State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Gil v. Courthouse One

CASE NO. 3278 CRB-6-96-3



MAY 1, 1996










The claimant was represented by Robert Farrell, Esq. 71 Gordon Street, Wethersfield, CT 06109. However, Robert F. Carter, Esq., Carter & Civitello, Woodbridge Office Park, One Bradley Road, Suite 301, Woodbridge, CT 06525 appeared at oral argument on behalf of the claimant.

The respondent-Second Injury Fund was represented by Nancy Sussman, Esq., and Michael Belzer, Esq., Assistant Attorneys General, P.O. Box 120, 55 Elm Street, Hartford, CT 06141-0120.

This Petition for Review from the February 29, 1996 Finding On Cost Of Living Adjustments of the Commissioner acting for the Sixth District was heard April 19, 1996 before a Compensation Review Board panel consisting of Commissioners Amado J. Vargas, Michael S. Miles and Robin L. Wilson.


AMADO J. VARGAS, COMMISSIONER. On December 1, 1983, while in the course of her employment the claimant in the instant matter was exposed to chlorine gas. As a result of that exposure the claimant suffered a permanent physical impairment to her respiratory system and has been totally disabled since February, 1984. Thereafter, pursuant to §31-307a, the claimant received cost of living adjustments every October first since she began receiving temporary total disability benefits. It is the calculation of the cost of living adjustment which gives rise to this appeal.

At the time of claimant’s injury, the claimant’s average weekly wage was $139.96 and her compensation rate was $93.35. On November 5, 1986, the respondent, Second Injury Fund, assumed liability for the claimant’s injuries. In December, 1995, the Second Injury Fund notified the claimant that pursuant to this tribunal’s opinion in Wolfe v. JAB Enterprises, Inc., 14 Conn. Workers Comp. Rev. Op. 127, 1875-CRB-3-93-10 (June 5, 1995), a different method for calculation of the cost of living adjustment would be utilized. That method effectively reduced claimant’s biweekly payments from $518.21 to $316.04 (or $259.11 to $158.02 weekly). The claimant brought the matter before the Commissioner acting for the Sixth District.

In his February 29, 1996 Finding On Cost Of Living Adjustments, the trier reviewed the facts which gave rise to the claimant’s claim. In addition to those already noted above, the trier found that on October 4, 1991 the claimant was receiving biweekly checks in the amount of $466.06 (or $233.03 weekly). In October, 1994 the claimant’s checks for temporary total benefits with accumulated cost of living adjustments increased to $518.21 biweekly (or $259.11 weekly). In December, 1995 the Second Injury Fund informed the claimant that they were using the method of calculation set out by the Compensation Review Board [hereinafter CRB] in Wolfe, supra, and thus the claimant’s biweekly sum was reduced to $316.04 or ($158.02 weekly). In its communication to the claimant, the Second Injury Fund indicated that it was calculating the cost of living adjustment “by taking the current maximum rate of $584.00 and dividing it by the maximum rate of $345.00 at the time of claimant’s injury to obtain a percentage rate. The percentage rate was then multiplied by the claimant’s base compensation rate of $93.35.” Finding Paragraph #16.

The trial commissioner concluded that the Second Injury Fund’s method of calculating the cost of living adjustment was incorrect. The commissioner concluded that the claimant’s cost of living adjustment should reflect the flat dollar amount increase from 1984 through September 30, 1991 and the utilization of a percentage base increase should be applied from October 1, 1991. The Second Injury Fund disagreed and took the instant appeal.

The above reflects the factual scenario which gives rise to this appeal. In essence, this panel is being asked to reexamine this tribunal’s earlier holdings in Taylor v. P.J. Ladola’s, 12 Conn. Workers’ Comp. Rev. Op. 378, 1526 CRB-1-92-10 (Aug. 17, 1994), and Wolfe v. JAB Enterprises, Inc., 14 Conn. Workers’ Comp. Rev. Op. 127, 1875 CRB-3-93-10 (June 5, 1995). As the CRB’s holding in Wolfe is clearly based on the decision reached by the panel in Taylor, we begin by reviewing this tribunal’s decision in Taylor.

In Taylor, the CRB concluded that the language amending §31-307a(a) pursuant to Public Act 91-339 §27 could be applied retroactively, as it merely affected the procedure for determining the COLA calculation and not a claimant’s entitlement to a COLA. Thus, the Taylor panel reasoned, the calculation of COLAs for those injured prior to October 1, 1991 could be determined on the basis of the percentage annual change in the maximum rate as §31-307a(a) provided after Public Act 91-339.1

Our review of the applicable law at issue leads us to conclude that the Taylor decision impermissibly applied Public Act 91-339’s provisions retroactively as to COLAs. The provisions of Public Act 91-339 affecting COLAs were not procedural in character, contrary to the CRB’s opinion in Taylor. We conclude that the legislature’s amendment to §31-307a(a) was indeed a change in the substance of our workers’ compensation law and therefore should not be applied retroactively.

