Attorney General: The Honorable Jesse Frankl, Workers' Compensation Commission, 1995-032 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

November 2, 1995

The Honorable Jesse Frankl
Chairman
Workers' Compensation Commission
21 Oak Street
Hartford, CT 06106

Dear Chairman Frankl:

This is in response to your letter dated October 16, 1995, wherein you requested a legal opinion from this office concerning the computation of cost of living adjustments (COLAs) under the Workers' Compensation Act for the years 1994 and 1995 for persons injured prior to July 1, 1993.

As you mentioned in your request, this office provided an opinion to you, dated September 23, 1993, concerning a similar question. It is our opinion that the reasoning provided in the September 22, 1993 opinion still pertains, and the response is the same. COLAs for 1994 and 1995 should be computed in the same manner that COLAs were computed for 1993, 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.

Section 21 of Public Act 93-228 made several changes to the language of 31-309, which sets the maximum compensation rate. Prior to the effective date of this Act, the maximum compensation rate was "one hundred fifty per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state as hereinafter defined...." After the effective date, the maximum compensation rate was "one hundred per cent, raised to the next even dollar, of the average weekly earnings of all workers in the state as hereinafter defined...." However, this same sentence goes on to state: "[E]xcept that 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."

"Compensation" is defined in 31-275(4) as "benefits or payments mandated by the provisions of this chapter, including, but not limited to, indemnity, medical and surgical aid or hospital or nursing service...and any type of payment for disability,... or any adjustments in benefits or payments required by this chapter." (emphasis added). According to Section 31-307a, COLAs are defined as, "[t]he weekly compensation rate of each employee entitled to receive compensation under section 31-307 ... adjusted annually as provided in this subsection ..., to provide the injured employee with a cost-of-living adjustment in his weekly compensation rate...." Since COLAs are adjustments in "benefits or payments" they are included within the definition of "compensation" set forth in 31-275(4).

Therefore, 31-309 states that the "compensation" received by someone injured before July 1, 1993 shall be computed in accordance with the law in effect at the date of injury. Section 31-275 states that compensation includes any adjustments required under Chapter 568 and section 31-307 provides for an annual cost-of-living adjustment to the compensation rate for certain employees. Taken together, these sections unequivocally require that the COLAs you are concerned with be computed in accordance with the law in effect at the time of injury, i.e., using the 150% of the average weekly earnings of production and related workers in manufacturing in the state, as defined in subsection (c) of 31-309.

Because the statute is specific in requiring that the compensation rate, and thus the COLA, be computed in accordance with the law in effect at the time of the injury, the issue of whether Public Act 93-228 affected the substance or procedure of the Workers' Compensation law, which you mention in your request, is not relevant to your present question. See Turner v. Turner, 219 Conn. 703, 716 (1991).

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

William J. McCullough
Assistant Attorney General

RB/WJM


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