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Coley v. Camden Associates, Inc. and Coastal Energy

CASE NO. 3432 CRB-2-96-9



FEBRUARY 28, 1997























The claimant was represented by Albert Harper, Esq., and Mark A. Rosenthal, Esq., 21 Oak St., Suite 301, Hartford, CT 06106.

The respondent employers were not represented at oral argument. Notice sent to Thomas J. Hagarty, Jr., Esq., Halloran & Sage, One Goodwin Square, Hartford, CT 06103.

The respondent Eastern Casualty Insurance Co. was represented by William C. Brown, Esq., McGann, Bartlett & Brown, 281 Hartford Tpke., Vernon, CT 06066.

The respondent Liberty Mutual Insurance Co. was not represented at oral argument. Notice sent to Nancy Rosenbaum, Esq., 655 Winding Brook Road, P. O. Box 695, Glastonbury, CT 06033.

The Second Injury Fund was represented by Michelle Truglia, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the October 22, 1996 Finding and Award of the Commissioner acting for the Second District was heard January 24, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.


JESSE M. FRANKL, CHAIRMAN. The Second Injury Fund has petitioned for review from the October 22, 1996 Finding and Award of the Commissioner acting for the Second District. On appeal, the Fund argues that the commissioner erred by ordering it to assume liability for the claimant’s June 30, 1995 injury pursuant to § 31-301(f), in light of a July 1, 1995 amendment to the law that repealed the language creating Fund liability for payment of unpaid awards in cases pending on appeal. We affirm the trial commissioner’s decision.

The claimant was exposed to toxic fumes during the course of his employment on June 30, 1995, and suffered carbon monoxide poisoning as a result. He requires further treatment, testing and training before he may return to work, as he suffers from physical and psychological disabilities because of his accident. The trial commissioner ordered that the employers and the insurer Eastern Casualty Insurance Co. pay the claimant temporary total disability benefits from July 1, 1995 through the formal hearing date of July 12, 1996, along with 10% interest due to their unreasonable delay in paying benefits. He also ordered that the claimant’s medical bills and attorney’s fee be paid.

As of today, however, the claimant has yet to receive any compensation for his injury. This is because the respondents have appealed the commissioner’s decision, with the employers challenging the extent of the claimant’s disability and the liable insurer questioning the existence of a valid workers’ compensation insurance contract at the time of the injury. Neither has seen fit to pay benefits pending appeal. When the claimant moved for immediate payment of the award, the Second Injury Fund objected to its potential liability under § 31-301(f), arguing that Public Act 95-277 amended that statute to state that the Fund is no longer responsible for the payment of benefits pending an appeal as of July 1, 1995. Thus, liability for the award should remain with the employers and the insurer.

On October 22, 1996, another commissioner reviewed the proceedings and the argument concerning payment pending appeal. He ruled that § 55-3 C.G.S.1 prohibits new legislation such as P.A. 95-277 from having a retrospective effect, and that the law on the date of injury controls this case. Thus, he ordered the Fund to pay the benefits awarded in the Finding and Award. He also expressed his concern that the parties not lose sight of the fact that the claimant sustained a compensable injury, and that he should not suffer because of the various respondents’ disagreement over who should pay benefits. The Fund appealed the commissioner’s decision to this board. As noted above, the claimant has yet to receive any compensation in this case.

At the time of the claimant’s June 30, 1995 injury, § 31-301(f) stated:

During the pendency of any appeal of an award made pursuant to this chapter, the claimant shall receive all compensation and medical treatment payable under the terms of the award to the extent the compensation and medical treatment are not being paid by any health insurer or by any insurer or employer who has been ordered, pursuant to the provisions of subsection (a) of this section, to pay a portion of the award. The compensation and medical treatment shall be paid from the Second Injury Fund pursuant to section 31-354.

The very next day, P.A. 95-277 went into effect. Among its many provisions was an amendment of § 31-301(f) that replaced the words “from the Second Injury Fund pursuant to section 31-354” with “by the employer or its insurer.” Thus, the Fund would no longer be responsible for covering unpaid awards pending appeal. Along with that change, the employer or insurer who paid the award pending appeal would be entitled to ten percent interest from the claimant on any amount paid on behalf of an award that was ultimately reversed. (The Fund had been entitled to similar protection previously.)

Generally, legislation is not construed to apply retroactively unless the legislature clearly expresses such an intent. Sherry H. v. Probate Court, 177 Conn. 93, 100 (1979); Lavieri v. Ulysses, 149 Conn. 396, 401 (1962); see also § 1-1(u) C.G.S. (“The passage or repeal of an act shall not affect any action then pending”); § 55-3 C.G.S. (statute imposing new obligation on person or corporation shall not have retrospective effect). This rule applies to statutes that effect substantive changes in the law. Rice v. Vermilyn Brown, Inc., 232 Conn. 780, 786 (1995); Sherry H., supra. It is not normally applied to legislation that is general in its terms and only affects procedural matters. Schurgast v. Schumann, 156 Conn. 471, 487 (1968); Lavieri, supra. However, this would not include a statute that, “though in form providing but a change in remedy, actually brings about changes in substantive rights.” Sherry H., supra, 101.

