Davis v. The Forman School

The claimant was represented by George B. Simoncelli, Jr., Esq., Muschell, Phalen & Simoncelli, 104 Church St., Torrington, CT 06790.

The respondent employer and Royal Insurance Co. were represented by Lawrence Pellett, Esq., Feeley, Nichols, Chase, McDermott & Pellett, P.C., 37 Leavenworth St., P.O. Box 2300, Waterbury, CT 06722.

This Petition for Review from the March 28, 1995 Finding and Award of the Commissioner acting for the Fifth District was heard January 26, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer and insurer (hereinafter “respondents”) have petitioned for review from the March 28, 1995 Finding and Award of the Commissioner acting for the Fifth District. In that decision the trial commissioner assessed a five thousand dollar penalty on the respondent Royal Insurance Company (“Royal”) for its failure to pay an approved stipulation within ten days. The trial commissioner issued the penalty pursuant to § 31-303, as amended by P.A. 93-228, §14. In support of its appeal, the respondent Royal contends that that the language of P.A. 93-228, §14 does not apply to the instant case and may not be applied retroactively.

The trial commissioner found the following relevant facts. The claimant filed a notice of claim on or about July 23, 1991 alleging that she suffered injuries during her employment from September 1, 1989 through May 17, 1991. On April 20, 1994, the trial commissioner approved a Stipulation for An Award by Agreement by which Royal agreed to pay $25,000.00 and Fireman’s Fund Insurance Company agreed to pay $15,000.00, and a copy of said stipulation was distributed to each party on April 20, 1994. On May 3, 1994 Royal issued a check for $25,000.00 made payable to the claimant’s attorney, and mailed it to Royal’s legal counsel which received it on May 6, 1994, where the claimant’s attorney picked up the check on that day. On May 11, 1994 the claimant requested penalties for Royal’s failure to pay within ten days. The trial commissioner ordered Royal to pay a twenty percent penalty pursuant to § 31-303 as amended by P.A. 93-228, §14.

We will first address the respondents’ contention that the penalty is “barred” by the language of the stipulation. We find the respondents’ argument that the language of the stipulation bars the imposition of a statutory penalty to be specious at best, as the stipulation itself states that “compliance with this agreement shall constitute a full, final, and complete settlement....” (Finding No. 10) (emphasis added). Specifically, the trial commissioner found that “(p)ursuant to the terms of the Stipulation for Award by Agreement there was no order, adjudication or award that such Agreement was a full and complete settlement accord and satisfaction of all claims until compliance with the agreement was accomplished.” (Finding A) (emphasis added). Moreover, the respondents misinterpret the trial commissioner’s decision in that they state that the trial commissioner abused his discretion by “reopening” the stipulation without the filing of a motion to reopen pursuant to § 31-315 C.G.S. To the contrary, the trial commissioner did not reopen the approved stipulation, but rather applied the statutorily mandated penalty in accordance with § 31-303 as amended by P.A. 93-228, §14.

At issue in this appeal is whether the penalty provision created by P.A. 93-228, §14 is applicable to a stipulation which was approved after the effective date of the legislation. Public Act 93-228, §14 which became effective July 1, 1993, added the twenty percent penalty provision to § 31-303. Section 31-303, as amended, provides:

The respondents contend that stipulations are not included in the language of § 31-303. Thus, they argue that the “Stipulation for an Award by Agreement” in the instant case is not covered under this section.

To the contrary, it has repeatedly been held that stipulations are included within the meaning of the term “voluntary agreement.” See Welch v. Arthur A. Fogarty, Inc., 157 Conn. 538, 542 (1969); Sugrue v. Champion, 128 Conn. 574, 578 (1942); Mongillo v. Terminal Taxi, Co., 12 Conn. Workers’ Comp. Rev. Op. 197, 199, 1455 CRB-3-92-7 (March 7, 1994). We have specifically stated, “A stipulation has the same binding effect as an award once it is approved by a commissioner.” Festa v. Hamden, 16 Conn. Workers’ Comp. Rev. Op. 46, 48, 3052 CRB-3-95-4 (Oct. 16, 1996). Our Supreme Court explained as follows:

The legislative history does not address the specific issue of whether the penalty provision created by P.A. 93-228, §14 applies to both voluntary agreements and stipulations. However, our Supreme Court has repeatedly stated, “In construing a statute, common sense must be used, and the courts will assume that the legislature intended to accomplish a reasonable and rational result.” Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36 (1996). Because stipulations have been included within the meaning of the term “voluntary agreement,” (see Welch, supra; Sugrue, supra; Mongillo, supra; see also Muldoon, supra) it is only reasonable to infer that the legislature intended1 to include stipulations within the meaning of voluntary agreement in P.A. 93-228, §14.

We will now address the respondents’ contention that P.A. 93-228, §14 applies only to injuries which have occurred after July 1, 1993, the effective date of the legislation. “The issue of retroactive application of a workers’ compensation statute is generally governed by the date of injury rule, which ‘functions as a presumption of legislative intent within the workers’ compensation context....’” Coley v. Camden Associates, Inc., 243 Conn. 311, 316 (1997) (citation omitted); see also Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282 (1997). The date of injury rule generally applies “only to those cases in which the legislation has affected a substantive right.” Id. at 317. In Coley, supra, the court addressed the question of whether a legislative change to § 31-301(f) should be applied retroactively. The court held that the legislative provision was procedural in nature because it “affects only ‘the remedy by which the payment of compensation is assured’ and is not substantive.” Id. at 318 (citations omitted). Similarly, the penalty provision in the instant case affects the remedy for late payments of benefits, and thus is procedural in nature. See fn. 1. supra.

