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Fiorillo v. City of Bridgeport

CASE NO. 4337 CRB-4-01-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 19, 2001

DEBORAH FIORILLO

CLAIMANT-APPELLEE

v.

CITY OF BRIDGEPORT

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Stephen B. Alderman, Esq., 201 Center Street, West Haven, CT 06516.

The respondent was represented by Jean D. Molloy, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

The Second Injury Fund was represented by Richard R. Hine, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the December 28, 2000 Finding of the Commissioner acting for the Fourth District was heard July 20, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent Second Injury Fund has petitioned for review from the December 28, 2000 Finding Re: C.G.S. § 31-307a(c) of the Commissioner acting for the Fourth District. The Fund contends on appeal that the trier incorrectly ordered it to reimburse the respondent City of Bridgeport for all cost-of-living adjustments (COLAs) that it has paid to the claimant during her period of temporary total disability. We find no error, and affirm the trial commissioner’s decision.

The parties have stipulated to the following set of facts. The claimant sustained a compensable injury on January 13, 1995, and has been receiving total disability benefits from May 8, 1995 to the present. She was paid $11,797.95 in retroactive COLAs on June 2, 2000, which sum covered the time period from May 8, 1995 to May 7, 2000. The city has continued to pay temporary total disability benefits from May 8, 2000 to the present sans COLAs on a “without prejudice” basis. The city seeks reimbursement from the Fund for both the retroactively-paid COLAs and for the portion of the weekly temporary total disability payment that represents future COLAs payable. Based upon the language of § 31-307a(c), the trier granted the city’s request. The Fund has appealed that ruling.

Section 31-307a(c) reads as follows:

(c) On and after October 1, 1997, the weekly compensation rate of each employee entitled to receive compensation under section 31-307 as a result of an injury sustained on or after July 1, 1993, which totally incapacitates the employee permanently, shall be adjusted as provided in this subsection as of October 1, 1997, or the October first following the injury date, whichever is later, and annually on each subsequent October first, to provide the injured employee with a cost-of-living adjustment in his weekly compensation rate as determined as of the date of 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 as of the date of injury, the weekly compensation rate which the injured employee was entitled to receive as of the date of 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 adjustments 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 October 1, 1997, or the October first next succeeding the date of injury, whichever is later. With respect to any employee receiving benefits on October 1, 1997, with respect to any such injury occurring on or after July 1, 1993, and before October 1, 1997, or with respect to any employee who was adjudicated to be totally incapacitated permanently subsequent to the date of his injury or is totally incapacitated permanently due to the fact that the employee has been totally incapacitated by such an injury for a period of five years or more, such benefit shall be recalculated to October 1, 1997, to the date of such adjudication or to the end of such five-year period, as the case may be, as if such benefits had been subject to recalculation annually under the provisions of this subsection. The difference between the amount of any benefits which would have been paid to such employee if such benefits had been subject to such recalculation and the actual amount of benefits paid during the period between such injury and such recalculation shall be paid to the dependent not later than December 1, 1997, or thirty days after such adjudication or the end of such period, as the case may be, in a lump-sum payment. The employer or his insurer shall be reimbursed by the Second Injury Fund, as provided in section 31-354, for adjustments, including lump-sum payments, payable under this subsection for compensable injuries occurring on or after July 1, 1993, and before October 1, 1997, upon presentation of any vouchers and information that the Treasurer shall require.

This statute was passed in 1997 via Public Act No. 97-205, and was designed to restore cost-of-living adjustments to totally disabled claimants who had been injured following Public Act 93-228’s statutory elimination of COLAs, which affected all injuries on or after July 1, 1993. Our focus here is on the reimbursement provision at the end of § 31-307a(c), which is the subject of the instant dispute.

