Wagner v. New Milford Medical Group

The parties in this case waived oral argument. Notice sent to the claimant’s representative, Kenneth Taylor, Esq., Guendelsberger & Taylor, 28 Park Lane, New Milford, CT 06776.

Notice sent to the respondents’ representative, Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Road, Glastonbury, CT 06033.

Notice sent to the Second Injury Fund’s representative, Michelle Truglia, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

These Petitions for Review from the July 22, 2002 Finding and Award of the Commissioner acting for the Seventh District were heard January 24, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy A. Brouillet and Howard M. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. Both the respondents and the Second Injury Fund have petitioned for review from the July 22, 2002 Finding and Award of the Commissioner acting for the Seventh District, while the claimant has petitioned for review from an Amended Finding and Award dated August 16, 2002. Each challenges a different aspect of the trier’s decision. As the Amended Finding and Award is consistent with our Supreme Court’s ruling in Hasselt v. Lufthansa German Airlines, 262 Conn. 416 (2003), and correctly calculates the COLAs due the claimant, we affirm that decision.

In the July 22, 2002 award, the trial commissioner found that the claimant’s December 20, 1995 compensable injury had resulted in more than five years of continuous total disability, thereby entitling her to cost-of-living adjustments (COLAs) under § 31-307a(c).1 The claimant contended that she was entitled to COLAs from the date of her injury to the present and continuing, while the respondent insurer maintained that COLA payments should commence on the fifth anniversary of her injury and continue forward from that point, with no retroactive payment due for the initial five years of total disability. The Fund, meanwhile, argued that it was only liable for COLAs payable from the date of injury through September 30, 1997. The trial commissioner accepted the claimant’s position, and ordered the Fund to reimburse the insurer for COLAs payable through the present day and continuing.

To calculate the COLAs due and owing the claimant, the trier divided the maximum weekly wage at the time of the March 14, 2002 formal hearing ($887) by the maximum in effect on the date of injury ($656), multiplied that percentage (.3545) by the claimant’s base rate ($382.37) to obtain a COLA figure ($133.83), and then multiplied the $133.83 figure by the number of weeks since the date of injury (324) to get a figure of $43,460.75. Both the respondent insurer and the Fund filed appeals from the July 2002 decision. The trier then granted the Fund’s Motion to Correct with regard to the proper COLA calculation method, and replaced his blanket application of a $133.83 COLA figure for every week since the December 20, 1995 date of injury with a graduated COLA calculation that implemented different COLA percentages and figures for each year beginning on October 1, 1996, multiplied those figures by the base rate payable weekly through September 30 of the following year, and added the resulting amounts together to reach a lump sum of $18,512.18. This amount was reflected in an Amended Finding and Award of August 16, 2002, from which ruling the claimant has also taken an appeal.

The Second Injury Fund’s argument is that Public Act 97-205, § 4 was only intended to impose liability on the Fund for COLAs payable for dates between July 1, 1993 and October 1, 1997. That position has been refuted by our Supreme Court’s decision in Hasselt, supra, which rejected the notion that insurers retain responsibility for COLAs payable after October 1, 1997 under § 31-307a(c). The Court held instead that that the Fund is liable to reimburse insurance carriers or employers for all COLAs payable for injuries occurring between July 1, 1993 and October 1, 1997, regardless of the calendar date of the disability period to which the COLAs correspond. Essentially, the “date of injury” rule was cited as the sole basis for determining whether the Fund is liable to reimburse an insurer for all COLAs payable thenceforth on a particular total disability claim. Id., 421. As Hasselt controls on this issue, we affirm the trier’s legal conclusion as to the extent of Fund liability.

The respondent insurer argues that § 31-307a(c) does not entitle a claimant to retroactive payment of COLAs for the first five years of total disability. Instead, the respondent maintains that COLAs were not payable until December 20, 2000, whereupon the weekly benefit amount would be recalculated as if COLAs had been paid all along. We disagree with this position. The terms of § 31-307a(c) clearly state that an employee who is totally incapacitated for five years or more is entitled to have his benefit recalculated to the end of such five-year period “as if such benefits had been subject to recalculation annually under the provisions of this subsection. The difference between the amount of any benefits which would have been paid to such employee 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 . . . the end of such period . . . in a lump-sum payment.” (Emphasis added.)

