CASE NO. 846 CRD-3-89-4Workers’ Compensation Commission
OCTOBER 3, 1989
The claimant was represented by John T. Asselin, Esq. However, claimant did not participate in the appeal as the issue in dispute was between the carrier and the S.I.F.
The respondent employer insurer was represented by Edward O’Brien, Jr., Esq.
Respondent Second Injury Compensation Assurance Fund was represented by Robin L. Wilson, Esq., Assistant Attorney General.
This Petition for Review from the March 28, 1989 Finding and Award and May 4, 1989 Order Pursuant to Sec. 31-301(b) for the Eighth District was heard May 19, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Frank Verrilli.
Appeal No. 673 CRD-3-87 by Transamerica Ins. Co. concerns other issues arising out of this matter and is not being here decided.
OPINION
JOHN ARCUDI, CHAIRMAN.
In this case the decedent Paul Rossomondo sustained a myocardial infarction arising out of and in the course of his employment with Ridgewood Nurseries January 5, 1984. A voluntary agreement approved by the Third District established a $345.00 weekly compensation rate, the maximum then permitted. Liability for decedent’s disability payments was transferred to the Second Injury Fund on January 6, 1986, pursuant to the provisions of Sec. 31-349 and due to a prior permanent physical impairment Paul Rossomondo died on March 22, 1987. The matter in the meantime had been transferred from the third district to the eighth. That commissioner in a March 28, 1989 Finding and Award granted benefits to the surviving dependent widow, claimant herein. The commissioner issued a further order May 4, 1989 directing the Fund to make those payments to the widow beginning at the date of death March 22, 1987.
The Fund’s appeal from the Award and the Order contends (1) that another 104 waiting period must transpire after date of death before liability again may lie against the Fund and (2) the commissioner’s computation of the weekly compensation due under the May 4, 1989 order is improper as the cost of living increments to be added to the base weekly rate $345.00 are only those October 1 annual increments occurring after the date of death.
Our decision in Funaro v. Town of Hamden, 649 CRD-3-87, (7/26/89) is dispositive of both issues. In Funaro we determined that Sec. 31-349 does not contemplate two distinct and separate waiting periods one for disability and another for death subsequent to the disability.
Funaro is also relevant to the second point. Since we determined that the apportionment of liability threshold is contained in a continuum from the date of disability, then no new date intervenes for computation of cost of living increments. In this regard the language of Sec. 31-306(b)(2) (A) is significant:
“(A) The weekly compensation rate of each dependent entitled to receive benefits under this section as a result of death arising from a compensable injury occurring on or after October 1, 1977, shall be adjusted annually as of the following October first, and each subsequent October first, to provide such dependent with a cost-of-living adjustment in his weekly compensation rate as determined as of the date of injury under section 31-309. If the maximum weekly compensation rate as determined under the provision of section 31-309, to be effective as of any October first following the date injury, is greater than the maximum weekly compensation prevailing at the time of injury, the weekly compensation rate which the injured employee was entitled to received at the time of injury shall be increased by the dollar amount of the increase in the maximum weekly compensation rate required by the provisions of section 31-309 from the date of injury to such October first.”
The trial commissioner followed the statute to the letter in his May 4 order. He took the maximum compensation rate set on the October 1 immediately preceding the decedent’s March 22, 1987 death, $408.00. From it he subtracted the $345.00 maximum rate prevailing on the January 5, 1984 date of injury to arrive at the adjustment mandated by Sec. 31-306(b)(2)(A), $63.00. He added that $63.00 to decedents’ $345.00 rate at date of injury and arrived at the $408.00 rate he ordered to be paid to the widow from March 23, 1987 to September 30, 1987. He performed the same calculation for the period beginning October 1, 1987 and ending September 30, 1988 to set the $429.00 rate and again for the period beginning October 1, 1988 to set the $447.00 rate which he ordered. Coincidentally, the decedent was entitled to the maximum rate at date of injury so each of the rates set was simply the maximum prevailing for the required period.
The fund would have us somehow treat the date of death as the date of injury mentioned in Sec. 31-306b(2)(A) but have the dependent’s rate revert to the rate at the date of injury, $345.00. Then on the October first subsequent to the date of death the widow’s cost-of-living adjustment would only be the one year difference in maximum rates between October 1, 1986 and October 1, 1987. The statutory scheme lends no weight to such an interpretation.
We therefore affirm the March 28, 1989 Finding and Award and the May 4, 1989 order and dismiss the appeal.
Commissioners Robin Waller and Frank Verrilli concur.