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CASE NO. 3610 CRB-08-97-05
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 20, 1998
Estate of WILLIAM MEYER and MAE MEYER, Executrix of the Estate of WILLIAM MEYER
RAYBESTOS PRODUCTS CO.
SECOND INJURY FUND
The claimant was represented by Nathan Shafner, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge Street, P. O. Drawer 929, Groton, CT 06340.
The respondents were not represented at oral argument. Notice sent to Cotter, Cotter & Sohon, 500 Boston Post Road, Milford, CT 06460.
The Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the April 25, 1997 Finding and Award of the Commissioner acting for the Eighth District was heard January 9, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.
JESSE M. FRANKL, CHAIRMAN. The Second Injury Fund has petitioned for review from the April 25, 1997 Finding and Award of the Commissioner acting for the Eighth District. The Fund argues on appeal that the trier erred by ordering it to pay cost-of-living adjustments (COLAs) to the claimant that spanned changes in the maximum weekly wage for the time period 1980-1990. We affirm the trier’s decision.
The trial commissioner found that the claimant sustained a compensable lung injury on December 17, 1980, pursuant to a previous Finding and Award. The claimant began receiving permanent partial disability benefits for a 75% impairment of the lungs on November 27, 1985, the date he reached maximum medical improvement. His compensation rate was found to be $285.00, the maximum in effect on the date of his injury. The respondent employer began paying the claimant temporary total disability benefits as of December 15, 1990. The only issue before the trial commissioner was the appropriate method of calculating the claimant’s COLAs.
The trier found that the date of injury is controlling for purposes of establishing when COLAs should begin. He ruled that the claimant was entitled to receive accrued COLAs retroactive to the December 17, 1980 date of injury, which were to be paid by the Fund and added to the $285 base compensation rate beginning on December 15, 1990, the date the claimant became totally disabled. He cited Gil v. Courthouse One, 239 Conn. 676 (1997), as controlling case law. The Fund has appealed his decision.
The statutes concerning cost-of-living adjustments were most recently amended on July 1, 1998. These amendments have an immediate effect, so we will address the updated version of § 31-307a in our decision. The subsection relevant to this case is § 31-307a(a), which provides in pertinent part:
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 and before July 1, 1993, 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 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 or October 1, 1990, whichever is later, 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 or October 1, 1990, whichever is later, to such October first.
This revision required recalculation of all benefits to the July 1, 1998 effective date of the amendment. P.A. 98-104, § 4. Prior to the effective date of this amendment, COLAs were calculated in accordance with our Supreme Court’s decision in Gil, supra, which controls the duration of the award implicated by the trier’s decision.
The versions of § 31-307a in question have much in common. In fact, the only difference in the above-quoted language is the addition of the two phrases that read “or October 1, 1990, whichever is later.” Significantly, all versions of § 31-307a since its enactment in 1969 have provided that in order to calculate a COLA, one must compare “the maximum weekly compensation rate prevailing as of the date of injury” with “the maximum weekly compensation rate . . . effective as of any October first following the date of injury.” Despite the Second Injury Fund’s arguments, the COLA statute does not provide for an alternate method of calculating COLAs based upon the date of actual disability. Indeed, such a method of determining COLAs would be impossible to implement unless the claimant’s maximum weekly wage was also held to be the figure prevailing as of the date of disability. That is clearly not the case under § 31-309, which looks at “the year in which the injury occurred.”
Moreover, our Supreme Court has expressly disavowed the dicta regarding economic loss in Mulligan v. F. S. Electric, 231 Conn. 529, 541 (1994), which the Fund relied upon in making its argument. See Doe v. Stamford, 241 Conn. 692, 701 (1997); Williams v. Best Cleaners, Inc., 237 Conn. 490, 492-93 (1996). Thus, the Fund’s argument concerning Green v. General Dynamics Corp., 245 Conn. 66 (1998)—which in itself holds that a claimant may collect benefits despite having ceased working sometime before the first manifestation of an occupational disease—is obviated.
The language of § 31-307a is not ambiguous. See Gil, supra; Belanger v. American Optical, 3353 CRB-1-96-5 (Jan. 22, 1998). The claimant’s entitlement to COLAs may not have begun until 1990, but the method of calculating those COLAs expressly requires a comparison between the maximum weekly wage on the date of his injury with the maximum weekly wage applicable to the year in which he is currently entitled to benefits. There is no other way to calculate COLAs under the Workers’ Compensation Act. Thus, the trier correctly ruled that the claimant was entitled to receive accrued COLAs retroactive to the December 17, 1980 date of injury and added to the base compensation rate beginning on December 15, 1990. In addition, any total disability or dependent death benefits payable after July 1, 1998 should be adjusted pursuant to the formula in P.A. 98-104 cited above, or the similar formula found in § 31-306(a)(2).
The trial commissioner’s decision is affirmed. Insofar as benefits have not been paid to the claimant, interest is awarded pursuant to § 31-301c(b).
Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.
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