MARANDINO VS. PROMETHEUS PHARMACY (Is the Five year Requirement for COLA’s Consecutive or Cumulative?)

TheCRB, in a split decision, grappled with the issue of whether a claimant must be temporarily and totally disabled for a period of five continuous or five cumulative years in order to qualify for COLA benefits pursuant to the language of 31-307a(c). The majority construed the term “a period of five years or more” to mean a cumulative period, thereby reversing the trial commissioner’s construction of the term as being a consecutive period.

The majority held that the language of 31-307a(c) was not clear in so far as “a period” was susceptible to either the trial commissioner’s interpretation of a continuous period, or of the majority’s interpretation of a cumulative period of 260 months of temporary total disability. The majority embarked on a Clintonian analysis of whether the indefinite article “A” necessarily imposes a numerical limitation, citing dictionary definitions to support that it does not. Similarly, the word “period” means the interval of time marked by the occurrence of certain conditions or events. Since “A” is not necessarily one, and since “period” can represent plural events, then “a period” is susceptible to more than the trial commissioner’s interpretation.

Having demonstrated the statute was not plain and unambiguous, the majority then looked for interpretive guidance in the legislative history and circumstances surrounding its enactment. The majority referenced comments from the public hearing in 1997 supportive of the cumulative vs. consecutive approach. The CRBalso buttressed its opinion by relying on its decision in Yuille v. Bridgeport Hospital (April 28, 2003) in which there was dicta which arguably supported a cumulative interpretation.

In a five page dissent, (really, a dissent) Chairman Mastropietro argues that the statute is patently clear in so far as “a period” is just that: one single unit. Therefore, there is no need to look to the legislative history. Chairman Mastropietro further argues that even if the language of the statute is ambiguous, the legislative history has ample evidence of insurance carriers’ concerns about their inability to prospectively capture money paid for COLAs from past years’ premiums.

The liberal interpretation of “a period” is incongruent with the financial realities expressed in the legislative history, Chairman Mastropietro argues. Further, he disagrees with the majority’s inference that Yuille supports the cumulative interpretative.

If the appellate history of Marandino I is any indication of the trajectory of this holding, buckle in for a long ride.

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