Weinberg v. ARA Vending Co.

Covello, J., with whom Berdon, J.,

joins, dissenting. I do not agree that the term “compensation benefits” is limited to benefits payable under the act and, therefore, respectfully dissent. I would affirm the compensation review division’s determination that the term “compensation benefits” in General Statutes 31-349 (a)1 means any compensation from any source, including Veterans Administration benefits. Any other result distorts the plain language of the statute and contravenes our longstanding public policy against “two independent compensations for the [same] injury [i.e., double dipping].” Enquist v. General Datacom, 218 Conn. 19, 26, 587 A.2d 1029 (1991), quoting Uva v. Alonzy, 116 Conn. 91, 98, 163 A. 612 (1933).

Although the majority meticulously examines the legislative history of § 31-349 (a), where, as here, the statutory language is clear and unambiguous, there is no need for statutory construction or a review of the legislative history; “it is assumed that the words themselves express the intent of the legislature.” Federal Aviation Administration v. Administrator, 196 Conn. 546, 550, 494 A.2d 564 (1985), citing State v. Smith, 194 Conn. 213, 222, 479 A.2d 814 (1984). “If there is no ambiguity in the language of the statute, it does not become ambiguous merely because the parties contend for different meanings.” Caldor, Inc. v. Heffernan, 183 Conn. 566, 571, 440 A.2d 767 (1981).

The express language of § 31-349 (a) grants a credit for “any compensation” payable or paid in connection with a previous disability. (Emphasis added.) There is no language in the statute that restricts the phrase “any compensation” to mean only compensation bene*352fits payable under the Connecticut Workers’ Compensation Act. Had the legislature intended to restrict the compensation credit to compensation paid for a previous disability resulting from an injury accepted or found to be compensable under the Connecticut Workers’ Compensation Act, then it could have expressly stated that to be the case.

Further, although the majority claims that the definition of “compensation” added to the act by the 1991 technical amendments support their contention, the majority fails to consider the definition as a whole. Public Acts 1991, No. 91-32. The new definition provides that “[a]s used in this chapter and in sections 10 to 14, inclusive, of this Act, unless the context otherwise provides ... (4) ‘Compensation’ means benefits or payments mandated by the provisions of this chapter . . . . ” (Emphasis added.) By adding the phrase “unless the context otherwise provides,” the legislature recognized that in some cases the circumstances under which the statute is being applied control the meaning of the term “compensation.”

Section 31-349 permits full compensation for the totality of all the disability that exists but only after other compensation for earlier disabilities has been deducted. Such a system prevents double dipping, a policy to which we have long subscribed in our analysis of the Workers’ Compensation Act. Gurliacci v. Mayer, 218 Conn. 531, 570, 590 A.2d 914 (1991); Uva v. Alonzy, supra; Olmstead v. Lamphier, 93 Conn. 20, 104 A. 488 (1918).

Under the majority’s construction of the statute, the plaintiff will receive double compensation for a portion of his disability. The plaintiff currently receives compensation from the Veterans Administration (VA) based upon a 20 percent disability. After the second injury, the plaintiff was assigned a total disability of 30 per*353cent, which includes the previous 20 percent disability awarded by the VA. In order to make the plaintiff whole and to avoid double dipping, ARA should only have to compensate the plaintiff for the 10 percent disability ascribable to the second injury. This, when added to the VA benefits, fully compensates the plaintiff for his 30 percent disability. Under the majority’s rationale, the plaintiff will receive compensation for the same 20 percent disability from both the VA and ARA in addition to compensation for the 10 percent disability from the second injury. As a result, the plaintiff will receive 50 percent disability benefits for what is in actuality a 30 percent disability. I submit that such a construction is unwarranted and the VA benefits should be credited against the plaintiffs total compensation.

The majority’s construction of § 31-349 (a) discourages employers from hiring handicapped employees. One of the purposes in enacting second injury fund legislation like § 31-349 (a)2 was to prevent discrimination against handicapped workers. Jacques v. H.O. Penn Machinery Co., 166 Conn. 352, 355, 349 A.2d 847 (1974). By making the employer liable for the total percentage of disability, employers will be reluctant to hire workers with a previous disability, when the prior injury is compensated by sources other than workers’ compensation.

Further, the majority’s construction serves to increase the cost of workers’ compensation in Connecticut, a result the state can ill afford. Under General Statutes § 31-354 an employer must contribute to the second injury liability fund “a sum not to exceed five per cent of the total amount of money expended by such *354employer ... in payment of his liability under this chapter for the preceding calendar year.” Thus, the more money spent by an employer in workers’ compensation benefits, the more money the employer must contribute to the Second Injury Fund. Whether the employer assumes the total responsibility here or transfers the matter to the Second Injury Fund after 104 weeks, the eventual result will be increased costs to those funding these disability benefits.

See footnote 1 of the majority opinion.

Under General Statutes § 31-349 the employer is required to pay all awards of compensation for the first 104 weeks of the disability. After the employer has completed the payments for the 104 weeks, the compensation claim may be transferred to the Second Injury Fund, which thereafter becomes responsible for further compensation benefits.