CASE NO. 5571 CRB-2-10-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 1, 2011
AKIM COMPANY, INC.
HARTFORD, THE NEWCCC
SECOND INJURY FUND
The claimant was represented by Howard B. Schiller, Esq., 55 Church Street, P.O. Box 699, Willimantic, CT 06226. However, the issue on appeal did not involve the claimant, therefore, claimant did not file a brief or appear at oral argument.
The respondents-appellees were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, LLC, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.
The respondent-appellant, Second Injury Fund was represented by Yinxia Long, Esq., Assistant Attorney General, Office of the Attorney General, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the June 25, 2010 Finding and Award of the Commissioner acting for the Second District was heard December 17, 2010 before a Compensation Review Board panel consisting of Commissioners Nancy E. Salerno, Jack R. Goldberg and Stephen B. Delaney.
NANCY E. SALERNO, COMMISSIONER. This case involves a dispute as to the calculation of cost-of-living adjustments (“COLA”) and to what extent the respondent Second Injury Fund (the “Fund”) is obligated to reimburse the respondent/insurer.1 The dispute was based on the application of a now repealed statute, § 31-307(e) C.G.S. which created an offset based on a claimant’s social security earnings.2 The Fund has appealed from a Finding and Award dated June 25, 2010 wherein the trial commissioner determined the Fund was responsible for the reimbursement of the full amount of the COLA. The Fund believes the trial commissioner misinterpreted the applicable law on the issue. We disagree, and affirm the Finding and Award. The appeal is dismissed.
The trial commissioner reached the following findings of fact and as no Motion to Correct was filed in this matter, we may give these findings conclusive effect. See Corcoran v. Amgraph Packaging, Inc., 4819 CRB-2-04-6, 4948 CRB-2-05-5 (July 26, 2006) and Crochiere v. Board of Education, 227 Conn. 333, 347 (1993). The claimant in this matter suffered compensable injuries on October 4, 1993 for which a voluntary agreement was approved in 2003. The commissioner chronicled the various periods in which the claimant received total disability benefits, which were continuous from September 13, 2005 to the June 25, 2010 Finding and Award. The claimant qualified as of February 21, 2008 for COLAs pursuant to § 31-307a(c) C.G.S.3 Pursuant to that statute the respondent-employer or its insurer is entitled to be reimbursed by the Fund for COLAs. At all relevant times, herein the claimant was entitled to receive old age insurance benefits pursuant to the Federal Social Security Act. Pursuant to § 31-307(e) C.G.S., as it was in effect on the claimant’s date of injury, while the claimant is entitled to receive old age insurance benefits pursuant to the Federal Social Security Act, compensation paid to the claimant for total incapacity shall be reduced by the old age insurance benefit. The claimant’s base weekly compensation rate is $433.70 and during the five-year period that the claimant was totally disabled, prior to qualification for cost-of-living adjustments, the respondent-employer reduced the compensation paid to the claimant for total incapacity pursuant to § 31-307(e) C.G.S.
The respondent-insurer/employer made a timely request for statutory reimbursement of COLAs from the Fund. This request sought reimbursement of the full value of COLAs asserting that any reduction for old age insurance benefits under the statute is taken from the claimant’s base weekly compensation rate. Findings, ¶ 10. The trial commissioner summarized the Fund’s position contesting this request as follows in Findings, ¶ 13.
The Second Injury Fund asserts that whatever percentage the cost-of-living adjustment added to the total incapacity rate that prior to the reduction pursuant to Section 31-307(e), that percentage should be applied to the claimant’s old age insurance benefit to determine the appropriate reduction to which the Second Injury Fund is entitled to from the cost-of-living adjustment reimbursement pursuant to Section 31-307(e) and 31-307a(c). Id.
The trial commissioner determined that based on his reading of the appropriate statutes that the respondent-employer is entitled to reimbursement from the Fund pursuant to § 31-307a(c) of the full value of the COLA. He determined “[t]he respondent-insurer’s claim for reimbursement pursuant to § 31-307a(c) comports with the correct interpretation of § 31-307(e) and § 31-307a(c).” Conclusion, ¶ B.
The Fund makes a variety of arguments as the basis for its claim of legal error. We did not find these arguments persuasive. It first contends the trial commissioner erred in construing the statute as it did. The Fund argues the trier’s construction of the statute does not comport with the “plain meaning” standard required under § 1-2z C.G.S.
We note in the Fund’s own appellate brief before this Board it quoted the text of § 31-307a(c) C.G.S. Further, in its brief, the Fund emphasized portions of the text of the statute. We provide the text and emphasize parts of the statute quoted by the Fund.
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 the employer’s 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.
Appellant Brief, p. 9 (Emphasis in original brief).
Reading the text of § 31-307(a)(e) C.G.S. as quoted by the Fund we discern no basis for concluding the trial commissioner’s interpretation of the statute was inconsistent with § 1-2z C.G.S.
The Fund also argues that the opening phrase of § 31-307(e) C.G.S. contains a proviso stating that the terms of the statute are to be construed “[n]otwithstanding any provision of the general statutes to the contrary.” We might have accorded greater credence to the Fund’s argument here except for the chronology of the legislature’s adoption of both § 31-307(e) C.G.S. and § 31-307a(c) C.G.S. Section 31-307(e) C.G.S. was enacted as part of Public Act 93-228, sec. 16. Section 31-307a(c) C.G.S. was enacted as part of Public Act 97-205, sec. 4.4 It would seem illogical to construe the term “notwithstanding” as nullifying a statute that was not part of chapter 568 at the time of that statute’s enactment.5
We also note, that in applying the terms of § 1-2z C.G.S. to the actual verbiage of § 31-307(e) C.G.S., we simply cannot ascertain how this statute was intended to provide a pro-rata apportionment of the COLA reimbursements, as sought by the Fund. The statute is silent on the issue which the parties are presently disputing.
At oral argument, counsel for the Fund rested much of his argument on a public policy argument that the General Assembly, in enacting the various reforms it has undertaken of Chapter 568, intended to benefit the Fund in the same manner which it intended to benefit insurers and employers. This public policy argument is not supported by the statutory interpretation argument which the Fund advanced. The Fund did not support their argument by citing court decisions or legislative history that would allow us to fill this lacuna in a manner that would offer the Fund relief from the statutory silence.
We believe the trial commissioner appropriately applied § 1-2z C.G.S. in interpreting the statutes governing COLA reimbursement. We find no error, affirm the Finding and Award and dismiss this appeal.
Commissioners Jack R. Goldberg and Stephen B. Delaney concur in this opinion.
1 This claim has been the subject of prior proceedings. See Rayhall v. Akim Corp., 4321 CRB-2-00-12 (November 5, 2001), aff’d, 263 Conn. 328 (2003). BACK TO TEXT
2 The terms of § 31-307(e) are as follows:
(e) 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 payment shall equal the excess, if any, of the workers’ compensation payment over the old age insurance benefits. BACK TO TEXT
3 The relevant portion of the statute 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 or her 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 or her 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 the employer’s 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. No claim for payment of retroactive benefits may be made to the Second Injury Fund more than two years after the date on which the employer or its insurance carrier paid such benefits in accordance with this subsection. BACK TO TEXT
4 Later amended by Public Act 98-104 sec. 3. BACK TO TEXT
5 We also note that subsequent to the enactment of § 31-307a(c) C.G.S., the General Assembly repealed § 31-307(e) C.G.S. See Public Act 06-84. BACK TO TEXT