e). As our Supreme Court noted:

“When the legislature intends to surrender its power of amendment and revision by creating a contract and thereby binding future legislatures, it must declare that in clear and unambiguous terms. A relinquishment of this authority should not occur by legislative inadvertence or judicial implication.” Emphasis added. Pineman v. Oechslin, 195 Conn. 405, 415 (1985).

Gil v. Courthouse One, 239 Conn. 676, 689-90 (1997).

Additionally, our courts have held payments from the Second Injury Fund are controlled by statute may only be paid by express statutory authority. Going v. Cromwell Fire District, 159 Conn. 53, 61 (1970); McNulty v. Stamford, 37 Conn. App. 835 (1995). As the legislature repealed the statutory authority and procedural mechanism for reimbursement from the Fund contained in § 31-349(e) it thus, impliedly, repealed the respondent’s right to reimbursement under § 31-284b(d) after July 1, 1995.

Finally, our Supreme Court has now twice considered, whether a provision of P.A. 95-277 may be applied retroactively. The Supreme Court in Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282 (1997), and Coley v. Camden Associates, Inc., 243 Conn. 311 (1997) concluded that two other provisions of P.A. 95-277 may be applied to cases where the injury preceded the date of the act. While neither of these cases necessarily compels the conclusion we reach today, we believe the reasoning of the Court is strongly persuasive and supportive of our ultimate conclusion.

Specifically in Coley, supra, the Supreme Court concluded that the date of injury rule and its presumption against retroactivity was inapplicable. The Court noted that P.A. 95-277, § 9(f) amending § 31-301(f) did not affect a substantive right as any payments made must be repaid with interest in the event a claimant was found not entitled to the benefits awarded at the trial level. The Court opined that the statute related to a matter of procedure, and the legislature’s intention was to reduce the financial burdens imposed on the Second Injury Fund. The Court held that the legislature intended the amendment be applied retrospectively. Coley, supra, at 317-19. See also, Cece v. Felix Industries, Inc., 3505 CRB-07-96-12 (April 24, 1998); appeal docketed No. A.C. 18409 (May 13, 1998); Audi v. Blakeslee Arpaia Chapman, 3418 CRB-3-96-9 (Aug. 4, 1997).

Likewise we find ourselves considering, again, whether a provision of P.A. 95-277 is to be applied retroactively. We think that the prior holdings of the Supreme Court and the legal reasoning herein support our conclusion that P.A. 95-277, § 3 is to be applied retroactively. Thus, the reimbursement of the municipality for payments made pursuant to § 31-284b ceased upon the effective date of P.A. 95-277, § 3, July 1, 1995.

We therefore affirm the Commissioner acting for the Sixth District’s October 10, 1997 Finding and Award of Dismissal.

Commissioner Stephen B. Delaney concurs.

COMMISSIONER MICHAEL S. MILES, DISSENTING. With all due respect, I must dissent. I am troubled by the majority’s willingness to support the continued erosion of the “date of injury” rule. Continually, I read of the courts’ and this tribunals concerns for administrative predictability and certainty. Yet I am constantly amazed, by what I perceive as, the continued assault on a principle of law which has guided the courts, and this forum in the resolution of what law is to be applied. Clearly, the date of injury rule has served as a guiding beacon throughout the existence of our Workers’ Compensation Act. Over the years the legislature in its infinite wisdom, and rightful exercise of its powers, has amended our Workers’ Compensation act so as to keep pace with changing legal and social employment conditions. However, with each legislative change those who are required to implement such legislative changes must first resolve to whom the changes apply. Without the consistency and durability of the date of injury rule, those covered by the Act are left with no clear means of reasonably foreseeing to whom these amendments apply.

