CASE NO. 92-CRD-3-81Workers’ Compensation Commission
NOVEMBER 1, 1982
The Claimant-Appellant was represented by Gerald Stevens, Esq.
The Respondents-Appellees were represented by James Pomeranz, Esq.
This Petition for Review from the October 5, 1981 Decision of the Commissioner for the Third District was argued June 25, 1982 before a Compensation Review Division Panel consisting of Commissioners John Arcudi, A. Paul Berte and Gerald Kolinsky.
John Arcudi, Chairman John Arcudi, Chairman
A. Paul Berte, Commissioner A. Paul Berte, Commissioner
Gerald Kolinsky, Commissioner Gerald Kolinsky, Commissioner
FINDING AND AWARD
The Finding and Award of the Commissioner is affirmed and adopted as the Finding and Award of the Compensation Review Division.
OPINION
This appeal concerns only one legal issue, whether dependency allowances and cost of living adjustments are payable under Section 31-308, the partial incapacity provision of Chapter 568. The parties have stipulated that the Claimant-Appellant was totally disabled from August 4, 1980 to May 26, 1981 and that thereafter he was eligible for Section 31-308 benefits in that he became able to perform light sedentary work.
Appellant argues that the language now appearing at the end of the first sentence of Section 31-308(a), “such employee shall be paid his full weekly compensation” means compensation plus dependency allowance and cost of living adjustment. Respondent-Appellee argues that these two increments are only payable for total incapacity recipients.
Dependency allowances did not appear in Connecticut’s Workers’ Compensation Law until 1967 when major legislative changes occurred. At that time the present Section 31-308b[1]
was added to the statutes.[2] As then enacted it read:
“Each employee entitled to compensation under the provisions of chapter 568 of the general statutes, as herein amended, other then death benefits payable under section 31-306 . . . . shall be paid for each week he receives such compensation a dependency allowance . . . .”
In 1969 the legislature amended 31-308b to read:
“Each employee entitled to receive compensation for total incapacity under the provisions of section 31-307 shall be paid for each week he receives such compensation a dependency allowance . . . for each of such employee’s children or stepchildren . . .”
Cost of living increments also were first provided in 1967 by adding Section 31-307a. The pertinent parts of that new section read:
“Each employee entitled to receive benefits under section 31-307 as a result of an injury . . shall be increased by that percentage, if any which equals the percentage of increase in the average wage of employees covered by chapter 567 . . .”
Section 31-307a was also amended in 1969 to read in pertinent part:
“(a) The weekly compensation rate of each employee entitled to receive benefits under section 31-307 . . . which totally disables such employee continuously or intermittently for any period extending to the following October first or thereafter should be adjusted . . . to provide . . . a cost of living adjustment in his weekly compensation rate. . .”
It is of course the 1969 language which has survived in the present statute.
By contrast the 1967 and 1969 legislatures made no change in the 31-308[3] language or which appellant here relies. This “full compensation” in Section 308 before 1967 clearly meant the full weekly compensation rate rather than a partial rate as there then existed no increments for dependency allowances or cost of living adjustments.
In this regard it is relevant to recall the history of “total incapacity” and “partial incapacity” payments under our law, Smith vs. Connecticut, 78-CRD-2-81, 8 C.L.T. No. 10, 1 Conn. Workers’ Compensation Review Opinions 95, (1/4/82). The distinction between total incapacity and partial incapacity payments has remained since the Workers’ Compensation Law was first enacted in 1913.
The legislature was obviously aware of this distinction and this history in 1967 and 1969. It tied the new cost of living adjustment of Section 31-307a in 1967 directly to those receiving total incapacity payments under Section 31-307. With respect to the dependency allowance lest there be some confusion in the 1967 language of Section 31-308b, it changed that language in 1969 so that dependency allowances were specifically tied to total incapacity payments under Section 31-307.
If “full compensation” before 1967 referred only to claimant’s receiving his total weekly rate rather than a partial rate based on reduced earning capacity, we fail to see how the legislature which left the introductory language of Section 31-308 unchanged could have meant by its inaction to alter the meaning of “full compensation” in that sentence. We must grant the 1967 and 1969 General Assembly members sufficient linguistic sophistication so that if they wished to add these new increments to partial incapacity payments under Section 31-308, they would have been competent specifically to frame such language. Here also the legal principle “inclusio unius exclusio alterius” pertains. The new language mentioned Section 31-307 total benefits but did not mention Section 31-308 partial incapacity benefits. This lends further weight to the conclusion that the 1967 increments were not meant to be added to the weekly compensation rate.
For the reasons here stated the decision of the Commissioner is affirmed, and the Appeal is denied.
and 31-308(a) as well as 31-308b and 31-308(b), each of which is a different part of the law.