Cunningham v. Monroe Group

CASE NO. 4322 CRB-4-00-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 20, 2001

JAMES M. CUNNINGHAM

CLAIMANT-APPELLEE

v.

MONROE GROUP

EMPLOYER

and

AIG CLAIM SERVICES, INC.

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to William L. Cotter, Esq., Cotter, Cotter & Mullen, L.L.C., 457 Castle Avenue, Fairfield, CT 06432.

The respondents were represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The Second Injury Fund was represented by Richard R. Hine, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the December 6, 2000 Finding Re: 31-306(a)(2) of the Commissioner acting for the Fourth District was heard July 20, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The Second Injury Fund has petitioned for review from the December 6, 2000 Finding Re: 31-306(a)(2) of the Commissioner acting for the Fourth District. The Fund contends on appeal that the trier incorrectly ordered it to reimburse the respondents for all cost-of-living adjustments (COLAs) that it has paid to Chareice Cunningham, the dependent widow of the deceased claimant James Cunningham, and their two minor children. In accordance with our recent decision in Fiorillo v. Bridgeport, 4337 CRB-4-01-1 (Nov. 19, 2001), we affirm the ruling of the trial commissioner.

The parties have stipulated that the decedent was employed by the respondent Monroe Group, and that he performed more than 50% of his employment within the State of Connecticut. While on assignment in South Africa, he was killed in an automobile accident on March 23, 1997, that arose out of and in the course of his employment. His widow and two minor children are all presumptive dependents under Chapter 568, and thus qualify for benefits under § 31-306 C.G.S. Section 31-306(a)(2)(A) provides in part,

The weekly compensation rate of each dependent entitled to receive compensation under this section as a result of death arising from a compensable injury occurring on or after October 1, 1977, shall be adjusted annually as provided in this subdivision as of the following October first, and each subsequent October first, to provide the dependent with a cost-of-living adjustment in his weekly compensation rate as determined as of the date of the injury under section 31-309. . . . With respect to any dependent receiving benefits on October 1, 1997, with respect to any injury occurring on or after July 1, 1993 and before October 1, 1997, such benefit shall be recalculated to October 1, 1997, as if such benefits had been subject to recalculation annually under this subparagraph. The difference between the amount of any benefits which would have been paid to such dependent if such benefits had been subject to such recalculation and the actual amount of benefits paid during the period between such injury and such recalculation shall be paid to the dependent not later than December 1, 1997, in a lump-sum payment. The employer or his insurer shall be reimbursed by the Second Injury Fund, as provided in section 31-354, for adjustments, including lump-sum payments, payable under this subparagraph for deaths from compensable injuries occurring on or after July 1, 1993, and before October 1, 1997, upon presentation of any vouchers and information that the Treasurer shall require.

The Fund contended that any COLAs paid after October 1, 1997 were the responsibility of the employer, while the employer maintained that the statute required the Fund to accept liability for all COLAs payable on account of the instant claim, through the present time and continuing into the future. The trier agreed with the latter argument, and ordered the Fund to reimburse the respondents for COLAs paid to the claimant subsequent to October 1, 1997, as well as before. The Fund has appealed that ruling.

The language in dispute here is virtually identical in structure and meaning to the language of § 31-307a(c), which states that totally disabled claimants whose injuries occurred between July 1, 1993 and October 1, 1997, are entitled to COLAs from the employer or insurer retroactive to the date of injury, who shall then be reimbursed by the Fund for such adjustments or lump-sum payments. Each of these retroactive COLA provisions was added by Public Act No. 97-205, which was designed to restore COLAs to totally disabled claimants or the dependents of deceased employees who had been injured following the effective date of Public Act 93-228’s statutory elimination of COLAs. In Fiorillo, supra, we analyzed the language of § 31-307a(c), and concluded that both the plain language of the statute and the law prohibiting the retroactive imposition of new substantive obligations on any person or corporation demanded that the Fund reimburse the employer for all COLAs paid on account of injuries between July 1, 1993 and October 1, 1997. The same principles and analysis apply to the language of § 31-306(a)(2)(A) at issue here, and our holding is necessarily identical. The respondents must be reimbursed by the Fund for all COLAs paid to the dependents of the decedent on account of his fatal March 23, 1997 injury.

The trial commissioner’s ruling is hereby affirmed.

Commissioners Ernie R. Walker and Stephen B. Delaney concur.