We also find the reasoning in Peck v. Jacquemin, 196 Conn. 53 (1985) to be instructive. In Peck, the Supreme Court addressed a legislative change regarding the presentation of a civil case to the jury. The court explained that the legislation affected “only circumstances that may exist at the time of trial rather than those of the date of the accident.” Id. at 60. Therefore, the court reasoned that even if the legislation was substantive, “simply put, it is just not being applied retroactively.” Id. at 61. Moreover, the court explained that while a right of action for a personal injury is a vested property interest, the plaintiff “has no right to the payment of damages from the defendant(s) until entitlement to damages has been so adjudged after a trial to a jury or a court.” Id.

Applying the above analysis, in the instant case the claimant’s right to payment and the respondents’ obligation to pay did not arise until April 20, 1994, the date on which the trial commissioner approved the stipulation. Public Act 93-228, §14 had already become effective July 1, 1993, which was well before the approval date of the stipulation. Accordingly, at the time of the approval on April 20, 1994, it is reasonable to presume that the parties were aware of the new penalty provision. Indeed, in Kreidler v. Bic Pen Corporation, 16 Conn. App. 437, 442 (1988), the court stated:

As the stipulation in the instant case was approved after the effective date of P.A. 93-228, §14, the statutory penalty provided for by Public Act 93-228, §14 should be applied to the stipulation. See Kreidler, supra.

We conclude that the statutory penalty provided for by P.A. 93-228, §14 should be applied to stipulations approved after the effective date of the legislation. See Kreidler, supra; see also Peck, supra. We thus conclude that the five thousand dollar penalty imposed by the trial commissioner is proper pursuant to § 31-303 as that section existed at the time of the approval of the stipulation.

The trial commissioner’s decision is affirmed.

Commissioner George Waldron concurs.

ROBIN L. WILSON, COMMISSIONER. I respectfully dissent. In my opinion, § 31-303, as amended by P.A. 93-228, §14, does not apply to a stipulation. Rather, § 31-303 specifically refers only to a “voluntary agreement” or an “award.” The legislative history of P.A. 93-228, §14 does not address the issue of whether the penalty provision applies to stipulations. I agree with the majority’s statement, “In construing a statute, common sense must be used, and the courts will assume that the legislature intended to accomplish a reasonable and rational result.” Cummings, supra. However, in my opinion, the legislature’s failure to include a reference to stipulations indicates that it did not intend to include stipulations.

Our Supreme Court has “consistently stated that ‘[if] the language of the statute is clear and unambiguous, it is assumed that the words themselves express the intention of the legislature and there is no room for judicial construction.’” Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 395 (1993) (citations omitted). The court in Vaillancourt further stated, “We are not permitted to supply statutory language that the legislature may have chosen to omit.” Id. Indeed, under the doctrine of “inclusio unius alteruis” a specific “designation of one person is an absolute exclusion of all others.” Black’s Law Dictionary (5th Edition); see also Donahue v. City of Milford, 1 Conn. Workers’ Comp. Rev. Op. 200, 202, 92 CRD-3-81 (Nov. 1, 1982). In Donahue, the board, in interpreting legislation, explained that it must assume that the legislators had “sufficient linguistic sophistication” to add specific language to a statute, but simply chose not to add such language. Donahue, supra, at 202. The board, citing the doctrine of “inclusio unius alteruis,” found it significant that certain legislation referenced § 31-307 benefits but did not reference § 31-308 benefits. Id.

In the instant case, if the legislature had intended to include stipulations in § 31-303, it certainly could have done so. The legislature, however, chose only to include an award or a voluntary agreement. This choice, in my opinion, does not appear on its face to be arbitrary. Specifically, a significant distinction between a voluntary agreement and a stipulation is that a voluntary agreement indicates that the employer accepts liability for a claim, whereas a stipulation is usually a compromised agreement of a disputed claim. I find this distinction to be important, in that it is reasonable to infer that the legislature intended to impose the penalty for late payment only in cases where liability had been accepted, i.e. by a voluntary agreement, as opposed to a stipulation.

A further distinction between a voluntary agreement and a stipulation is that a stipulation constitutes a full and final resolution of a claim. Specifically, a “stipulation is a compromise and release type of settlement similar to settlements in civil personal injury cases where a claim is settled with a lump sum payment accompanied by a release of the adverse party from further liability....” Duni v. United Technologies Corp./ Pratt & Whitney Aircraft Division, 239 Conn. 19, 30-31 (1996). A stipulation, upon approval of a trial commissioner, bars a further claim for compensation unless the standards are met to support a motion to reopen pursuant to § 31-315. See Jaworski v. Four Seasons Limousine, 15 Conn. Workers’ Comp. Rev. Op. 438, 2200 CRB-7-94-11 (Sept. 5, 1996).

In conclusion, it appears that there are sufficient distinctions between a voluntary agreement and a stipulation to support the legislature’s decision to include only voluntary agreements under the penalty provision of § 31-303, as amended by P.A. 93-228, §14.

For the above reasons, I dissent.

1 It appears that the legislature added the twenty percent penalty with the intent to insure that payments would be made in a timely manner. The legislative history contains the following statement by Representative Lawlor:

In this bill, and this is one ingredient that I am especially happy is in the amendment we’re about to vote on. There is a 20% penalty for insurance companies or employers who make late payments of doctor bills or benefits for wage replacement after they have been ordered to be made by the workers’ comp commission or after they were part of a voluntary agreement by the employer.

In other words, there are many informal and formal hearings at the workers’ comp commission where insurance company lawyers or lawyers promise to make a payment within a few days, or who are ordered to make that payment. If they don’t make the payment and (sic) there are no effective penalties on the books today. This imposes a 20% penalty going directly to the claimant for those late payments, plus interest.