Taylor v. P. J. Ladola’s

CASE NO. 1526 CRB-1-92-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 17, 1994

JAMES TAYLOR

CLAIMANT-APPELLANT

v.

P. J. LADOLA’S

EMPLOYER

and

CNA INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Robert Fitzgerald, Esq., formerly of Asselin & Associates, One Courthouse Square, Willimantic, CT 06226, presently of Fitzgerald & Prucker, 1127 Tolland Tpke., Suite 101, Manchester, CT 06040.

The respondents were represented by Margaret Corrigan, Esq., and Jason Dodge, Esq., both of Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

This Petition for Review from the October 7, 1992 Finding and Dismissal of the Commissioner for the First District was heard October 29, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the October 7, 1992 Finding and Dismissal of the Commissioner acting for the First District. In that Finding and Dismissal the commissioner concluded that the claimant was entitled to a cost of living adjustment computed so as to reflect a 2.5% increase over the claimant’s basic compensation rate.

The pertinent facts surrounding the trier’s Finding and Dismissal were set out in the trier’s factual findings and a Stipulation of Facts submitted by the parties. These facts may be summarized as follows.

The claimant sustained compensable traumatic injuries as the result of a fall on July 26, 1991. The claimant was thereafter totally disabled pursuant to Sec. 31-307 C.G.S. As of October 1, 1991 the claimant was entitled to a cost of living adjustment [hereinafter COLA] pursuant to Sec. 31-307a. The only question presented for review is whether the trier correctly ruled that the method of calculation for the COLA be computed on the basis of the method provided in Public Act 91-339, Section 27. That provision amended the method by which COLAS were calculated. The calculation had been a computation based on an increase in the dollar amount between the maximum weekly compensation rate existing at October 1 of the prior year and October 1 of the succeeding year, and was changed to a calculation based on the percentage of the increase in the difference in the annual average production wage.

At the time of claimant’s injury Sec. 31-307a(a) as amended by Public Act 91-32, Section 24 provided:

The weekly compensation rate of each employee entitled to receive compensation under section 31-307, as amended by Section 23 of this act, as a result of an injury sustained on or after October 1, 1969, which totally disables the employee continuously or intermittently for any period extending to the following October first or thereafter, shall be adjusted annually...to provide the 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 the injury, is greater than the maximum weekly compensation rate prevailing as of the date of the injury, the weekly compensation rate which the injured employee was entitled to receive at the date of the injury shall be increased by the dollar amount of the increase in the maximum weekly compensation rate required by the provisions of section 31-309 from the date of the injury to such October first.... 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. (emphasis ours)

Section 31-309 at the time of claimant’s injury provided:

[T]he weekly compensation received by an injured employee under the provisions of this chapter shall in no case be more than one hundred fifty per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state as hereinafter defined for the year in which the injury occurred.... The average weekly earnings of production and related workers in manufacturing in the state shall be determined by the labor commissioner on or before the fifteenth day of August of each year, to be effective the following October first, and shall be the average of the manufacturing production and related workers weekly earnings for the year ending the previous June thirtieth and shall be so determined in accordance with the standards for the determination of average weekly earnings of production and workers in manufacturing established by the limited States Department of Labor, Bureau of Labor Statistics.

However, Public Act 91-339 amended both Sec. 31-307a and Sec. 31-309. In terms of the issue posed on appeal, the critical amending language to Sec. 31-307a was contained in Public Act 91-339, section 27. That section provided:

If the maximum weekly compensation rate as determined under the provisions of section 31-309, as amended by Section 29 of this act, 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 the injury, the weekly compensation rate which the injured employee was entitled to receive at the date of the injury shall be increased by the percentage of the increase in the maximum weekly compensation rate required by the provisions of section 31-309, as amended by Section 29 of this act, from the date of the injury to such October first.... (emphasis ours).

Public Act 91-339, Sec. 29 amended Sec. 31-309(a) in pertinent part as follows:

[T]he weekly compensation received by an injured employee under the provisions of this chapter shall in no case be more than one hundred fifty per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state as hereinafter defined for the year in which the injury occurred except that the weekly compensation received by an injured employee whose injury occurred before the effective date of this act shall be computed according to the provisions of law in effect at the time of his injury....

While not specifically found in the trier’s factual findings but incorporated by reference, is the former Chairman of the Workers’ Compensation Commission’s memo dated October 30, 1991. In that memo the former Chairman noted that questions as to the application of Public Act 91-339 and its amendment altering the calculation of COLAS from a dollar amount to a percentage increase based on the maximum compensation rate had arisen. See Exhibit C.

The former Chairman reviewed certain aspects of Public Act 91-339 and concluded that persons injured before October 1, 1991 were entitled to a COLA but the calculation of the amount of that COLA should be based on the percentage increase as set out in Public Act 91-339, Sec. 27. The former Chairman then provided in his memo the reasoning he applied in reaching his conclusion. He noted that Sec. 29 of Public Act 91-339 amending Sec. 31-309 contained a savings clause which provided “that the weekly compensation received by an injured employee whose injury occurred before the effective date of this act shall be computed according to the provisions of law in effect at the time of his injury”.