Our decision here is based in large measure on the principle of statutory construction that substantive laws are to be given prospective application. As the Appellate Court stated in DeAlmeida v. M.C.M. Stamping Corp., 29 Conn. App. 441, 450-51 (1992):

Our Supreme Court has consistently expressed reluctance to “construe statutes retroactively where the statutes affect substantial changes in the law, unless the legislative intent clearly and unequivocally appears otherwise.” State v. Lizotte, 200 Conn. 734, 741 (1986); Rudewicz v. Gagne, 22 Conn. App. 285, 288 (1990). Procedural statutes generally will be applied retroactively absent contrary legislative intent. State v. Lizotte, supra; Rudewicz v. Gagne, supra. This rule, however, is not purely mechanical in its application. State v. Lizotte, supra. 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.” (Citations omitted; internal quotation marks omitted.) American Masons’ Supply Co. v. F.W. Brown Co., 174 Conn. 219, 223 (1978). “These aids to legislative interpretation apply with equal force to amendatory acts which effectuate changes in existing statutes.” Id.

We conclude that the law to be applied is the law as it existed at the time of injury. Iacomacci v. Trumbull, 209 Conn. 219, 222 (1988). We therefore reverse the CRB’s holding in Taylor, and reverse Wolfe insofar as it relates to claims arising prior to October 1, 1991. Claimants entitled to COLAs pursuant to §31-307a(a) prior to the effective date of Public Act 91-339 are entitled to have the COLA computed in the manner prescribed at the time of injury, i.e., on the basis of the flat dollar increase between the maximum compensation rate at the time of injury and the maximum compensation rate for the period for which the COLA is being computed.

Furthermore, we believe that our holding here is consistent with an uncodified provision contained in Public Act 91-339 § 50 which provided: “Nothing in this act shall be construed to affect any claims for compensation arising from any injury that occurred before October 1, 1991. Nothing in this act shall be construed to reduce the amount of any compensation awarded for any injury that occurred before October 1, 1991.” We also believe that the conclusion we reach today is consistent with the broad humanitarian purpose which underpins our Workers’ Compensation Act. See Bahre v. Hogbloom, 162 Conn. 549 (1972).

Accordingly, the trial commissioner’s decision is reversed, and this matter is remanded to the trial commissioner to enter an order in accordance with the above.

Commissioner Michael S. Miles concurs.

ROBIN L. WILSON, COMMISSIONER, Concurring. I concur with the result reached by the majority, but write separately as I wish to comment on the CRB’s earlier opinion in Taylor and the reasoning process I believe was applied by the Taylor panel. Additionally, I write separately as I believe the overruling of an earlier holding by this tribunal is a serious matter and will have long-standing precedential effect.

In 1991, the legislature passed two acts which altered our Workers’ Compensation Act. The first, Public Act 91-32, was an act which was intended to revise technically certain language in our Workers’ Compensation Act. It is my understanding that act was intended to modernize certain language and organize the act in a more comprehensible way as the language of the act had been added to in piecemeal fashion over the course of its inception. Public Act 91-32 was merely intended to provide technical revisions to the Workers’ Compensation Act. See 590 H. Proc. Pt. 5 Vol. 34 pp. 1960-61, 34 S. Proc. Pt 3, 1991 Sess. p. 836. Conn. Joint Standing Committee Hearings, Labor and Public Employees, 1991 Sess., pp. 16-18. That act was to take effect July 1, 1991. During this same legislative session, the legislature considered and passed Public Act 91-339, “An Act Concerning Workers’ Compensation Reform.” Specifically, at issue in the instant matter is Public Act 91-339 and its amendment to the cost of living adjustments [hereinafter COLAs]. Prior to Public Act 91-339 the annual adjustment for COLAs was determined on the basis of a flat dollar increase in the maximum compensation rate.

Sec. 31-307a(a) provided employees entitled to receive temporary total benefits with a COLA and § 31-309 provided the mechanism for computing the COLA. Public Act 91-339, §27, amended §31-307a(a) as follows:

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 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 as provided in this subsection as of the following October first, and each subsequent October first, 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 percentage 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 cost-of-living increases provided under this subsection 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.
(emphasis supplied)

This particular provision of Public Act 91-339 took effect October 1, 1991. Thereafter, the question arose as to whether a percentage based calculation applied to those who were injured prior to the effective date of this enactment. This tribunal was asked to consider that question in Taylor v. P.J. Ladola’s, 12 Conn. Workers’ Comp. Rev. Op. 378, 1526 CRB-1-92-10 (Aug. 17, 1994) and concluded that the change in COLA legislation applied to claims arising before October 1, 1991. The CRB in that decision relied heavily on an earlier memo issued by the then Chairman of the Workers’ Compensation Commission, Chairman John Arcudi,2 which memo was appended to the October 7, 1992 Finding and Dismissal by the trial commissioner as the basis for concluding that the percentage based calculation of COLAs was permissible.

In Taylor, the claimant-appellant argued that the legislative change to §31-307a(a) was an impermissible retroactive application of the statute. The Taylor panel disagreed. While I do not wish to be unduly repetitive as to that which was stated and relied on by the Taylor panel, I think the following reference to the reasoning contained in the former Chairman’s memo is worth repeating:

The former Chairman . . . 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.

