State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Bergeson v. City of New London New London Police Dept.

CASE NO. 4489 CRB-2-02-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 21, 2003

Estate of AXEL BERGESON, JOYCE BERGESON, Dependent Spouse

CLAIMANT-APPELLEE

v.

CITY OF NEW LONDON NEW LONDON POLICE DEPT.

EMPLOYER

and

CIRMA

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Gary Huebner, Esq., Embry & Neusner, 118 Poquonnock Road, P.O. Box 1409, Groton, CT 06340-1409.

The respondents were represented by Erik S. Bartlett, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

The Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the February 6, 2002 Finding and Award of the Commissioner acting for the Second District was heard August 23, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The Second Injury Fund has petitioned for review from the February 6, 2002 Finding and Award of the Commissioner acting for the Second District. The Fund contends on appeal that the trier erred by ordering it to reimburse the respondent employer for cost-of-living adjustments (COLAs) paid to the claimant pursuant to § 31-306(a)(2)(A) C.G.S., and to do so for COLAs payable for dates beyond October 1, 1997. We find error on the first count, and reverse the trial commissioner’s decision without reaching the latter argument.

The facts here are not in dispute. The decedent was a police officer for the city of New London who suffered a fatal heart attack on June 17, 1995. His widow, the claimant Joyce Bergeson, claimed benefits pursuant to § 7-433c C.G.S.1, and was found entitled to such benefits via a Finding and Award dated November 9, 1995. Since that time, New London has been paying her COLAs as per § 31-306(a)(2)(A)2 on a without-prejudice basis. In the action below, the city sought reimbursement for those COLAs from the Fund. Despite the Fund’s argument that it is not legally obligated to reimburse employers for COLAs that might be paid on account of § 7-433c claims, the trier concluded that the Fund was required to make such reimbursement under § 31-306(a)(2)(A), and to do so for all COLAs payable from the date of the decedent’s death forward. The Fund has filed an appeal from that decision, along with the denial of its Motion to Correct.

Section 31-306 is part of the Workers’ Compensation Act. Thus, where an employee’s death results from an accident or occupational disease arising out of and in the course of his employment, the dependents of that employee are eligible for benefits under § 31-306 as long as they comply with the procedural requirements of Chapter 568. See, e.g., Tardy v. Abington Constructors, 71 Conn. App. 140 (2002); Dumont v. State/Southern Connecticut State University, 11 Conn. Workers’ Comp. Rev. Op. 122, 1320 CRD-3-91-10 (June 16, 1993). These workers’ compensation benefits include COLAs pursuant to § 31-306(a)(2); Belanger v. American Optical, 3353 CRB-1-96-5 (Jan. 22, 1998); and we have held that, with regard to compensable injuries occurring between July 1, 1993 and October 1, 1997, COLAs paid to dependents of a decedent by a respondent employer or insurer must be reimbursed by the Second Injury Fund. Cunningham v. Monroe Group, 4322 CRB-4-00-12 (Dec. 20, 2001); see also, Hasselt v. Lufthansa German Airlines, 4345 CRB-7-01-1 (Dec. 7, 2001), aff’d, 262 Conn. 416 (2003) (Fund is required to reimburse employer for COLAs payable after October 1, 1997 as per § 31-307a(c)).

The claimant in this case is not collecting benefits under the Workers’ Compensation Act, however. Her claim for dependent’s benefits was filed under § 7-433c, which is bonus legislation insofar as a claimant is not required to prove a connection between his work duties and his heart disease or hypertension in order to recover under the statute. Plainville v. Travelers Indemnity Co., 178 Conn. 664, 673-74 (1979). The legislature has simply chosen to borrow Chapter 568’s administrative and procedural avenues for bringing claims and determining benefits recoverable under § 7-433c. Collins v. West Haven, 210 Conn. 423, 429-30 (1989); Bakelaar v. West Haven, 193 Conn. 59, 68 (1984). What this means is that, even though benefits payable under § 7-433c are distributed “in the same amount and the same manner as that provided under chapter 568,” they create no liability under the Act, thereby placing such benefits in a different class for various purposes. For example, a workers’ compensation insurance policy that provided coverage for “all compensation and other benefits required of the insured by the workmen’s compensation law” and “any occupational disease law” did not obligate the insurer to cover liability for compensation payable under § 7-433c. Plainville, supra. In fact, a municipal employer is not required by law to insure its § 7-433c liability, and may devise alternate means of paying benefits that come due under that statute, including the use of a group health insurance policy to process medical bills. Rinaldi v. Enfield, 4459 CRB-1-01-11 (Dec. 27, 2002).

