Attorney General's Opinion
Attorney General, Richard Blumenthal
September 22, 1993
The Honorable Jesse M. Frankl
Workers' Compensation Commission
1890 Dixwell Avenue
Hamden, CT 06514
Dear Chairman Frankl:
This is in response to your letter dated July 23, 1993, wherein you asked our opinion concerning the application of Public Act 93-288 (the Act) to cost of living adjustments (COLAs) for certain injured employees and their dependants. In your letter you indicate that "[a]pparently P.A. 93-228 eliminates COLAs for injuries occurring after July 1, 1993." You then state that "it appears that COLAs prior to July 1, 1993 should continue" for those receiving benefits before July 1, 1993. You specifically request us to advise you, assuming your analysis concerning COLAs is correct, as to what mechanism you should use to determine the COLA for October 1, 1993.
It is our opinion that the Act does eliminate COLAs for those injuries which occur on or after July 1, 1993, while preserving the COLAs for those injuries which occurred prior to that date. For those persons receiving the COLAs, the COLAs should be determined in the same manner they were determined under prior law.
Section 21 of the Act amends § 31-309, the statute which determines the maximum compensation rate for injured employees. Pertinent to your question is the language in §21 which states "the weekly compensation received by an injured employee whose injury occurred before July 1, 1993, shall be computed according to the provisions of law in effect at the time of his injury." Since the method of computing COLAs is based on the maximum compensation rate as determined under § 31-309, and COLAs are part of the weekly compensation, the COLA determination should also be computed according to the law in effect at the time of injury.1 The Connecticut Supreme Court has long held that "new workers' compensation legislation affecting rights and obligations as between the parties and not specifying otherwise, applied only to those persons who received injuries after the legislation became effective, and not to those injured previously." Iacomacci v. Trumbull, 209 Conn. 219, 222, 550 A.2d 640, (1988). This "date of injury" rule was first referred to in 1916 in Schmidt v. O.K. Baking Co., 90 Conn. 217, 220-21, 96 A.963 (1916), and has been consistently adhered to since that date. See Rossi v. Jackson Co., 120 Conn. 456, 460, 181 A.539 (1935); Farmer v. Bieber-Goodman Corporation, 118 Conn. 299, 301, 172 A.95 (1934); Panico v. Sperry Engineering Co., 113 Conn. 707, 709, 156 A.802 (1931); Preveslin v. Derby & Ansonia Developing Co., 112 Conn. 129, 142, 151 A.518 (1930). See also Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 649-50, 363 A.2d 1085 (1975), where the Court acknowledged the existence of the rule although finding it inapplicable to the facts at hand in that case.
Consequently, the COLA for October 1, 1993, should be computed in the same manner that COLAs were computed previously, i.e., by comparing the maximum compensation rates under §31-309 using 150% of the average production wage formula (the law in effect for injuries occurring prior to July 1, 1993) and applying whatever percentage increase there is to the claimant's weekly compensation rate.
Very truly yours,
William J. McCullough
Assistant Attorney General
1 1. See e.g.31-307a (Rev. 1993) which states in pertinent part:
(a) 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 October 1, 1969, which totally disables the employee continuously or intermittently for any period extending to the following October first or thereafter, shall be adjusted annually as provided in this subsection as of the following October first, and 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 the injury under section 31-309. If the maximum weekly compensation rate as determined under the provisions of 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 the injury, the weekly compensation rate which the injured employee was entitled to receive at the date of injury shall be increased by the percentage of the increase in the maximum weekly compensation rate required by the provisions of section 31-309 from the date of the injury to such October first.