CRB Case Annotations re: Section 31-307a

Claimant, a volunteer fire fighter and acting fire chief, challenged trial commissioner’s denial of disability benefits during time span for which medical reports demonstrated claimant was temporarily totally disabled. CRB affirmed trier’s denial of temporary total disability benefits, except for two brief periods following date of injury and subsequent surgery, noting that although claimant was unable to perform duties of volunteer fire fighter, he resumed administrative functions of fire chief shortly after both date of injury and surgery, allowing for reasonable inference that administrative functions carried out by claimant constituted employment situation tailored to claimant’s disability. CRB affirmed trier’s denial of temporary partial disability benefits in light of client’s testimony reflecting that he never attempted to look for alternate employment and was therefore not in compliance with statutory requirements for receipt of temporary partial disability benefits. CRB affirmed denial of Motion to Correct and Motion for Articulation. See also, Rowland, § 7-314a, § 31-301. Factual Findings. § 31-308a.

Claimant sought temporary total disability benefits and asserted as he was totally disabled for more than 260 weeks he was entitled to COLA’s. Trial commissioner incorporated that relief and respondent challenged award as not grounded in evidence. Subsequently parties submitted stipulation of facts delineating 265 weeks of total disability. CRB affirmed trial commissioner. Stipulation clarified issue and amounted to an admission by the respondents.

Commissioner dismissed claim for COLA benefits as claimant was not totally incapacitated for a single, continuous 5 year period. CRB reversed. Majority held § 31-307a(c) prerequisite 5 year period did not have to be comprised of a single, continuous 5 year period. Majority noted that statute was ambiguous, thus construction not limited to plain meaning. Intent of legislation and public policy served by construing statute as providing a COLA based on a threshold of accumulated periods equaling 5 years. Dissenting opinion suggested that the plain meaning requirements of statutory construction should not be abandoned and that competing objectives existed at the time of the Act’s passage.

Insurance carrier and Second Injury Fund disputed methodology for calculating reimbursement of COLA’s impacted by social security offset. Trial commissioner accepted carrier’s interpretation. SIF appealed. CRB upheld. Statute did not direct trial commissioner to calculate reimbursement in manner sought by SIF.

Claimant did not receive COLA adjustments for approximately 10 years. At that point, he received lump sum of unpaid COLA but pursued interest penalty against respondent. Trial Commissioner awarded interest for undue delay; COLA should have been provided without demand. CIGA, carrier for last five years of claim, appealed. CRB denied legal arguments CIGA advanced that were rejcted in Potvin v. Lincoln Service & Equipment, 5258 CRB-3-07-8 (November 12, 2008). rev’d 298 Conn. 620 (2010). However, CIGA could not be penalized for negligence attributable to prior carrier. Matter remanded to assess penalty rate of interest only for period CIGA administrated the file. See also, Riccitelli, § 31-300, § 31-355(e).

Claimant appealed denial of claim for temporary total disability benefits, on basis amendment of § 31-307a created new definition of “permanent total disability” for those receiving § 31-307 benefits for five years. CRB upheld trial commissioner, “plain meaning” of statute in question is clearly limited to calculation of cost-of-living benefits. Fiorillo v. City of Bridgeport, 4585 CRB-4-02-11 (December 17, 2003) reaffirmed on this issue. Case law requires claimants to continue to prove disability. Even if statute were to extend such new entitlement, claimant’s date of injury predates effective date of this statute and a statute granting a new substantive right cannot be applied retrospectively. See also, Russell, § 31-301. Factual findings, § 31-307, § 31-308a.

CRB affirmed trier’s ruling of overpayment on cost of living adjustments, explaining that P.A. 98-104 did not apply retroactively. See also, Vetre, § 31-278, § 31-298, § 31-300, § 31-301-9.

See, Gauthier, § 31-306 (plain error existed in calculation of COLA for dependent widow). See also, Gauthier, § 31-296. Voluntary agreements, (approval of), § 31-310.

In settlement of disputed total disability claim, respondents agreed to pay two-thirds of difference between TT rate and § 31-308a rate (if applicable) for the 29-month period in question. Trier found that this established total disability status for that period within meaning of § 31-307a. CRB reversed. Agreement did not constitute acceptance of disputed claim, based on language of stipulation. Trier erred by using that period as part of five-year total disability computation under § 31-307a. See also, Malz, § 31-296. Voluntary agreements (approval of), § 31-349, § 31-299b.

Fiorillo v. Bridgeport, 4585 CRB-4-02-11 (December 17, 2003), appeal dismissed for lack of a final judgment, A.C. 24991 (May 5, 2004).

Designation of claimant who has been totally disabled for five years or more as “totally incapacitated permanently” for purposes of § 31-307a(c) does not vest claimant with irrevocable permanent total disability status such as that contemplated by § 31-307(c). Five-year total disability category only exists for purposes of determining COLA eligibility. See also, Fiorillo, § 31-298, § 31-301. Factual findings, § 31-301-4, § 31-307. Prior decision at Fiorillo, 4337 CRB-4-01-1 (November 19, 2001), vacated, S.C. 16736 (December 16, 2002).

Matey v. Dember, 4488 CRB-7-02-2, 4532 CRB-5-02-5 (May 14, 2003), appeal dismissed for failure to comply with Supreme Court’s directive, 85 Conn. App. 198 (2004).

Modified commissioner’s calculation of claimant’s compensation rate with COLAs for the period of July 1, 1995 through December 31, 2001. See also, Matey, § 31-278, § 31-307, § 31-300, § 31-303. See, Matey v. Dember, 256 Conn. 456 (2004).

