Opinion
CASE NO. 351 CRD-4-84
NOVEMBER 23, 1987
Claimant was represented by Serge G. Mihaly, Esq., and Bruce Levin, Esq.
Respondents were represented by Robert D. McGann, Esq.
The Second Injury Fund was represented at the trial level only by Ralph Russo, Esq., and Jane Comerford, Esq., Assistant Attorneys General. No appearance was made at oral argument.
This Petition for Review from the October 10, 1984 Finding and Award of the Commissioner for the Fourth District was heard September 20, 1985 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Paul Berte and Andrew P. Denuzze.
FINDING AND AWARD
The Fourth District Commissioner's October 10, 1984 Finding and Award is affirmed and adopted as the Finding and Award of this Division.
OPINION
Claimant's husband suffered a compensable heart attack on February 19, 1974 and was paid compensation benefits until his death December 30, 1981. The Fourth District's October 10, 1984 Finding and Award ruled that death was causally connected to the February 19, 1974 injury and awarded the claimant-widow weekly benefits as provided in Sec. 31-306 C.G.S. to commence November 7, 1989, seven years, ten months and nine days from the date of decedent's death.
The basis for the delay in payment to claimant was Sec. 31-306(i) C.G.S. as it existed on February 19, 1974 before the 1978 amendment, Public Act 78-369, which eliminated the waiting period for those entitled to death benefits. The law applied by the Fourth District Commissioner was that in effect at the time of injury, Rossi v. Thomas F. Jackson Co., 120 Conn. 456 (1935); Panico v. Sperry Engineering Co., 113 Conn. 707 (1931); Quilty v. Connecticut Co., 96 Conn. 124 (1921).
Sec. 31-306(i) Connecticut General Statutes (1973) provided, "(i) If death occurs later than two years from the date of injury or the first manifestation of a symptom of the occupational disease, the period for which compensation shall be due hereunder shall be reduced by the period for which compensation payments have been made to the deceased employee on account of such injury or occupational disease."
Appellants argue that the law at date of death, December 30, 1981, not that of the date of injury should govern. Thus, the issue upon which we must focus is whether the amended statutory scheme of Sec. 31-306 could be retroactively applied to the claimant's claim. Claimant argues further that Sec. 31-306 as amended by Public Act 78-369 was intended to and should operate retrospectively. But general rule of statutory construction is that a law is to operate prospectively absent a clear legislative intent, McAdams v. Barbieri, 143 Conn. 405 (1956). Sec. 55-3 C.G.S seems so to state, Schieffelin Co. v. Department of Liquor Control, 194 Conn. 165 (1984).
Sec. 55-3, C.G.S. Limitation of effect of certain acts. No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect.
The legislative history of Public Act 78-369 reveals that it was passed to remedy a defect which the legislature perceived existed in Sec. 31-306(i). Its intent was to remove the waiting period which existed under Sec. 31-306(i) for all future surviving spouses.
Claimant contends that because Public Act 78-369 may be characterized as remedial and because it does not affect any vested or substantive rights it may be applied retrospectively. The further argument is that the surviving spouse benefits did not vest until the decedent's death in 1981, after 78-369 was effective.
The leading case in Connecticut to address retrospective application of a statute in Workers' Compensation is Preveslin v. Derby Ansonia Developing Co., 112 Conn. 129 (1930). Preveslin held that the applicable compensation rate to be paid to a claimant was that permitted under the 1919 law and not the newer 1927 legislation. Chief Justice Wheeler stated:
"The compensation under the Act of 1919 was substantially less than that under the Act of 1927, the later one being to the pecuniary disadvantage of the defendant. The validation of the Act of 1927 if effectual would thus increase the amount the defendant would be required to pay over that required by the Act of 1919. The defendant's right of defense, which affected its substantial interests, became fixed in present enjoyment and available to the defendant under the statute in effect at the time of the injury and definitely ascertained upon the determination of the McCook case [State v. McCook, 109 Conn. 621 (1929)]. It was a property right which vested in the defendant and for whose protection against legislative invasion in the form of a validating act or otherwise it could rely on Article First of our State Constitution and upon the Fourteenth Amendment of the Federal Constitution."
Preveslin, supra, at 141.
Thus, the court concluded that a retrospective application of the 1927 statute would impermissibly impair the obligation of contracts.
A critical question here is whether or not claimant's rights to death benefits vested prior to the enactment of 78-369. A Connecticut precedent in point is Quilty v. Connecticut Co., 96 Conn. 124 (1921). Quilty court, relying on Schmidt v. O.K. Baking Co., 90 Conn. 217 (1916), held:
"The obligations of the employer to dependents of an employee in case of the death of an injured employee are equally substantive obligations, and are also fixed and determined by the statute in force at the time of the injury. The [a]ct . . . clearly does not relate to procedure merely, but affects substantive rights and obligations."
Quilty, supra, at 127 (1921).
The statute and cases cited bind us to conclude that the trial Commissioner was correct. Judgment affirmed.
Commissioners A. Paul Berte and Andrew P. Denuzze concur.