In workers’ compensation matters, the operative date that the parties’ obligations and rights are fixed is the date of injury, unless legislation specifies otherwise. Civardi v. Norwich, 231 Conn. 287 n.8 (1994); Iacomacci v. Trumbull, 209 Conn. 219, 222 (1988). Consistent with the exception for procedural matters mentioned above, our Supreme Court has held that the method of appeal from the trial commissioner’s decision is not controlled by the statute in effect on the date of injury. Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 650 (1975). In Chieppo, the claimant was injured prior to September 1, 1972, but filed his appeal after that date, which is when the legislature switched appellate jurisdiction in workers’ compensation matters from the Superior Court to the Court of Common Pleas pursuant to § 31-301 C.G.S. Because the focus of § 31-301 is on the duties of the commissioner and the proper court of appeal rather than the rights and obligations of the parties, the Supreme Court held that the change affected neither the employee’s right to collect compensation nor the employer’s obligation to pay it. Id., 650. Thus, the appeal was made to the wrong court.

In Annechiarico v. Friendly Ice Cream Co., 6 Conn. Workers’ Comp. Rev. Op. 18, 640 CRD-7-87 (Sept. 16, 1988), this board relied on Chieppo and Schurgast, supra, in holding that the then-new provision requiring the Fund to pay benefits pending appeal applied to injuries prior to its October 1, 1986 effective date. Ironically, the Fund argued there that the statute created a substantive obligation, and could only apply prospectively. Annechiarico, supra, 20. This board countered that the statute “obligating the Second Injury Fund to pay benefits merely ‘accelerates’ the delivery of the remedy to which the claimant may be entitled. It does not create a new substantive obligation on the part of the respondent as the money must be repaid to the Second Injury Fund if the respondents ultimately prevail.” Id., 20-21, citing Schurgast, supra, 487. Now, of course, the Fund contends that Annechiarico works in its favor, as it is no longer liable under § 31-301(f).

This argument has an obvious logic to it, and would likely make sense if a different statute were underlying the issue at bar. However, this case is about a provision of the Workers’ Compensation Act that provides relief to claimants due benefits that have not been paid by certain responsible parties pending appeal. Workers’ compensation legislation is remedial in nature, and should be broadly construed to accomplish its humanitarian purpose. Dubois v. General Dynamics Corp., 222 Conn. 62, 67 (1992). Where a particular interpretation of a statute would combat that purpose, this board has often favored a more equitable construction of the law. Trankovich v. Frenish, Inc., 3053 CRB-3-95-4 (decided Jan. 3, 1997); see also Valentino v. United Parcel Service, 13 Conn. Workers’ Comp. Rev. Op. 142, 144-45, 1907 CRB-4-93-11 (Feb. 1, 1995). Thus, we hearken to the words of our Supreme Court in considering whether statutory changes affecting only remedies are automatically procedural: changes of form are often closely tied to changes of substance, and the solution must ultimately be found in considerations of good sense and justice. Lavieri, supra, 401-02, citing E.M. Loew’s Enterprises, Inc. v. International Alliance of Theatrical Stage Employees, 127 Conn. 415, 418 (1941).

Here, good sense and justice do not favor a determination that the legislative change to § 31-301(f) would merely be a procedural matter. In Annechiarico, supra, it made sense to apply the statute retroactively because the claimant’s receipt of benefits would be speedier with it in effect, thus fulfilling the humane spirit of the Act, without creating a permanent obligation on the part of the Fund. (Indeed, the Fund would be entitled to interest upon reimbursement of benefits paid regardless of which side won on appeal, thus ultimately receiving more than it paid out.)

However, now that § 31-301(f) has been revised to remove the Fund’s layer of protection, the claimant has been put back in a situation where he is more likely to receive no benefits until the appeal in his case is resolved. As the unfortunate facts of this particular matter indicate, this really happens, especially where each respondent believes that it has an extremely good reason for contesting liability. Nonpayment of benefits certainly has a substantive effect on the claimant’s ability to collect compensation, and threatens to undermine the whole point of the workers’ compensation system. In fact, there is probably no result less consistent with the purpose of the Act than a claimant who has been awarded benefits not receiving them quickly because of a respondent’s inability or refusal to pay. The detriment to a claimant in such a case is clear, and this board will not interpret the legislative change to § 31-301(f) to be effective in a broader range of cases than is required by the express language of the statute. This does not conflict with the established principle that payment from the Fund shall be made only in accordance with express statutory authority; Going v. Cromwell Fire District, 159 Conn. 53, 61 (1970); as P.A. 95-277 by its terms did not go into effect until July 1, 1995.

We thereby conclude that the legislative change to § 31-301(f) in 1995 is likely to affect the substantive rights of at least some claimants, even though it concerns the proper remedy for nonpayment of benefits pending appeal. The trial commissioner’s decision to refer to the “date of injury” rule in applying that amendment is affirmed. In case the point has not been made clear, we also express our dismay at the parties’ apparent lack of concern for the claimant’s welfare, as evidenced by the failure of all involved to attempt even a nonprejudicial payment of benefits. As our decision places such liability pending the outcome of the respondents’ appeal on the Fund, we expect that compensation will be made commencing promptly.

Commissioners James J. Metro and John A. Mastropietro concur.

1 Section 55-3 C.G.S. provides that “[n]o provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect.” BACK TO TEXT

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