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Repay v. Basher’s Electrical

CASE NO. 4541 CRB-4-02-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 24, 2003

JAMES REPAY

CLAIMANT-APPELLEE

v.

BASHER’S ELECTRICAL

EMPLOYER

and

CRUM & FORSTER

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant did not appear at the trial level nor on appeal.

The respondents were represented by Margaret McGrail, 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 Hine, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 5, 2002 Finding and Award of the Commissioner acting for the Fourth District was heard December 20, 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 appeals from the June 5, 2002 Finding and Award of the Commissioner acting for the Fourth District. In that Finding and Award the commissioner ordered the Fund to reimburse the respondent insurer for a pro rata share of indemnity payments made to the claimant, including cost-of-living adjustments [hereafter COLAs] pursuant to § 31-310.1 The Fund took the instant appeal and argues that it is only required to reimburse the respondent insurer the pro rata concurrent employment benefit rate plus a pro rata portion of the COLA without regard for the flat dollar COLA adjustments to which the claimant was entitled prior to Public Act 91-339 § 27.

The pertinent facts in this matter are as follows. On or about January 14, 1987, the claimant while in the course of his employment sustained a compensable injury which rendered him a paraplegic. At the time of the injury the claimant also worked for another employer and was eligible for concurrent employment benefits pursuant to § 31-310.

The claimant’s compensation rate was $408 with $216.24 of that amount attributable to his concurrent employment. Thus, the claimant’s concurrent employment at the date of his injury represents 53% of his compensation rate. Pursuant to § 31-310 the Second Injury Fund is obligated to reimburse the respondent insurance carrier for compensation related to the increase in the claimant’s average weekly wage due to his concurrent employment. Further, this tribunal held in Lizcano v. Holiday Inn, Crowne Plaza, 4036 CRB-7-99-4 (May 24, 2000) the concurrent employment provision of § 31-310 obligates the Fund to reimburse a portion of the COLA to which the claimant is entitled. However, Lizcano did not settle the question as to how the COLA amount the Fund was obligated to reimburse pursuant to § 31-310 would be calculated.

In its appeal, the Fund contends that it is not obligated to pay any portion of the COLA accruing to the claimant prior to October 1, 1991. Stated another way, the Fund argues that it is not responsible for reimbursing the flat rate dollar COLA or any subsequent pro rata COLA adjustment to the claimant’s compensation rate relating to the flat dollar COLA’s. We agree.

In the instant matter, the trier determined the Fund was responsible for reimbursement of COLAs in the same pro rata portion as existed between the compensation rate relating to concurrent employment, and the claimant’s compensation rate derived from the employment in whose employ he was injured. In other words, the trier determined that the Fund was responsible for reimbursing the insurance carrier for 53% of the claimant’s compensation rate including COLA adjustments.

We agree with the Fund that the computation of the pro rata amount it is obligated to reimburse for concurrent employment should not include amounts relating to the flat dollar COLA adjustments to which the claimant was entitled prior to the enactment of Public Act 91-339 § 27. In its brief the Fund noted that prior to the change in the COLA adjustment calculation resulting from Public Act 91-339 § 27, the flat dollar COLAs were the responsibility of the employer in whose employment the claimant was injured. See Appellant’s Brief, p. 2.

Sec. 31-307(a) C.G.S. 1987 provided in pertinent part:

The weekly compensation rate of each employee entitled to receive benefits under section 31-307 as a result of an injury sustained on or after October 1, 1969, which totally disables such employee continuously or intermittently for any period extending to the following October first or thereafter shall be adjusted annually as provided herein as of the following October first, and each subsequent October first, to provide such injured employee 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 section 31-309, to be effective as of any October first following the date of injury, is greater than the maximum weekly compensation rate prevailing at the time of injury, the weekly compensation rate which the injured employee was entitled to receive at the time of the injury shall be increased by the provisions of section 31-309 from the date of injury to such October first. Such cost-of-living increases shall be paid by the employer without any order or award from the commissioner. Such adjustments shall apply to each such payment made in the next succeeding twelve-month period commencing with the October first next succeeding the date of injury. (Emphasis ours).