Additionally, I am not convinced that the majority’s acceptance of the Fund’s legal argument that the legislature’s repeal of § 31-349(e) in P.A. 95-277 § 3 served to repeal § 31-284b(d) by implication, is well founded. My understanding is that the legislature is presumed to be aware of all other statutes and their relationship to the legislature’s acts. Thus, I believe, that a repeal by implication is permitted when the various parts of a legislative scheme cannot otherwise be harmonized. I do not believe that the instant matter presents a situation where two statutes cannot be harmonized and the compliance with one is inconsistent with the legislature’s intent.

I am, of course, well aware of the dire financial straits of the Second Injury Fund which served as the impetus for the passage of P.A. 95-277. However, in light of the United States Supreme Court’s ruling in District of Columbia v. Greater Washington Board of Trade, 506 U.S. 125, 113 S. Ct. 580, 121 L. Ed. 2d 513 (1992) and our own Supreme Court’s ruling in Luis v. Frito-Lay, Inc., Supreme Court, Docket No. SC 14536 (order, April 27, 1993) I am unconvinced that the removal of the Fund’s obligation for reimbursement in § 31-284b(d) would seriously challenge the legislature’s prescription for stemming the Fund’s fiscal hemorrhage.

In Luis, our Supreme Court relied on Greater Washington Board of Trade, supra, and held that an employer’s obligation to continue certain employee welfare benefits under § 31-284b was preempted by ERISA. Thus, after Luis, only those employment situations subject to federal ERISA controls are obligated to comply with § 31-284b. Generally, these non ERISA employment situations relate to government and churches. Obviously, if one subtracts all ERISA controlled employments from coverage under § 31-284b, the number of persons to whom § 31-284b applies is drastically reduced. I fail to see how the Fund’s continued reimbursement pursuant to § 31-284b(d) would jeopardize the future financial solvency of the Second Injury Fund.

Finally, the majority noted that § 31-349(e) provided the procedural mechanism for reimbursement from the Fund. The majority then infers that as the legislature repealed the procedural mechanism for reimbursement from the Fund in § 31-349(e), the legislature must have intended to repeal the municipal employer’s right to reimbursement. I can make no such syllogistic leap. I think that all that can be inferred from the repeal of § 31-349(e) and its procedural aspects is that the legislature was not concerned with how to accomplish reimbursement pursuant to § 31-284b(d). I do not think that the legislature’s repeal of § 31-349(e) compels the conclusion that the legislature intended to extinguish the right to reimbursement itself, in cases where the date of injury occurred prior to the effective date of P.A. 95-277, § 3.

For these reasons, I must respectfully dissent.

1 At the time of claimant’s injury § 31-349(e) was codified as § 31-349(b) BACK TO TEXT

2 Sec. 31-284b(a) provides in pertinent part:

In order to maintain, as nearly as possible, the income of employees who suffer employment-related injuries, any employer who provides 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 plan, shall provide to the employee equivalent insurance coverage or welfare plan payments or contributions while the employee is eligible to receive or is receiving compensation 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. As used in this section, “income” means all forms of remuneration to an individual from his employment, including wages, accident and health insurance coverage, life insurance coverage and employee welfare plan contributions and “employee welfare plan” means any plan established or maintained for employees or their families or dependents, or for both, for medical, surgical or hospital care benefits.

For a more detailed legislative history of § 31-284b see Civardi v. Norwich, 231 Conn. 287, 296 (1994). Civardi also details the judicial repeal, in part, of that act insofar as the statute applies to employment benefits controlled by ERISA. Id. at 298 n. 14. BACK TO TEXT

3 Sec. 31-284b(d) provides:

In any case where compensation payments to an individual for total incapacity under the provisions of § 31-307 continue for more than one hundred four weeks, the cost of accident and health insurance or life insurance coverage after the one-hundred-fourth week shall be paid out of the Second Injury Fund in accordance with the provisions of § 31-349. BACK TO TEXT

4 The date of injury rule provides that the applicable law, is the law in effect at the time of injury. See, Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 305 (1997); Coley v. Camden Associates, Inc., 243 Conn. 311, 315 n. 5 (1997). BACK TO TEXT

5 Sec. 55-3 provides:

No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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