Prior cases establish that a claimant who is collecting benefits under § 7-433c is entitled to augment his or her base compensation rate with the same cost-of-living adjustments that are available to claimants under the Act. McNulty v. Stamford, 12 Conn. Workers’ Comp. Rev. Op. 32, 1332 CRD-7-91-10 (Jan. 26, 1994), rev’d on other grounds, 37 Conn. App. 835 (1995)(Fund not liable to repay municipal employer for COLAs); Czujak v. Bridgeport, 3535 CRB-4-97-2 (June 10, 1998), aff’d, 55 Conn. App. 789 (1999), cert. denied, 252 Conn. 920 (2000). COLAs are part of the Act’s system of compensation, and must be provided to § 7-433c claimants just as they are provided to claimants with bona fide workers’ compensation claims. In McNulty, however, our Appellate Court expanded upon the reasoning in cases such as Bakelaar, supra, and Plainville, supra, by holding that the Fund is not liable to reimburse municipalities for payments made under § 7-433c, regardless of its liability for workers’ compensation claims under certain provisions of the Act. There, the city of Stamford was found responsible for funeral expenses and cost-of-living adjustments that were payable to a set of dependents under § 31-306. The question then arose whether the Fund should reimburse the town for those expenses, as prescribed by that same statute.

Citing the principle that payment from a special fund such as the Second Injury Fund should only be made in accordance with express statutory authority; Going v. Cromwell Fire District, 159 Conn. 53, 61 (1970); the court held that § 31-354 specifies situations in which the Fund shall be liable, and that it fails to include reimbursements for payments made under § 7-433c, which itself makes no reference to the Fund.3 The court stressed that compensation under § 7-433c is made the responsibility of municipal employers, and limited to that source. “The Fund is not a municipal employer. The fund is never mentioned in § 7-433c as a payor or reimburser. . . . § 7-433c provides only that benefits are calculated pursuant to chapter 568.” McNulty, supra, 842. “For the second injury fund to be liable for payment of an award, the award must have been made pursuant to the Workers’ Compensation Act, or some other express statutory authorization for fund liability is required. As there was neither in this case, . . . we . . . [order] that the fund is relieved of any liability.” Id., 845.

The language concerning reimbursements that is at issue here was not present in the statute at the time McNulty was decided. That portion of § 31-306(a)(2)(A) was enacted in 1997 via Public Act 97-205 as a means of restoring cost-of-living adjustments to certain classes of claimants following the legislature’s elimination of COLAs in 1993. Yet, the facts of McNulty remain comparable to the case now before us. In order to avoid running afoul of the law prohibiting the retroactive imposition of new substantive obligations; see § 55-3 C.G.S.; Coley v. Camden Associates, Inc., 243 Conn. 311, 316 (1997); our legislature provided that adjustments payable on account of injuries occurring between July 1, 1993 and October 1, 1997 (the effective date of P.A. 97-205) would be initially paid by the employer or insurer, who would then be “reimbursed by the Second Injury Fund, as provided in section 31-354,” upon presentation of the necessary vouchers and information to the Treasurer. The use of the Fund as a vehicle for reimbursement of retroactively-payable COLAs is an approach that our legislature has taken in the past, and was implemented in the language of § 31-306(a)(2)(B)—which concerns dependents receiving compensation for deaths arising from injuries that occurred before October 1, 1977, the very situation that was before the court in McNulty.

