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Esposito v. Waldbaum’s, Inc.

CASE NO. 4333 CRB-3-00-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 28, 2002

CHARLES ESPOSITO

CLAIMANT-APPELLEE

v.

WALDBAUM’S, INC.

EMPLOYER

and

ROYAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Steven D. Jacobs, Esq., Jacobs, Jacobs & Shannon, 265 Orange Street, New Haven, CT 06510.

The respondents were represented by Kevin Maher, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430.

This Petition for Review from the December 15, 2000 Finding and Award of the Commissioner acting for the Third District was heard November 16, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the December 15, 2000 Finding and Award of the Commissioner acting for the Third District. They argue on appeal that the trier erroneously concluded that the offset for old age Social Security benefits codified in § 31-307(e) C.G.S. did not apply to the claimant because his date of injury preceded the effective date of the statute. We find no error, and affirm the trial commissioner’s decision.

The claimant suffered a compensable back injury on February 27, 1988, which was accepted by a voluntary agreement that was approved on August 28, 1990. At the time of the last formal hearing on August 18, 2000, he was 67 years old. The trial commissioner found that the claimant had a 15% permanent partial impairment of the back following his 1988 injury, but retained a work capacity with lifting restrictions. This permanency increased to 25% in 1989, but the claimant was still able to work. In 1994, the claimant was referred to the Easter Seals Rehabilitation Center, where his work capacity was evaluated by two vocational experts. The claimant’s test results showed him incapable of the activity level necessary to hold a job in a competitive work environment, as pain interfered with his ability to concentrate and finish tasks. Subsequently, two doctors deemed the claimant to be totally disabled.

Following the formal hearings, the trier found that, based on the evidence in the record, the claimant had been totally disabled from January 3, 1994 forward as a result of his 1988 compensable injury. He thus awarded the claimant benefits pursuant to § 31-307. The trier also held, “The Social Security Old Age Retirement offset contained in C.G.S. 31-307(e) does not apply to the Claimant because it was enacted in 1993 after the date of the claimant’s injury.” See Public Acts 1993, No. 93-228 (effective July 1, 1993). The respondents allege error, and have appealed the trier’s ruling to this board.

There are well-established rules of statutory construction that govern the applicability of new legislation to preexisting transactions. Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 302 (1997); Rice v. Vermilyn Brown, Inc., 232 Conn. 780, 787 (1995). We begin by citing § 55-3 C.G.S., which states, “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.” This statute is uniformly interpreted as a general rule of presumed legislative intent that precludes statutes affecting substantive rights, as opposed to procedural rights, from having a retroactive application. Badolato v. New Britain, 250 Conn. 753, 757 (1999); Coley v. Camden Associates, Inc., 243 Con. 311, 316 (1997). This presumption may only be overcome by a clear and unequivocal expression of legislative intent to the contrary. Id.; Gil v. Courthouse One, 239 Conn. 676, 688 (1997); Davis v. Forman School, 54 Conn. App. 841, 854-56 (1999).

Section 31-307(e) states, “Notwithstanding any provision of the general statutes to the contrary, compensation paid to an employee for an employee’s total incapacity shall be reduced while the employee is entitled to receive old age insurance benefits pursuant to the federal Social Security Act. The amount of each reduced workers’ compensation benefit shall equal the excess, if any, of the workers’ compensation payment over the old age insurance benefits.” As this subsection directly affects the amount of compensation to which a claimant is entitled, it clearly constitutes a substantive change in the law, and the appellants do not attempt to argue otherwise. See Badolato, supra, 762. Rather, they adopt a different approach: they contend that the “date of injury” rule that normally governs the rights and obligations of the parties in a workers’ compensation case does not apply here, based upon the reasoning of our Supreme Court in Mulligan v. F.S. Electric, 231 Conn. 529 (1994).

In Mulligan, the Court held that a claimant’s average weekly wage as calculated pursuant to § 31-310 should be based upon his earnings during the weeks preceding his incapacity, rather than on the earnings preceding his injury, where a considerable period of time had intervened between the injury and the consequent incapacity. “Given the legislature’s intent to treat injured workers equally and to provide all incapacitated workers with compensation based on their loss of earning power, [the Court] declined to adopt [the] anomalous result” of calculating their benefits based on pre-injury earnings, regardless of whether said calculation was representative of their lost earning power. Mulligan, supra, 545. It is inaccurate for the appellants to conclude from this, however, that the Court implicitly rejected the “date of injury” rule with respect to calculation of a claimant’s compensation rate; indeed, the version of § 31-310 in effect on the date of the claimant’s injury was most assuredly applied to the case as controlling law. See Appellants’ Brief, pp. 5-6. Thus, the key question before us remains, is there any reason to believe that the legislature sought to give § 31-307(e)—a substantive provision of law—retrospective effect?

The statute itself gives no indication that it ought to be administered retroactively. Unlike the provisions of Public Act 95-277 as discussed in Hall, supra, P.A. 93-228 would not be rendered meaningless by failing to afford it retrospective application. Nor has there been a showing that § 31-307(e) was enacted in the face of dire economic need to immediately reduce a devastating financial burden on a particular entity. See Badolato, supra, 760 (P.A. 95-277 was intended to remove Second Injury Fund’s financial burden in the face of grave problem that threatened the economic health of this state). Further, we are unaware of any language in the legislative history of P.A. 93-228 that would suggest that § 31-307(e) was meant to apply to already-pending cases. Again, this provision appears to fall solidly within the category of substantive changes in the law, which are presumed to operate prospectively as per § 55-3. This presumption has not been rebutted. Therefore, we uphold the trier’s determination that § 31-307(e) is inapplicable to the instant case, as the claimant’s date of injury was February 27, 1988.

The trial commissioner’s decision is accordingly affirmed.

Commissioners Ernie R. Walker and Amado J. Vargas concur.

Workers’ Compensation Commission

Page last revised: December 17, 2004

Page URL: http://wcc.state.ct.us/crb/2002/4333crb.htm

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