Taylor, supra at 381.

Additionally, the Taylor panel appears to have been persuaded by the respondents-appellees’ reasoning that as the amendments resulting from Public Act 91-339 affecting COLAs only affected the method by which the COLA was calculated (i.e. the procedure utilized to determine the COLA and not a claimant’s entitlement to the COLA) the pertinent provisions of Public Act 91-339 could be characterized as procedural and not substantive, and thus, the amendments could be applied retroactively. Further persuading the CRB was the respondents’ argument that a COLA payment is an adjustment the calculation of which occurs after the date of injury. Therefore, the respondents’ reasoned, it cannot be viewed as vesting at the time of injury and thus, the statutory construction principle long governing Workers’ Compensation law, i.e., the law to be applied is the law at the date of injury, was not applicable. See, e.g., Iacomacci v. Trumbull, 209 Conn. 219 (1988)3.

Not at issue before the Taylor panel was the issue as to how the percentage calculation would be implemented. The Taylor panel did not consider whether a claimant accrued the earlier dollar amount payments and multiplied the percentage change rate times the base rate plus earlier COLA adjustments, or whether the percentage change was multiplied by the base rate and added to the earlier COLA adjustments, or whether the percentage COLA determination is merely multiplied by the base rate and no consideration is given for earlier COLAs paid. The method of implementing the percentage change calculation was set out by the CRB in Wolfe, supra.

In Wolfe, the CRB concluded that §31-307a did not permit reference to prior accumulating annual increments. The Wolfe panel held the COLA is based on an increase in “the base compensation rate at the time of the injury by the percentage of the increase in the maximum compensation rate.” The Wolfe panel also noted, “The statutory formula does not contemplate an increase based in part on prior COLAs, as those take place after the time of the injury. This language is unambiguous, and we do not have discretion to construe it otherwise.” (citation omitted). Wolfe at 128. Clearly stated in Wolfe is its reference and reliance on the CRB’s earlier decision in Taylor, supra. Wolfe cites Taylor as supporting the retroactive application of §31-307a as amended by Public Act 91-339. Thus, without Taylor, supra, the support upon which Wolfe rests is undone.

I understand that what we decide today effectively overturns this tribunal’s earlier decision in Taylor and Wolfe insofar as Wolfe applies to injuries arising before October, 1991. I do not believe we make this decision lightly and without concern that our ruling appears inconsistent with the stare decisis principle underpinning our jurisprudential system. However, as our Supreme Court stated in Herald Publishing Co. v. Bill, 142 Conn. 53, 62 (1955):

Stare decisis gives stability and continuity to our case law. This court, however, has recognized many times that there are exceptions to the rule of stare decisis . . . . Experience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better. The adaptability of the common law to the changing needs of passing time has been one of its most beneficent characteristics. A court, when once convinced that it is in error, is not compelled to follow precedent. (citations omitted)

Since this tribunal’s consideration of Taylor, supra and Wolfe, supra, this commission has become acutely aware of the inequitable hardships suffered by claimants as a result of these decisions. I understand that some of these results and hardships were impossible to predict by either those considering the legislative change at issue or the panel members considering Taylor, supra and Wolfe, supra. However, I cannot ignore the inequities imposed on claimants as a result of the statutory construction adopted by the Taylor panel and ratified by the Wolfe panel.4 As the majority noted, an awareness and cognizance of the broad humanitarian purpose which underpins our act compels the conclusion reached today.

I also believe that, as we have reversed the trier’s decision as we have, any payments made necessary by this opinion should be paid as soon as practicable.

1 We have vastly simplified the discussion and background to the legislative changes and CRB decisions which bring us to this point. For a more detailed discussion one may consult the CRB’s opinion in Wolfe, supra and Taylor, supra, Public Acts 91-339, 93-228 and §31-307a(a). BACK TO TEXT

2 See Taylor v. P.J. Ladola, Oct. 7, 1992 Finding and Dismissal, Exhibit C Memo To Self-Insureds, Insurance Carriers dated October 30, 1991. BACK TO TEXT

3 The CRB’s decision in Taylor was not appealed. BACK TO TEXT

4 It is worth noting that since the inequities of the COLA legislation as construed in Wolfe became apparent, the Chairman of this commission through various fiats has attempted to ameliorate the consequences of that decision. It should also be understood that the amount to which the claimant was entitled in Wolfe was determined by the trial commissioner to be $337.62 (the percentage calculation (2.5%) multiplied by the base rate ($303.39) plus prior applicable cost of living increases ($26.00) or, put another way 2.5% multiplied by 329.39. The appellant -insurance carrier in Wolfe argued that the claimant was entitled to $336.97(the percentage calculation (2.5%) multiplied by the base rate ($303.39) and then the addition of the prior COLA ($26.00). Under the Wolfe panel’s interpretation the claimant received $322.18. However, the result in Wolfe was applied to a claimant injured January 7, 1990. The dramatic and some say draconian effects of Wolfe only became apparent when the COLA determinations were made for those with long standing claims for temporary total benefits. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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