There is little meaningful difference between the reimbursement provision at issue in McNulty and the one now before us here. The nature of the Fund’s involvement under both statutes is identical, and we have no sound basis upon which to distinguish McNulty from the instant case. Therefore, it is incumbent upon this board to follow the precedent set by our Appellate Court, and to reverse the trial commissioner’s order that the Second Injury Fund assume liability for the COLAs being paid by the decedent’s employer. We thus need not reach the second issue raised by the Fund, i.e., whether COLAs payable after October 1, 1997 would continue to be its responsibility.

Given this ruling, we must briefly mention an argument raised by the appellee City of New London in its brief, which was also present in its proposed findings to the trial commissioner. The city maintains that, in the event that this board finds the Fund not obligated to reimburse New London for COLAs, § 31-306(a)(2)(A) would be rendered unconstitutional, as the retroactive imposition of COLA obligations would effectively deprive it of a property right without due process of law. New London cites the Fourteenth Amendment of the United States Constitution and Article I, §§ 8 and 10 of the Connecticut Constitution in support of its position. As this board lacks the authority to determine the constitutionality of statutes, we cannot adjudicate this issue. Rayhall v. Akim Co., Inc., 4321 CRB-2-00-12 (Nov. 5, 2001); Melendez v. Valley Metallurgical, 4178 CRB-2-00-1 (May 1, 2001). We may do no more than take note of it for the record.

The trial commissioner’s decision is accordingly reversed.

Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.

1 Section 7-433c provides: “(a) Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term “municipal employer” shall have the same meaning and shall be defined as said term is defined in section 7-467.

(b) Notwithstanding the provisions of subsection (a) of this section, those persons who began employment on or after July 1, 1996, shall not be eligible for any benefits pursuant to this section.” BACK TO TEXT

2 The relevant parts of § 31-306 state: “(a) Compensation shall be paid to dependents on account of death resulting from an accident arising out of and in the course of employment or from an occupational disease as follows:

. . . (2) To those wholly dependent upon the deceased employee at the date of his injury, a weekly compensation equal to seventy-five per cent of the average weekly earnings of the deceased calculated pursuant to section 31-310, after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act made from such employee’s total wages received during the period of calculation of the employee’s average weekly wage pursuant to said section 31-310, as of the date of the injury but not more than the maximum weekly compensation rate set forth in section 31-309 for the year in which the injury occurred or less than twenty dollars weekly. (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, 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 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. 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. With respect to any dependent receiving benefits on October 1, 1997, with respect to any injury occurring on or after July 1, 1993, and before October 1, 1997, such benefit shall be recalculated to October 1, 1997, as if such benefits had been subject to recalculation annually under this subparagraph. The difference between the amount of any benefits which would have been paid to such dependent 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, 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 subparagraph for deaths from 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. . . .” BACK TO TEXT

3 In actuality, the Appellate Court’s opinion cited section 31-345, which concerns assessments against employers for administrative costs, and does not mention the Fund at all. It is clear from the context that the court intended to cite section 31-354(a), which currently provides in part, “The fund shall be used to provide the benefits set forth in section 31-306 for adjustments in the compensation rate and payment of certain death benefits, in section 31-307b for adjustments where there are relapses after a return to work, in section 31-307c for totally disabled persons injured prior to October 1, 1953, in section 31-349 for disabled or handicapped employees and in section 31-355 for the payment of benefits due injured employees whose employers or insurance carriers have failed to pay the compensation, and medical expenses required by this chapter, or any other compensation payable from the fund as may be required by any provision contained in this chapter or any other statute and to reimburse employers or insurance carriers for payments made under subsection (b) of section 31-307a.” BACK TO TEXT

Workers’ Compensation Commission

Page last revised: December 16, 2004

Page URL: http://wcc.state.ct.us/crb/2003/4489crb.htm

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