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Rutledge v. State of Connecticut Department of Public Safety/State Police

CASE NO. 3831 CRB-02-98-05

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 21, 1999

MICHAEL RUTLEDGE, ESTATE OF JUDITH RUTLEDGE, DEPENDENT WIDOW

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT DEPARTMENT OF PUBLIC SAFETY/STATE POLICE

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to John Greiner, Esq., Murphy & Beane, 2 Union Plaza, P.O. Box 590, New London, CT 06320.

Though it also rested on its brief, the respondent was represented at oral argument by Lisa Guttenberg Weiss, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the May 26, 1998 Findings of Facts and Award of the Commissioner acting for the Second District was considered on November 6, 1998 by a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the May 26, 1998 Findings of Facts and Award of the Commissioner acting for the Second District. She argues on appeal that the trier miscalculated her cost-of-living adjustments (COLAs) under § 31-306 C.G.S.1 We affirm the trial commissioner’s decision.

The decedent , Michael Rutledge, died on December 2, 1995 as the result of a compensable myocardial infarction that occurred on July 14, 1983. His widow is eligible to receive dependent death benefits under § 31-306, including COLAs. A voluntary agreement established the decedent’s average weekly wage as $326.00, the maximum weekly wage at the time of his heart attack. Pursuant to a September 5, 1997 directive from the Chairman of the Workers’ Compensation Commission, the respondent computed COLAs to augment the claimant’s $326.00 base compensation rate. The cited directive prescribes the method of COLA calculation espoused by our Supreme Court in Gil v. Courthouse One, 239 Conn. 676 (1997). The trier likewise applied that formula in his Findings of Facts and Award, and the claimant appealed that decision to this board.

The claimant argues in her brief that the Supreme Court did not intend to treat recipients of temporary total disability benefits who receive COLAs under § 31-307 in the same manner as dependent death benefit recipients under § 31-306, despite the presence of nearly identical language in each statute. Gil, supra, concerned a woman who was eligible for temporary total disability compensation, and whose $93.35 base compensation rate was far below the maximum weekly wage. Id., 679. Annual COLA adjustments began to inflate her weekly checks, and by December 1995, Ms. Gil was receiving just over $259 per week. The effect of this board’s decision in Wolfe v. JAB Enterprises, Inc., 14 Conn. Workers’ Comp. Rev. Op. 127, 1875 CRB-3-93-10 (June 5, 1995), reduced Gil’s benefit checks by $101 per week, and she sought a hearing on the matter. She prevailed at the hearing, and again on appeal to the CRB. The case worked its way up to the Supreme Court, where, according to the claimant, the Court “legislated a formula to blend the prior dollar adjustments with the percentage adjustments required by Public Act 91-339,” in order to mitigate the drastic benefit reduction caused by Wolfe’s literal application of the COLA formula in § 31-307a. Gil, 692.

The claimant contends, however, that Gil does not intend or require the use of that formula in the instant case. She offers two rationales for this in her brief: the absence of a “saving clause” in P.A. 92-31 (which installed the “percentage COLA” method in § 31-306) akin to § 50 of P.A. 91-3392, and the absence of “any humanitarian need in this case to make recourse to any other formula for the computation of cost-of-living adjustments...[particularly] as the court found that the legislature specifically intended to reduce no one’s compensation.” Brief, p. 10. Initially, we note that the legislative intent to maintain claimants’ levels of compensation is discussed in Gil with regard to P.A. 91-339 instead of P.A. 92-31. Id., 684-85. P.A. 91-339, of course, contains the “saving clause” that we just noted. We fail to see how the absence of a “saving clause” in P.A. 92-31 strengthens the claimant’s position. If anything, it would seem more likely that the legislature intended a Wolfe-like result with regard to the use of the percentage COLA method in § 31-306 by omitting a “saving clause.” See Gil, supra, 683-84.