See, Yuille, § 31-301. Appeal procedure, § 31-307. Prior decision at Yuille, 3735 CRB-4-97-12 (June 10, 1998), § 31-301. Appeal procedure, § 31-301c, § 31-327.

CRB affirmed trier’s ruling that Fund is required to reimburse insurer for COLAs payable from date of December 20, 1995 injury forward, and affirmed ruling that COLAs are payable retroactively to start of five-year disability period. Board relied on Hasselt v. Lufthansa German Airlines, 262 Conn. 416 (2003), as controlling authority. As for proper method of calculating COLAs, trier correctly calculated COLAs using graduated method that implemented different percentages for each year forward from October 1, 1996, rather than applying the 2001 COLA percentage increase to all 324 weeks that had elapsed between injury date and last formal hearing.

Fund is required to reimburse employers for all COLAs paid on claims arising from injuries occurring between July 1, 1993 and October 1, 1997.

Fiorillo v. Bridgeport, 4337 CRB-4-01-1 (November 19, 2001), vacated, S.C. 16736 (December 16, 2002).

Section 31-307a(c) requires Second Injury Fund to reimburse employer for all adjustments paid on claims arising from injuries that occurred on or after July 1, 1993, and before October 1, 1997. Plain language of statute would be strained by any other reading, and “date of injury” rule precludes retroactive imposition of substantive obligations against persons or corporations. Supreme Court vacated commissioner’s finding and award, and by implication CRB decision as well, after parties to appeal agreed that award and stipulation of facts were based on incorrect assumption that claimant had reached five years of total disability, a prerequisite to eligibility for COLAs under § 31-307a(c). Subsequent decision at Fiorillo, 4585 CRB-4-02-11 (December 17, 2003), appeal dismissed for lack of a final judgment, A.C. 24991 (May 5, 2004).

See, Lizcano, § 31-296, Voluntary agreements (approval of), § 31-310 (COLAs available for concurrent employment benefits).

See, Herbert, § 5-142(a).

Trier properly ruled that claimant who was injured in 1980 but was not temporarily totally disabled until 1990 was entitled to COLAs covering changes in the maximum weekly wage rate from 1980 to the present. Section 31-307a refers only to the date of injury, and the statute is not ambiguous.

Czujak v. Bridgeport, 3535 CRB-4-97-2 (June 10, 1998), aff’d, 55 Conn. App. 789 (1999), cert. denied, 252 Conn. 920 (2000).

CRB discussed applicability of COLAs to § 7-433c benefits. See also, Czujak, § 7-433c, § 31-300, § 31-301. Appeal procedure, § 31-315. Subsequent decision at Czujak, 4371 CRB-4-01-3 (April 8, 2002), § 31-297, § 31-301(g).

Gil v. Courthouse One, 15 Conn. Workers’ Comp. Rev. Op. 227, 3278 CRB-6-96-3 (May 1, 1996), rev’d, 239 Conn. 676 (1997).

CRB reconsidered the issue of the calculation of Cost of Living Adjustments for persons injured prior to October 1, 1991. The CRB reexamined its earlier ruling in Taylor v. P.J. Ladola’s 12 Conn. Workers’ Comp. Rev. Op. 378, 1526 CRB-1-92-10 (August 17, 1994) and Wolfe v. JAB Enterprises, Inc., 14 Conn. Workers’ Comp. Rev. Op. 127, 1875 CRB-3-93-10 (June 5, 1995). The CRB concluded that Taylor wrongly concluded that the amendments affecting COLAs contained in P.A. 91-339, i.e., the calculation of the COLA based on a percentage amount and not a flat dollar amount, were procedural in nature and not substantive. The Supreme Court reversed the CRB and held that COLAs should be calculated based on the percentage of increase in the maximum compensation rate between the year for which the COLA is sought and the maximum compensation rate as of October 1, 1990. That amount should then be multiplied by the claimant’s base rate and added to the claimant’s COLA as of October 1, 1990.

Under 1991 change in statute from dollar amount increases to percentage-based increases, prior COLAs should not be included in the COLA determination for any given year. Statutory formula unambiguously requires base rate to be multiplied by the percentage difference between the maximum rates at the date of injury and in the present year, as demonstrated in the opinion. Change in method of calculation only applies prospectively. But see Gil v. Courthouse One, 239 Conn. 676 (1997).

Claimant suffered a compensable leg injury in 1980, and a disability to her back in 1988 because of an altered gait resulting from the first injury. Held, evidence supported decision that 1988 injury was not a recurrence, but was causally related to the first injury as in Hernandez v. Gerber Group, 222 Conn. 78 (1992). Because first injury compensable, employer liable for sequelae as well. Therefore, § 31-307a applies instead of § 31-307b, as the latter applies only to relapses or recurrences. Applicable compensation rate was 1980 wage, as claimant was unemployed at time of back injury. Section 31-307a entitled claimant to difference between 1980 maximum rate and 1988 maximum rate, as well as to COLAs accruing after that date. See also, Owens, § 31-300, and § 31-310.

Taylor v. P.J. Ladola’s, 12 Conn. Workers’ Comp. Rev. Op. 378, 1526 CRB-1-92-10 (August 17, 1994).

Annual cost of living adjustment (COLA) due to continued total disability as a result of traumatic injuries sustained from a fall occurring in July 1991 should be calculated by using percentage increase set out in P.A. 91-339. Discussion of former chairman, workers’ compensation commission’s reference to legislative intent.

CRB Case Annotations re: Section 31-307a

Cost of living adjustment.