FRANZISKA ANNECHIARICO, CLAIMANT-APPELLEE vs. FRIENDLY ICE CREAM CO., EMPLOYER and AETNA LIFE CASUALTY CO., INSURER, RESPONDENTS-APPELLANTS and SECOND INJURY AND COMPENSATION ASSURANCE FUND, RESPONDENT-APPELLANT

CASE NO. 640 CRD-7-87Workers’ Compensation Commission
SEPTEMBER 16, 1988

The claimant was represented by Gary Cahill, Esq.

The respondents were represented by Jason M. Dodge, Esq. and Richard T. Stabnick, Esq., Pomeranz, Drayton Stabnick.

The Second Injury Fund was represented by L. Wilson, Esq. and Diane D. Duhamel, Esq., Assistant Attorneys General.

This Petition for Review from the September 11, Finding and Award and December 10, 1987 Order of the Commissioner of the Eighth District acting for the Seventh District was heard April 29, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and A. Thomas White, Jr.

FINDING AND AWARD

The September 11, 1987 Finding and Award of the Commissioner of the Eighth District acting for the Seventh District is affirmed and adopted as the Finding and Award of this Division.

OPINION

JOHN ARCUDI, Chairman.

The parties acknowledged a compensable injury to claimant’s lower back occurring July 12, 1978 in a Voluntary Agreement approved by the Seventh District August 6, 1980. Claimant also suffered an injury to her back accident February, 1982. She was treated in November, 1984 by her orthopedic surgeon for increased low back pain. Claimant alleged the 1984 symptoms and resultant disability to be a relapse or recurrence of the 1978 back injury. She therefore sought payment of medical bills and benefits under Sec. 31-307b, C.G.S. for such recurrence.

The Eighth District Commissioner acting for the Seventh District granted her claims in his September 11, 1987 Finding and Award. The respondent-insurer appeals arguing that the 1984 disability was not solely due to a recurrence of the prior 1978 injury.

The trial Commissioner also ordered the Second Injury and Compensation Assurance Fund to pay benefits pending the appeal pursuant to Sec. 31-301(b), C.G.S.. The Second Injury Fund has appealed that Order arguing it is not responsible to pay benefits for injuries prior to October 1, 1986; the effective date of Sec. 31-301(b)[1] .

First, we consider the respondent-insurer’s appeal. We cannot disturb factual findings of a trial Commissioner unless they are found without evidence, Grady v. St. Mary’s Hospital, 179 Conn. 662 (1980) or “unless they result from an incorrect application of the law to the subordinate facts found or from an inference illegally or unreasonably drawn from them”, Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Applying these criteria to the instant matter, we must permit the findings and conclusions below to stand as Dr. Syed J. Shadid’s testimony in his Deposition June 9, 1987 provided sufficient evidentiary basis for the Commissioner’s ruling.

On the Fund’s appeal the real issue is whether P.A. 86-27, Sec. 31-301(b), C.G.S. is a substantive or procedural enactment. The appellant argues that the obligation imposed on the Fund to pay claimant’s benefits during the pendency of an appeal is a substantive matter which cannot be applied retrospectively for injuries before October 1, 1986. “[S]tatutes affecting substantive rights are intended to operate prospectively, and to furnish a rule for future cases only, unless they contain language unequivocally and certainly embracing past transactions.”, Little v. Ives, 158 Conn. 452, 457 (1969) (citations omitted. See also, Sec. 55-3, C.G.S..

But “[L]egislation which is general in its terms and affects only matters of procedure. . .is presumed to have been intended to be applicable to all actions, whether pending or not, in the absence of any expressed intention to the contrary”, Schurgast v. Schumann, 156 Conn. 471, 487 (1968). In Schurgast, Aetna Insurance Company was impleaded under Sec. 52-102a, C.G.S. as a third party defendant in a negligence action seeking damages for the destruction of a house. Aetna argued that Sec. 52-102a permitting the impleading of a “person not a party to the action who is or may be liable. . .for all or part of the plaintiff’s claim against him” should not be applied to it. It claimed the insurance contract under which liability was asserted was a November 1, 1959 contract and Sec. 52-102a permitting impleading was not adopted until 1965. The court held, “The purpose and effect of the statute is to accelerate the accrual of the right to assert a claim against the impleading person, and it does not affect his substantive rights. The statute is procedural in nature and applied to pending actions”, Id. at 487 (citations omitted). Sec. 31-301(b), C.G.S. obligating the Second Injury Fund to pay benefits merely “accelerates” the delivery of the remedy to which the claimant may be entitled. It does not create a new substantive obligation on the part of the respondent as the money must be repaid to the Second Injury Fund if the respondents ultimately prevail[2] . See also, Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646 (1975).

Further, the United States Supreme Court in Sibbach v. Wilson, 312 U.S. 1, 14 (1942) defined procedure as “the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them”. We think Sec. 31-301(b) rolls, wing Sibbach and Schurgast can be characterized as procedural. It therefore may be applied retrospectively.

The Finding and Award of the trial Commissioner is affirmed and the appeals are dismissed.

Commissioners Frank Verrilli and A. Thomas White, Jr. concur.

[1] Sec. 31-301(b) states: “During the pendency of any appeal of an award may pursuant to this chapter, the claimant shall receive all compensation and medical treatment payable under the terms of the award to the extent such compensation and medical treatment are not being paid by any health insurer or by any insurer or employer who has been ordered, pursuant to the provisions of subsection (a) of this section, to pay a portion of such award. All such compensation and medical treatment shall be paid from the second injury and compensation assurance fund pursuant to section 31-354. If, upon completion of the appeal process, the claimant is found to have a compensable injury, the employer or insurer shall be responsible for payment of such benefits and shall reimburse the second injury fund for all sums previously expended, if any, on such claim pursuant to this subsection, plus interest at the rate of ten per cent per annum. If the final adjudication results in the denial of benefits to the claimant, and he has previously received benefits on the claim pursuant to this subsection, the claimant shall reimburse the second injury fund for all sums previously expected, plus interest at the rate of ten per cent per annum. Upon any such denial of benefits, the commissioner who originally heard the case or his successor shall conduct a hearing to determine the repayment schedule for the claimant.
[2] Likewise, a respondent must reimburse the Fund should the claimant prevail.