The key consideration in our analysis, though, is the Gil Court’s holding that the “date of injury” rule is not applicable to P.A. 91-339. This is due to the specific language of the statute addressing adjustments to the compensation rates of claimants receiving benefits “as a result of an injury sustained on or after October 1, 1969”—a period of time clearly implicating injuries that occurred before the effective date of the Act. Gil, 685-87. Similarly, P.A. 92-31 § 2(A) affects cases spawning from injuries “occurring on or after October 1, 1977, and before July 1, 1993—also a period of time preceding the effective date of the statute. The Court’s discussion in Gil indicates to this panel that P.A. 92-31 should be read as having a retroactive effect in exactly the same manner that P.A. 91-339 did. Therefore, the claimant is not spared from the operation of P.A. 92-31 simply because her late husband’s heart attack occurred in 1983.

There is absolutely no support for the claimant’s position that the Gil method should only apply to “those cases where the claimant’s compensation rate was so low that the plain language computation of the cost-of-living adjustment works a hardship on the claimant.” Brief, p. 11. The formula in Gil applies whether or not a totally disabled claimant was at the maximum before 1991, or near the minimum. The same logic applies for dependent death benefits under § 31-306, as the statutory COLA formula is substantially identical. We also observe that the legislature enacted amendments in 1998 to both § 31-306 and § 31-307 in P.A. 98-104, which require the accrued “dollar COLA” sums for pre-1991 injuries to be added to the base compensation rate before said rate is multiplied by the annual percentage COLA increase between October 1, 1990 and the current year. Such a change to § 31-306 would not have been necessary had the statute already been written the way the claimant seeks to have it applied.

We are unpersuaded that the method of COLA calculation set forth in the Gil decision does not apply to § 31-306 cases. Accordingly, we continue to adhere to the formula set out in the Chairman’s September 5, 1997 directive insofar as it concerns benefits due prior to July 1, 1998, and affirm the trial commissioner’s decision.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

1 Section 31-306 C.G.S. provides, in relevant part: (A) The weekly compensation rate of each dependent entitled to receive compensation under this section as a result of death arising from a compensable injury occurring on or after October 1, 1977, and before July 1, 1993, shall be adjusted annually as provided in this subdivision as of the following October first, and each subsequent October first, to provide the dependent with a cost-of-living adjustment in his weekly compensation rate as determined as of the date of the injury under section 31-309. If the maximum weekly compensation rate, as determined under the provisions of said section 31-309, to be effective as of any October first following the date of the injury, is greater than the maximum weekly compensation rate prevailing at the date of the injury, the weekly compensation rate which the injured employee was entitled to receive at the date of the injury shall be increased by the percentage of the increase in the maximum weekly compensation rate required by the provisions of said section 31-309 from the date of the injury to such October first. The cost-of-living increases provided under this subdivision shall be paid by the employer without any order or award from the commissioner. The adjustments shall apply to each payment made in the next succeeding twelve-month period commencing with the October first next succeeding the date of the injury.

This statute was recently amended to add the following pair of bracketed phrases: “If the maximum weekly compensation rate, as determined under the provisions of said section 31-309, to be effective as of any October first following the date of the injury, is greater than the maximum weekly compensation rate prevailing at the date of the injury, the weekly compensation rate which the injured employee was entitled to receive at the date of the injury [or October 1, 1990, whichever is later,] shall be increased by the percentage of the increase in the maximum weekly compensation rate required by the provisions of said section 31-309 from the date of the injury [or October 1, 1990, whichever is later,] to such October first.” This revision requires recalculation of all § 31-306 benefits to the July 1, 1998 effective date of the amendment. Prior to that date, COLAs were calculated according to our Supreme Court’s decision in Gil v. Courthouse One, 239 Conn. 676 (1997). See Meyer v. Raybestos Products Co., 3610 CRB-8-97-5 (Oct. 20, 1998). BACK TO TEXT

2 P.A. 91-339, § 50 provides that “[n]othing in this act shall be construed to affect any claims for compensation arising from any injury that occurred before October 1, 1991. Nothing in this act shall be construed to reduce the amount of any compensation awarded for any injury that occurred before October 1, 1991.” This section was not codified in the General Statutes. BACK TO TEXT

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