CASE NO. 4345 CRB-7-01-1
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
DECEMBER 7, 2001
LUFTHANSA GERMAN AIRLINES
ZURICH AMERICAN INSURANCE
SECOND INJURY FUND
The claimant did not appear in the proceedings on appeal. Notice sent to Robert Sousa, Esq., Sousa & Stone, L.L.C., 375 Bridgeport Avenue, Shelton, CT 06484.
Both parties interested in this appeal agreed to waive oral argument on this matter. The respondents were represented on the papers by James D. Moran, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430-0550.
The Second Injury Fund was represented on the papers by Michelle D. Truglia, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the January 11, 2001 Finding and Award of the Commissioner acting for the Seventh District was considered on November 16, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. The Second Injury Fund has petitioned for review from the January 11, 2001 Finding and Award of the Commissioner acting for the Seventh District. The Fund contends on appeal that the trier incorrectly failed to limit the Fund’s liability for cost-of-living adjustments (COLAs) on the claimant’s injury to those COLAs payable before October 1, 1997. In accordance with our recent decision in Fiorillo v. Bridgeport, 4337 CRB-4-01-1 (Nov. 19, 2001), we affirm the ruling of the trial commissioner.
The parties have stipulated that the claimant suffered a compensable back injury on July 6, 1994, and that he has been totally disabled since December 7, 1994. This entitles him to compensation under § 31-307 C.G.S., as well as COLAs under § 31-307a. Section 31-307a(c) provides in relevant part,
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. . . . The cost-of-living adjustments provided under this subdivision shall be paid by the employer without any order or award from the commissioner. . . . 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 as part of Public Act No. 97-205, and was meant to restore COLAs to totally disabled claimants who had been injured following the enactment of Public Act 93-228, which eliminated COLAs for all injuries occurring on or after July 1, 1993. The Fund contends that any COLAs paid after October 1, 1997 (or after the end of the five-year period contemplated by the statute) remain the responsibility of the employer under the last sentence of § 31-307a(c), while the employer maintains that the Fund must accept liability for all COLAs payable on account of the instant claim through the present time. The trier agreed with the latter argument, explaining that the last sentence of the statute only addresses the dates of injury involved in reimbursement. He ordered the Fund to reimburse the respondents for all COLAs paid to the claimant, as well as future COLAs payable on account of continuing temporary total disability. The Fund has appealed that ruling.
The issue in dispute here was recently addressed by this board in Fiorillo, supra. There, we held that the plain language of the statute does not support the interpretation proposed by the Fund. Also, the law prohibiting the retroactive imposition of new substantive obligations on any person or corporation would preclude the legislature from making employers ultimately liable for COLAs payable on account of injuries between July 1, 1993 and October 1, 1997. The legislature’s intent to curb overall Fund liability via Public Acts No. 93-228 and 95-277 was not enough to outweigh the specific language of the statute and the import of the “date of injury rule.” Thus, we held in favor of the respondent employer. That decision in Fiorillo controls our ruling here. We hold that the trier properly ruled that the respondents are eligible for reimbursement from the Fund for all COLAs payable on the instant total disability claim.
Accordingly, the trial commissioner’s decision is hereby affirmed.
Commissioners George A. Waldron and Ernie R. Walker concur.