The former Chairman reasoned that,

[o]ver the years, “compensation rate” has come to mean the worker’s base rate computed at the time of injury. The cost of living increase has been called an “adjustment”. Therefore, when Section 27 changes the computation of the “adjustment” to a percentage increase rather than a dollar amount and has no saving clause as does Section 29 when it refers to the compensation rate, the legislative intent is to have all cost of living adjustments computed after October 1, 1991 to be done on a percentage basis.

In his argument advancing rejection of the application of Public Act 91-339 calculation of COLAS on a percentage basis, the claimant argues that the commissioner impermissibly applied Public Act 91-339 retrospectively. We disagree. As the former Chairman’s memo indicated, and as noted in respondent’s brief the particular provision of Public Act 91-339 amending the COLA only affected the method by which it was calculated not a claimant’s entitlement to the COLA.

We note that there is a presumption of legislative intent that statutes affecting substantive changes in the law are to be construed prospectively unless there is a clear legislative intent that the statute be applied otherwise. See DeAlmeida v. M.C.M. Stamping Corp., 29 Conn. App. 441, 450, (1992) aff’g., 10 Conn. Workers’ Comp. Rev. Op. 21, 1097 CRD-7-90-8, 1139 CRD-7-90-11 (1991). However, in the former Chairman’s memo the legislative intent of Public Act 91-339 was discussed. In his reference to that intent, the former Chairman noted:

It must be recalled that in the legislative history of Public Act 91-339, H.B. 7339 in the General Assembly deliberations, an earlier version abolished cost of living increases completely by freezing the maximum compensation rate at its present level. Hence the legislature never considered that the employee injured before the 1991 legislation, had a basic constitutional or contractual right to future cost of living increases after 1991. The percentage increase, rather than the dollar amount increase, in Sec. 27, P.A. 91-339, amending Sec. 31-307a, together with the failure to freeze the Sec. 31-309 provisions therefore constituted a compromise, but they still evinced a legislative intent to reduce the amount of cost of living adjustments.1

Our review of the legislative intent surrounding the enactment of Public Act 91-339 clearly evinces an intent to control and/or reduce Workers’ Compensation costs generally. The following comments exemplify that intent. In the proceedings before the Joint Standing Committee of Labor and Public Employees, the representative for the Connecticut Business and Industry Association, Bonnie Stewart, testified in reference to H.B. 7339 and stated in pertinent part, “There has to be meaningful medical cost containment measures adopted and that there’s got to be something to insure accountability, employer input and fiscal oversight into this system.... There are a number of measures in here which we applaud you for, such as the cost of living adjustment, which is something that we requested because it would be a more equitable means of calculating the COLAS for the people collecting them.” Conn. Joint Standing Committee Hearings, Labor and Public Employees 1991 Sess. Pp. 907.

In the discussion before the General Assembly’s House of Representatives, Rep. Rapoport stated, “I think that what the bill focuses on and the amendment, in all the various cost centers of the Workers’ Compensation system, some of them are going to be studied, the administrative costs, the rate setting process, but the focus here is on lowering the benefits for injured workers, okay? And the commentary that I’ve seen, the letters that I’ve received from businesses and others in my district indicate that the problem here is that we want to lower the costs to businesses of the Workers’ Compensation system.” 34 H.R. Proc. Pt. 24, 1991 Sess., pp. 9046-9047.

We are persuaded by both the legislative intent of Public Act 91-339 as well as much of the reasoning and policy determination set out in the former Chairman’s memo of October 30, 1991 as to the application of Public Act 91-339 and its change in the calculation of COLAS. Further, as the respondent-appellee points out in his brief, the COLA payment is an adjustment in the calculation of which occurs after the date of a claimant’s injury. It is a calculation of an amount which occurs at a certain time following a claimant’s injury or date of disability. Thus, the calculation of the amount of the COLA does not vest at the time of the injury or disability.

Again, while we are indeed cognizant of our courts reluctance to construe statutes retroactively; see e.g., DeAlmeida, supra, see also, Sec. 55-1 C.G.S., we are also aware that whether a statute may be applied retroactively has often turned on whether the amending act was “substantive” or “procedural” in character. The DeAlmeida court noted: “Procedural statutes generally will be applied retroactively absent contrary legislative intent. (citation omitted) This rule, however, is not purely mechanical in its application. (citation ommitted) Absent an express legislative intent, a statute will not be applied retroactively, even if it is procedural, when ‘considerations of good sense and justice dictate that it not be so applied’. American Mason’s Supply Co. v. F.W. Brown Co., 174 Conn. 219, 223 (1978).” DeAlmeida, supra at 450-51.

Clearly the particular provisions of Public Act 91-339 at issue altered the procedure utilized by the commission in the determination of the amount of COLA payments. Further, as the former Chairman noted in his October 30, 1991 memo, the legislature’s intent was to reduce the amount of the COLAS paid to claimants. The application of the amending language in Sec. 31-307a as provided in Public Act 91-339, Sec. 27 in the instant matter is entirely consistent with that intent.

We therefore affirm the October 7, 1992 Finding and Dismissal of the Commissioner acting for the First District.

Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.

1 Some of the former Chairman’s statements quoted above are in part based on his own recollection of the events surrounding H.B. 7339. Given his tenure at the time of H.B. 7339’s consideration and the proposed legislation’s profound change in the administration and benefit levels of the Workers’ Compensation Act, his involvement and input is undeniable. Therefore, the former Chairman’s recollections deserve considerable persuasive weight. BACK TO TEXT