This language specifically contemplates that the insurer shall pay the claimant in a lump sum the difference between the amount actually paid and the amount that would have been paid with COLAs, with the Fund being obligated to reimburse the insurer. No other meaningful construction of these words is possible. The claimant in Hasselt had predicated his COLA entitlement on having reached five years of temporary total disability, and the Court clearly framed the issue as whether the Fund had to pay COLAs that had accrued from the date of injury forward, or merely those COLAs payable between July 1, 1993 and October 1, 1997. Id., 421. The Court also stated that the Fund’s obligation to reimburse employers for “adjustments, including lump sum payments” distinctly imposes liability for both retroactive and prospective COLAs. “It is clear under this compensation scheme that those lump sum payments are equivalent to retroactive COLA payments, a point which the fund seems to concede.” Id., 425. Given the suppositions that the Court made in its discussion and in its decision, no logical reading of Hasselt is possible that does not contemplate retroactive COLA liability to the beginning of the five-year period. We thus affirm the trier’s legal conclusion on the COLA payment retroactivity issue.

The claimant contends on appeal that the trier should not have granted the Fund’s Motion to Correct, thereby reducing the COLA award from $43,460.75 to $18,512.18. (In point of fact, the claimant cites a figure of $43,924.68 in her brief.) She argues that the corrected award is more complex than called for by § 31-307a(c), and that the year-by-year basis for calculating retroactive COLAs falsely assumes that the claimant was paid in a timely manner. “It makes no sense to require a claimant to wait five years to collect a COLA and require that COLA be based on an award that the claimant would have received if paid in year one. . . . [T]he claimant did not receive any COLAs over that five year period and [the larger] payment would make her whole for an increase in benefits over the previous five year period of time.” Brief, p. 7.

The claimant’s position overlooks the plain language of § 31-307a(c), which, as noted above, requires the payment of “the difference between the amount of any benefits which would have been paid to such employee 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.” (Emphasis added.) If the claimant’s benefits had been subject to recalculation during the five-year total disability period prior to December 20, 2000, she would have received the following: her base rate of $382.37 through September 30, 1996; a 3.35% COLA adjustment added onto her base rate between October 1, 1996 and September 30, 1997, resulting in a 395.18 weekly compensation rate; an 8.99 percent COLA adjustment added onto her base rate as of October 1, 1997, for a weekly compensation rate of $416.75; a 16.46 COLA adjustment as of October 1, 1998 ($445.31); a 20.73 adjustment as of October 1, 1999 ($461.64); a 27.74% adjustment as of October 1, 2000 ($488.44); and a 35.21% adjustment as of October 1, 2001, resulting in a $517.00 weekly compensation rate from that point through the formal hearing date. Our calculations are identical2 to the figures adopted by the trier in his Amended Finding and Award. As we are confident in our interpretation of § 31-307a(c), we affirm the trier’s COLA award of $18,512.18, and dismiss the claimant’s appeal.

The trial commissioner’s decision is accordingly affirmed on all grounds.

Commissioners Nancy A. Brouillet and Howard M. Belkin concur.

1 Section 31-307a(c) provides, “On and after October 1, 1997, 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 July 1, 1993, which totally incapacitates the employee permanently, shall be adjusted as provided in this subsection as of October 1, 1997, or the October first following the injury date, whichever is later, and annually on 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 injury under section 31-309. If the maximum weekly compensation rate, as determined under the provisions of said section 31-309, to be effective as of any October first following the date of the injury, is greater than the maximum weekly compensation rate prevailing as of the date of injury, the weekly compensation rate which the injured employee was entitled to receive as of the date of injury shall be increased by the percentage of the increase in the maximum weekly compensation rate required by the provisions of said section 31-309 from the date of the injury to such October first. The cost-of-living adjustments provided under this subdivision shall be paid by the employer without any order or award from the commissioner. The adjustments shall apply to each payment made in the next succeeding twelve-month period commencing with October 1, 1997, or the October first next succeeding the date of injury, whichever is later. With respect to any employee receiving benefits on October 1, 1997, with respect to any such injury occurring on or after July 1, 1993, and before October 1, 1997, or with respect to any employee who was adjudicated to be totally incapacitated permanently subsequent to the date of his injury or is totally incapacitated permanently due to the fact that the employee has been totally incapacitated by such an injury for a period of five years or more, such benefit shall be recalculated to October 1, 1997, to the date of such adjudication or to the end of such five-year period, as the case may be, as if such benefits had been subject to recalculation annually under the provisions of this subsection. The difference between the amount of any benefits which would have been paid to such employee 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, or thirty days after such adjudication or the end of such period, as the case may be, 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 subsection for 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.” BACK TO TEXT

2 The figures are virtually identical. The trier uniformly rounded his COLAs down to the nearest whole cent, while we rounded up for decimal figures of .5 or higher. Thus, our first five COLA adjustments credit the claimant with a penny more per week than did the trier. For those calculating independently, any discrepancy in figures would be due to that minuscule difference. BACK TO TEXT