The Fund argues that this language should be interpreted with an eye toward the legislature’s intent in passing Public Act No. 95-277 two years earlier. At that time, the Fund faced substantial unfunded claims for payment, which led the legislature to limit the future liability and exposure of the Second Injury Fund by prohibiting transfer of second injury claims based on injuries occurring after July 1, 1995. See Cece v. Felix Industries, Inc., 248 Conn. 457, 463-64 (1999); Masko v. Wallingford, 4076 CRB-8-99-7 (July 11, 2000). Because the payment of COLAs pursuant to § 31-307a(c) would also draw moneys from the Fund if reimbursement were allowed, the Fund contends that the statute should be read in a manner that is limited and specific, rather than capable of creating open-ended, indeterminate financial liability for the future. Thus, it asserts that it should only be required to reimburse employers for the COLAs due on benefits payable between July 1, 1993 and September 30, 1997.

If one’s exclusive focus were on the importance of curbing future Fund liability, it would be understandable for one to have a tendency to read “adjustments, including lump sum payments, payable under this subsection for compensable injuries occurring on or after July 1, 1993 and before October 1, 1997” as referring to adjustments paid between the listed dates rather than to injuries that have occurred between those dates. However, such an interpretation of the statute would be inappropriate. First, the phrase “for compensable injuries” and the word “occurring” would have to be ignored, contrary to the doctrine of statutory construction that presumes there is a purpose “behind every sentence, clause or phrase in a legislative enactment.” Biasetti v. Stamford, 250 Conn. 65, 81 (1999). Not only would those words be superfluous, as there are no adjustments payable under § 31-307a(c) for either non-compensable injuries or injuries occurring before July 1, 1993 or after October 1, 1997, but their only conceivable function would be to mislead the reader. The legislature could easily have referred to “adjustments payable under this subsection on or after July 1, 1993 and before October 1, 1997,” but it did not. The inclusion of the words “for compensable injuries occurring” thus supports the reading that the trial commissioner gave to the statute.

Second, in other instances where our legislature has made COLAs retroactively payable for workers’ compensation benefits arising from past injuries, it has always provided that such COLAs will be paid initially by the employer or insurer, who is then eligible for reimbursement by the Fund upon presentation of any vouchers and information that the Fund’s Treasurer should require. See, e.g., § 31-307a(b) (COLAs made payable for injuries occurring prior to October 1, 1969); § 31-306(a)(2)(B) (COLAs made payable for dependents receiving compensation for deaths occurring prior to October 1, 1977). In contrast, reimbursement provisions are not present in statutes that impose COLA obligations prospectively for future injury dates. The reason for this distinction is clear: our law prohibits the imposition of new substantive obligations on any person or corporation on a retrospective basis. Coley v. Camden Associates, Inc., 243 Conn. 311, 316 (1997); § 55-3 C.G.S. Translated into the workers’ compensation forum, where the “date of injury” rule applies, our law would allow the legislature to require employers to begin paying COLAs for future injuries, but would not allow the legislature to require those employers to pay COLAs to claimants whose injuries had already occurred unless making such payments did not amount to a substantive obligation. The legislature’s solution in such cases has been to impose an administrative duty on employers to begin paying COLAs retroactively, with a right to be reimbursed for any such sums by the Second Injury Fund. No substantive obligation is being imposed just as long as the employer continues to be entitled to reimbursement as long as benefits and their accompanying COLAs are being paid.

The interpretation of § 31-307a(c) proposed here by the Fund would violate that principle, as employers would have liability for COLAs payable after September 30, 1997 imposed upon them even though the law in effect at the time of injury did not provide for the payment of such COLAs. Such a result cannot be favored by this board, particularly where the plainest reading of the statute provides for perpetual reimbursement rights. Therefore, we hold that the trier correctly ruled that the Fund was required to reimburse the respondent employer for all COLAs paid to the claimant through May 7, 2000.

The trial commissioner’s decision is hereby affirmed.

Commissioners Ernie R. Walker and Stephen B. Delaney concur.

Workers’ Compensation Commission

Page last revised: December 21, 2004

Page URL: http://wcc.state.ct.us/crb/2001/4337crb.htm

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