State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Marone v. City of Waterbury

CASE NO. 3117 CRB-5-95-7



JANUARY 10, 1997









The claimant was represented by Robert Nicola, Esq., Owens, Schine & Nicola, P.C., P. O. Box 753, 799 Silver Lane, Trumbull, CT 06611.

The respondent was represented by James Moynihan, Esq., Assistant Corporation Counsel, City of Waterbury, 236 Grand St., Waterbury, CT 06702.

This Petition for Review from the July 12, 1995 Finding and Award of the Commissioner acting for the Fifth District was heard June 14, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.


JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the June 12, 1995 Finding and Award of the Commissioner acting for the Fifth District. He argues on appeal that the commissioner erred by not recalculating his § 7-433c C.G.S. benefits to take into account overtime paid to his fellow patrolmen between 1982 and 1990. We affirm the trial commissioner’s decision.

The claimant retired from police duty as a patrolman on April 15, 1982. He had begun receiving a disability pension from the respondent entitling him to $272.59 per week. On July 14, 1983, he was awarded benefits pursuant to § 7-433c for hypertension that was diagnosed on September 9, 1980. Section 7-433b(b) C.G.S. restricts the cumulative payments for compensation and retirement benefits under § 7-433c so that they “shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his . . . retirement.” At the time of the 1983 Finding and Award, the position of patrolman paid $391.00 per week, not including overtime. The claimant’s benefit rate was thus set at $391.00. No appeal was taken.

On April 17, 1990, our Supreme Court decided Szudora v. Fairfield, 214 Conn. 552 (1990). The court there affirmed this board’s decision that “weekly compensation” in § 7-433b(b) includes all forms of weekly remuneration, including overtime pay. In September of 1993, the respondent acknowledged that the claimant’s benefit cap should be adjusted to include overtime pay, and paid him the difference for the time period from April 17, 1990 to September 7, 1993. Subsequent payments have also reflected the adjusted Szudora cap.

The claimant then made a claim for the difference between the amount he actually received between April 15, 1982 and April 17, 1990, and the amount he would have received during that time had the Szudora method of calculation been in effect. The trial commissioner rejected his claim, finding that the claimant’s $391.00 per week pay rate had been settled several years before the Szudora decision, and was no longer at issue when that case was decided. He also filed an accompanying Memorandum of Decision noting the “potential inequities imposed upon municipalities by wholesale retrospective application of Szudora.” Thus, he declined to recalculate the claimant’s benefit rate to reflect the past overtime pay. The claimant has appealed that decision to this board.

The courts of this state have often discussed whether a statute should apply retroactively. See, e.g., Fulco v. Norwich Roman Catholic Diocesan Corp., 27 Conn. App. 800 (1992), appeal dismissed, 226 Conn. 404 (1993). The concluding provisions of our General Statutes are helpful in that regard, as § 55-3 prohibits the retrospective application of any statute imposing a new obligation on a person or corporation. See Darak v. Darak, 210 Conn. 462, 467 (1989); Fulco, supra, 803-04; Adams v. New Haven, 39 Conn. Sup. 321 (1983) (as § 7-433c took effect in 1971, it did not apply to a claimant who had a heart attack in 1969, settled his claim in 1970, and retired one month later). The issue here is somewhat different: the Szudora case was not new legislation, but a judicial interpretation of an extant law. The claimant argues that it is therefore like a legislative clarification, which would apply retrospectively. See State v. Magnano, 204 Conn. 259, 278-84 (1987); Lee v. Board of Education, 181 Conn. 69, 75-76 (1980).

The United States Supreme Court has said that the courts of each state are free to determine the extent to which their decisions have retrospective effect. Neyland v. Board of Education, 195 Conn. 174, 179 (1985), citing Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364 (1932). Our courts presume that judicial decisions generally apply retroactively. State v. Ryerson, 201 Conn. 333, 339 (1986); State v. Jackson, 32 Conn. App. 724, 731 n.6 (1993). However, our Supreme Court has looked at the test outlined in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), in situations where the retroactive application of a holding was deemed inadvisable. State v. Harrell, 199 Conn. 255, 267 (1986); compare Neyland, supra, 182 (Chevron Oil test is inapplicable to jurisdictional issues). The three relevant factors under the Chevron Oil test are whether the judicial decision establishes a new principle of law, either by overruling past precedent or deciding an issue of first impression; whether retrospective application of the law will further or retard its operation, in light of the purpose, effect, and history of the rule; and the degree of inequity imposed by retroactive application. Id., 106-107.

In his Memorandum of Decision, the commissioner cited the Chevron test, noting that retrospectively applying Szudora by recalculating the § 7-433b(b) “cap” would have a burdensome financial impact on municipalities and taxpayers in Connecticut, which would not be equitable. We agree with that analysis. Most cases in which retroactive application of an appellate decision is contemplated are cases in which proceedings are still pending in the instant case, but either the incident at the core of those proceedings or the trial court’s decision occurred before the release of the appellate body’s decision in the other case. See, e.g., State v. Jackson, supra (State v. Hart decision came before final judgment by Jackson trial court, so retroactive application was not truly at issue); Ryerson, supra (case was already on appeal to Supreme Court when State v. Fleming decision was released). However, once a case has become final, and no further appeal is possible, the parties are entitled to rely on the finality of that judgment absent very extraordinary circumstances.

As the commissioner noted in his decision, the claimant’s compensation rate was settled quite a few years before our Supreme Court decided Szudora. The city of Waterbury certainly would have relied on the $391.00 “cap” in determining the benefits payable to the claimant, and would have been justified in doing so. When the Szudora decision was released, a challenge to the cap as it applied to the claimant’s present and future benefits would have been perfectly acceptable, and cognizable by the trial commissioner. In fact, the claimant’s cap was adjusted from the date of the Szudora decision forward by agreement of the parties. What the claimant is seeking to do here, however, is reopen a portion of his case that has been long settled in order to adjust his past benefit rate. We do not believe that our legal system contemplates exhuming cases that are no longer pending as a corollary to the principle that judicial decisions generally apply retroactively. Therefore, we affirm the trial commissioner’s decision.

Commissioners George A. Waldron and Robin L. Wilson concur.

Workers’ Compensation Commission

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