CASE NO. 4241 CRB-4-00-5
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 21, 2001
ESTATE OF BARBARA COLLINS
CLAIMED DEPENDENTS of BARBARA COLLINS
CITY OF BRIDGEPORT
SECOND INJURY FUND
The estate of Barbara Collins was represented by Edward G. Fitzpatrick, Esq., Fitzpatrick, Mariano & Santos, P.C., 203 Church Street, Naugatuck, CT 06770.
The claimed dependents of Barbara Collins were represented by Ronald D. Williams, Jr., Esq., Williams, Cooney & Sheehy, One Lafayette Circle, Bridgeport, CT 06604.
The Second Injury Fund, the party to whom liability for this claim has been transferred, was not represented at oral argument. Notice sent to Richard Hine, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the May 10, 2000 Finding of the Commissioner acting for the Fourth District was heard January 12, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Jesse M. Frankl.
JOHN A. MASTROPIETRO, CHAIRMAN. A group of individuals claiming to be the descendents and statutory dependents of the decedent, Barbara Jane Collins, have petitioned for review from the May 10, 2000 Finding of the Commissioner acting for the Fourth District. They contend on appeal that the trier erred by finding that the payment of any benefits in this case must be paid to the decedent’s estate rather than to them. We affirm the trial commissioner’s decision.
The decedent suffered a heart attack on March 1, 1984 during the course of her employment with the city of Bridgeport. A voluntary agreement was approved on October 23, 1997 specifying a 90% permanent partial disability of the heart with a January 31, 1995 maximum medical improvement date. This entitled her to 390 weeks of compensation benefits. However, the decedent passed away on December 31, 1998, and her husband Raymond J. Collins died less than one month later. A subsequent settlement provided that the Second Injury Fund still owed the decedent $75,000 in workers’ compensation benefits. The Last Will and Testament of Barbara Collins was dated April 1, 1980, at which time she was already married to Raymond. See Claimant’s Exhibit A. Each of their wills provided that in the event neither spouse survived the other by 60 days, the assets of their respective estates would be distributed in equal shares among her four children from a previous marriage, and his six children from a previous marriage. No children issued from the union between Barbara and Raymond Collins.
The petitioners in this case are Michael Tyszka, Jr., Robert Tyszka and Michelle Buckley, three of Barbara Collins’ four children. At the time of the decedent’s heart attack, § 31-306(a) defined the presumptive dependents of a deceased employee as cohabitating or financially dependent spouses, children under the age of 18, physically or mentally incapacitated children, and unmarried, dependent children under the age of 22 who are full-time students. If there are no presumptive dependents, “questions of dependency shall be determined in accordance with the fact, as the fact may be at the time of the injury.” The 1984 version of § 31-306 divided compensation only among presumptive dependents and dependents in fact. It did not address situations in which children of an employee survived, but were no longer dependent upon their parent at the time of injury. Section 31-308, under which the instant decedent was entitled to specific indemnity benefits, contained no discussion at all of dependents or the disposition of permanent partial disability benefits upon the death of the employee-recipient.
In 1989, the legislature passed P.A. 89-346, which provides as follows: “Any award or agreement for compensation made pursuant to this section shall be paid to the employee, or in the event of the employee’s death, whether or not a formal award has been made prior to the death, to his surviving spouse or, if he has no surviving spouse, to his dependents in equal shares or, if he has no surviving spouse or dependents, to his children, in equal shares, regardless of their age.” (Emphasis added). In enacting this amendment, our legislature acknowledged an earlier Supreme Court holding that the spouse and dependents, but not the estate, of a deceased worker were entitled to the balance of specific indemnity benefits that were awarded before his death but remained unpaid. Bassett v. Stratford Lumber Co., 105 Conn. 297 (1926), overruling Forkas v. International Silver Co., 100 Conn. 417 (1924). The italicized words represent an adjustment to that rule, for they entitle the children of a deceased worker to receive his or her outstanding permanency benefits, regardless of their age, if no dependents exist. It is relevant here that our Supreme Court effectively overruled Bassett a few years later by holding that where there are no dependents, a permanent partial disability award is payable to the decedent’s estate. McCurdy v. State, 227 Conn. 261, 269 (1993).
In considering the claim of the petitioners, the trial commissioner found that no evidence had been presented to establish them as conclusively presumed dependents, presumptive dependents, or dependents in fact. Findings, ¶ 8. He declined to apply P.A. 89-346, and ruled that the absence of dependents required that the payments of the $75,000 settlement had to be paid to the decedent’s estate as per McCurdy, supra. The petitioners have appealed that ruling to this board, and have also filed a Motion to Submit Additional Evidence seeking to establish that they are in fact the surviving natural children of Barbara Collins. As the parties have both agreed that this assertion is true, we will consider that fact settled for the purpose of this appeal, and need not consider whether the appellants’ motion satisfies the requirements of Admin. Reg. § 31-301-9.
The appellants seek to persuade this board that the trier should have applied § 31-308(d) here, as the decedent’s death occurred over nine years after the passage of P.A. 89-346. Compare Roswell v. State, 29 Conn. App. 432 (as per “date of injury” rule, P.A. 89-346 inapplicable where decedent’s injury and death both occurred before effective date of act), cert. denied, 224 Conn. 922 (1992). They maintain that the “date of injury” rule should not apply here because P.A. 89-346 clarified an existing ambiguity in the law rather than making a substantive change in the statute. See Coley v. Camden Associates, Inc., 243 Conn. 311, 316-17 (1997) (under “date of injury” rule, procedural statutes apply retroactively, while statutes affecting substantive rights apply prospectively, absent indications of legislative intent to contrary). We find no merit in this argument.
Despite the petitioners’ attempt to characterize the remarks of our Appellate Court in Roswell, supra, as dicta, that court explicitly stated, “Nothing in the language or history of Public Acts 1989, No. 89-346 leads us to believe that the legislature intended that its applicability would not be controlled by the traditional date of injury rule. The law in effect on July 16, 1984, the date of Roswell’s injury, is therefore the law that applies to all claims arising out of his disability and death.” Roswell, supra, 435. We disagree that the court’s attempt to determine the applicable law amounted to obiter dictum in that situation. Moreover, the history of P.A. 89-346 provided in the claimant’s brief hardly suggests a mere clarification of existing law. Due to our Supreme Court’s decision in Morgan v. East Haven, 208 Conn. 576 (1988), our legislature was aware that unmatured specific indemnity benefits were not deemed payable to a decedent’s estate, including surviving, non-dependent children, by our Supreme Court. The legislature sought to change that law by making such benefits payable to surviving children whether or not they qualified as dependents, though it stopped short of making such benefits payable to the estate if no children survived. 32 H.R. Proc., Pt. 17, 1989 Sess., pp. 5876-78 (remarks of Rep. Adamo). As the Appellate Court held in Roswell, this is plainly more than a procedural change in the law, as it determines the individuals entitled to benefits under Chapter 568. Thus, P.A. 89-346 is subject to the “date of injury” rule, and cannot be applied to the facts of this case.
The trial commissioner’s decision is hereby affirmed.
Commissioners George A. Waldron and Jesse M. Frankl concur.