Opinion
Prior to 1959, there existed a fund, now known as the second injury and compensation assurance fund, from which workmen's compensation was payable for permanent total incapacity resulting from a second injury to an employee who had previously been permanently partially incapacitated. In 1959, the act providing for the fund was amended to direct that when an award of compensation "shall have been made" against an employer who is insolvent or who has failed to comply with the Workmen's Compensation Act or whose insurer is insolvent, the award is to be paid from the fund. Because of the failure of the plaintiff's employer to provide security for the payment of compensation as required by law, his failure to pay the compensation award in favor of the plaintiff, and the plaintiff's inability to obtain satisfaction from the employer's assets, the award qualified for payment from the fund unless the fact that the injury antedated the effective date of the 1959 amendment made the amendment inapplicable. Held: 1. The use of the future perfect tense in the quoted language shows a legislative intent to have the amendment apply to any case in which the compensation award was made after the effective date of the amendment. 2. Since the award in favor of the plaintiff was made after that date, and the amendment pertained only to the remedy by which the payment of compensation is assured, the amendment was applicable, and the plaintiff was entitled to look to the fund.
Argued October 5, 1962
Decided December 4, 1962
Appeal from the action of the workmen's compensation commissioner for the second district in denying the application of the plaintiff for an order that an award in his favor be paid by the state treasurer from the second injury and compensation assurance fund, brought to the Superior Court in Middlesex County and reserved by the court, Klau, J., for the advice of this court.
Norman Sivin, for the plaintiff.
Raymond J. Cannon, assistant attorney general, with whom, on the brief, was Albert L. Coles, attorney general, for the defendant state treasurer.
The Superior Court has reserved this case for our opinion under what is now General Statutes 31-324. In a pro forma ruling, the workmen's compensation commissioner for the second district determined that the plaintiff is not entitled to receive payment of an award of compensation from the second injury and compensation assurance fund, created by 1959 Public Act No. 580, 12, because his injury antedated the effective date of the act, though the award of compensation for the injury was made after that date. The parties have stipulated the facts.
The question of law involved in this matter is: Where the injury complained of occurred prior to October 1, 1959, the effective date of No. 580 of the 1959 Public Acts, and the award in favor of the injured employee was made subsequent to that date, may the provisions of 13 of the act (now, as amended, 31-355 of the General Statutes) be applied to the award so as to require the state treasurer to pay it?
The plaintiff, on July 1, 1959, sustained an injury to his right eye in the course of and arising out of his employment by the named defendant. The injury totally incapacitated him until September 2, 1959. Maximum improvement following the injury was reached on September 3. On January 15, 1960, the commissioner awarded the plaintiff compensation for temporary total incapacity, reimbursement for medical expenses, and specific compensation for loss of vision in the right eye. The award for specific compensation was commuted by the commissioner on February 5, 1960, to a lump sum. After the defendant employer was credited with certain partial payments which he had made to the plaintiff, the balance of the lump sum award plus medical expense reimbursement was $7682.90. On the date of the plaintiff's injury, his employer had not secured payment of workmen's compensation to his employees, as required by law. The plaintiff, on default in the payment of the award, obtained an execution, but it was returned unsatisfied on May 31, 1960. The plaintiff then applied to the commissioner for an order directing payment of the award by the state treasurer from the second injury and compensation assurance fund. The commissioner denied the application, pro forma, on the ground stated above.
Prior to the enactment of No. 580 of the 1959 Public Acts, there existed a fund, known as the second injury fund, which had been set up to pay compensation for permanent total incapacity resulting from a second injury to an employee who had previously been permanently partially incapacitated. General Statutes 31-216 — 31-221 (now, as amended, 31-349 — 31-354). By 12 of Public Act No. 580 (now, as amended, General Statutes 31-354), the title of the fund was changed to "second injury and compensation assurance fund." Section 13 of the act provided: "When an award of compensation shall have been made under the provisions of chapter 566 of the general statutes [the Workmen's Compensation Act] against an employer who has failed to comply with the provisions of said chapter or who is insolvent or whose insurer is insolvent, such payments shall be made and such compensation provided from the second injury and compensation assurance fund established in section 12." Section 13, as amended, is now 31-355 of the General Statutes.
The answer to the question reserved is to be found in the legislative intent as expressed in the phrase "[W]hen an award of compensation shall have been made." See Smith v. State, 138 Conn. 620, 623, 88 A.2d 117. "`Shall have been' is the future perfect tense, which represents an event as completed in future time." State v. Newark, 40 N.J.L. 92, 96. "The words `shall have been,' grammatically construed, relate to the future perfect tense, something which is to be done and perfected after the date of the enactment of the law in question." Seale v. Balsdon, 51 Cal.App. 677, 680, 197 P. 971. The use of the future perfect tense indicates that it was the intent of the legislature that 13 of Public Act No. 580 should apply to any case in which the award of compensation was made after October 1, 1959, the effective date of the act. See LoRusso v. Hill, 139 Conn. 554, 558, 95 A.2d 698. This interpretation is fortified by the many cases, from Powers v. Hotel Bond Co., 89 Conn. 143, 93 A. 245, through Acquarulo v. Botwinik Bros., Inc., 139 Conn. 684, 96 A.2d 752, which state that the Workmen's Compensation Act is remedial in character and is to be broadly construed to accomplish its humanitarian purpose. The right of the plaintiff to compensation became vested when he sustained his injury, and at that time the obligation of his employer to pay the compensation also became fixed. Preveslin v. Derby Ansonia Developing Co., 112 Conn. 129, 143, 151 A. 518. Section 13 of Public Act No. 580 did not affect either the right to compensation or the obligation to pay it. The section sought to assure, in cases in which the award was made after the effective date of the section, the payment of the award where the obligor had defaulted in his obligation. Therefore, the section did not affect the substantive rights of either the employer or the employee. It pertained only to the remedy by which the payment of compensation is assured. The legislature may regulate the remedy and the method of procedure under a past as well as a future contract, but it cannot impose new restrictions upon the enforcement of a past contract so as materially to lessen its value and benefit to either party. Preveslin v. Derby Ansonia Developing Co., supra. Section 13 is in keeping with the underlying principle of such legislation, which is that the ends of justice and equity will best be subserved, and the general good promoted, by lifting from the shoulders of unfortunate victims of industrial mishaps the burden which an employer has illegally avoided and shifting it to industry and, eventually, the public at large. See Piccinim v. Connecticut Light Power Co., 93 Conn. 423, 428, 106 A. 330.