Thus, we can see that a reasonable interpretation of COLA payments prior to Public Act 91-339 § 27 would have been to expect that the flat dollar COLA was the responsibility of the employer for whom the claimant worked at the time of the injury even where concurrent employment was applicable.

However, when confronted with any question as to the application and computation of COLA, we turn to our Supreme Court’s ruling in Gil v. Courthouse One, 239 Conn. 676 (1997). In Gil, the Supreme Court held that claimants who were entitled to flat dollar COLA adjustments by virtue of §31-307a(a) as codified prior to Public Act 91-339 § 27, should have the flat dollar COLAs added to their initial base compensation rate. In effect, the Gil court held that each claimant whose date of injury preceded the effective date of Public Act 91-339 § 27 was entitled to computation of an adjusted compensation rate, including the flat dollar COLA accruing as of October 1, 1990, and that adjusted compensation rate be further adjusted annually on a percentage basis as Public Act 91-339 § 27 directed.

Thereafter, following Gil, the computation of a COLA for an employee whose date of injury precedes Public Act 91-339 § 27 and, whose entitlement to a COLA exists after the effective date of the amendment, is a two step process. The first step is to compute an adjusted compensation rate which includes the accrued flat dollar COLAs to which the claimant was entitled as of October 1, 1990. The second step is to divide the applicable current maximum compensation rate by the maximum compensation rate in effect on October 1, 1990. This second step provides a percentage increase and is then multiplied by the adjusted compensation rate derived in the first step.

As § 31-310 provides that a portion of the compensation rate attributable to concurrent employment be reimbursed by the Second Injury Fund, the amount for which the Fund is responsible, must be consistent with the holding in Gil. In applying the methodology for COLA calculations prescribed by Gil, a situation is presented where the employer in whose employ the claimant was engaged at the time of the injury is put in the position of paying for escalating COLA costs which bear no relationship to the average weekly wage component derived while the injured employee was in its employ. Thus, as that part of the COLA calculation relates to wages earned at an employment other than the employment where the claimant sustained his injury, we cannot burden that employer for whom the claimant was working at the time of his injury with payment of a portion of the COLA that is directly attributable to wages earned in concurrent employment.

We therefore hold where a claimant was injured prior to the effective date of Public Act 91-339 § 27 and is entitled to concurrent benefits, the flat dollar COLA remain the responsibility of the employer in whose employ the claimant was injured. Thus, pursuant to § 31-310, the Fund must reimburse the employer for COLA adjustments to the claimant’s compensation rate relating to the claimant’s concurrent employment wages. However, the flat dollar COLA remain the responsibility of the employer for whom the claimant worked at the time of his injury.

Finally, we note that the appellee points to § 31-310 as it existed at the time of injury and cites the following:

Where the injured employee has worked for more than one employer at the time of injury and the average weekly wage received from the employer in whose employ he was injured, as determined under the provisions of this section, are insufficient for him to obtain the maximum weekly compensation rate from such employer under section 31-309 prevailing at the time of his injury, his average weekly wages shall be calculated upon the basis of wages earned from all such employers in the period of such concurrent employment not in excess of twenty-six weeks prior to the date of the injury, but the employer in whose employ the injury occurred shall be liable for all medical and hospital costs, a pro rata portion of the compensation rate based upon the ratio of the amount of wages paid by him to the total wages paid the employee in such average week but not less than an amount equal to the minimum compensation rate prevailing at the time of injury and, if he is totally incapacitated, the applicable dependency allowance, if any, due under section 31-308b. The remaining portion of the applicable compensation rate shall be paid from the second injury and assurance fund. (Emphasis ours).

The appellee contends that as the language of the statute is clear and unambiguous the responsibility of all COLAs rests with the Second Injury Fund. We might be persuaded by the appellee’s reasoning if we were not cognizant of the Supreme Court’s holding in Gil, supra.

We therefore reverse the June 5, 2002 Finding and Award of the Commissioner acting for the Fourth District.

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

1 The claimant was also entitled to a dependency allowance pursuant to § 31-308b C.G.S. 1987. There is no dispute between the parties that the $20 dependency allowance is the respondent insurer’s responsibility. BACK TO TEXT

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