Dunbar v. Tammelleo

• Decision Date: 20 March 1996
• Docket Number: Nos. 94-313-M,s. 94-313-M
• Citation: 673 A.2d 1063
• Parties: Ann Marie DUNBAR v. William F. TAMMELLEO, in His Capacity as Administrator of the Workers' Compensation Administrative Fund. Gerald JENKINS v. William F. TAMMELLEO, in His Capacity as Administrator of the Workers' Compensation Administrative Fund. P., 94-484-M.P. and 94-485-M.P.
• Court: Rhode Island Supreme Court

Page 1063

673 A.2d 1063

Ann Marie DUNBAR v. William F. TAMMELLEO, in His Capacity as Administrator of the Workers' Compensation Administrative Fund.

Gerald JENKINS v. William F. TAMMELLEO, in His Capacity as Administrator of the Workers' Compensation Administrative Fund.

Nos. 94-313-M.P., 94-484-M.P. and 94-485-M.P.

Supreme Court of Rhode Island.

March 20, 1996.

Gary J. Levine, Providence, for Plaintiff Dunbar.

Judith Scott, Cranston, for Defendant.

Hagop S. Jawharjian, Providence, for Plaintiff Jenkins.

OPINION

WEISBERGER, Chief Justice.

These consolidated cases came before the court on petitions for certiorari filed by William F. Tammelleo in his capacity as administrator of the Workers' Compensation Administrative Fund (administrator) wherein he seeks review of final decrees of the Appellate Division of the Workers' Compensation Court awarding benefits to Ann Marie Dunbar and Gerald Jenkins pursuant to the bonus-incentive statute G.L.1956 § 28-37-4(i), as amended by P.L.1991, ch. 206, § 7, which was subsequently repealed by the General Assembly by P.L.1992, ch. 31, § 16 that became effective upon the date of its passage. P.L.1992, ch. 31, § 29. We grant the petitions for certiorari and affirm the final decrees of the Workers' Compensation Court Appellate Division in part and quash in part. The facts insofar as pertinent to these petitions for certiorari will be set forth separately for each of the cases.

Dunbar

The Appellate Division set forth the following stipulation of facts in the course of its decision. The stipulation is as follows:

"1. That the petitioner sustained a work-related injury on July 5, 1990 in the course of her employment with State of RI/Juvenile Correctional Service.

"2. That Workers' Compensation Court Decree 90-7674 memorializing said injury, had been entered by the Workers' Compensation Court and is attached hereto.

"3. That the petitioner's pre-injury average weekly wage is $1001.24.

"4. That the petitioner received workers' compensation benefits for total incapacity from July 6, 1990 until April 8, 1991 at which time benefits were reduced from total incapacity to partial incapacity by said decree W.C.C. 90-7674.

"5. That the petitioner returned to work at Sears Roebuck & Co. on August 19, 1991 earning less per week than her pre-injury average weekly wage.

"6. That the petitioner continued to work in such employment for a period of not less than thirteen (13) weeks, and continues to be so employed.

"7. That during this same above-mentioned period of August 19, 1991 through May 1, 1992 the State (self-insured) made partial weekly workers' compensation payments to the petitioner of $386.00/week.

"8. That the Petitioner continues to remain partially disabled.

"9. That the petitioner applied for bonus incentive payments pursuant to R.I.G.L. § 28-37-4(i) on March 2, 1992 making a claim to benefits for weeks worked from August 19, 1991 through May 1, 1992, from August 19, 1991 to December 27, 1991, from December 28, 1991 to April 24, 1992 and from April 25, 1992 to May 1, 1992, the last date of proof of average weekly wage and receipt of compensation before the repeal of the statute.

"10. The petitioner has been paid a total of $19,838.32 for the period of time August 19, 1991 through May 1, 1992.

"11. That Public Law 92-031 repealed R.I.G.L. § 28-37-4(i), effective May 18, 1992.

"12. That on or about November 23, 192 a Petition to Determine a Controversy was filed at the Workers' Compensation Court.

"13. That the respondent moved to dismiss the petition based on the repeal of R.I.G.L. § 28-37-4(i).

"14. That the petition was denied at pre-trial and the petitioner filed a timely appeal."

As set forth in the stipulation, employee applied for and received bonus incentive payments from and after March 2, 1992, and received a total of $19,838.32 for the period from August 19, 1991 through May 1, 1992. After the repeal of § 28-37-4(i), which was effective May 18, 1992, the administrator discontinued payments to employee on the basis of his belief that the statute discontinuing payments should be retroactively applied to individuals already receiving such compensation. A trial judge of the Workers' Compensation Court determined that employee was entitled to continued benefits but stayed his decision pending appeal. The employee appealed from the stay, and the administrator It has been firmly established that this court will generally construe a statute to "operate prospectively from and after the effective date of the statute. It is only in the event that a statute contains clear and explicit language requiring retroactive application that a statute will be interpreted to operate retrospectively." Avanzo v. Rhode Island Department of Human Services, 625 A.2d 208, 211 (R.I.1993). Although the administrator correctly contends that P.L.1992, ch. 31, § 16, repealed the operative section that authorized the bonus-incentive plan, there is nothing in the act that indicates an intent to deprive any employee of a benefit to which he or she had become entitled by reason of a pre-existing agreement, a preliminary determination, or any other prior orders or decrees. It clearly appears that the Legislature specifically intended that P.L.1992, ch. 31 should not have a retrospective application. Section 31 of P.L.1992, ch. 31 reads as follows:

appealed on the merits. The Appellate Division in its decision held that the statute that purported to repeal § 28-37-4(i) was intended to operate only prospectively and not retroactively. It further held that the trial judge had no authority to grant a stay. We affirm this decision and the final decree that was issued pursuant thereto for the following reasons.

"This act shall take effect upon passage and shall not abrogate or affect substantive rights or pre-existing agreements, preliminary determinations, orders or decrees, provided, however, that all procedural provisions, shall be applicable retroactively, regardless of the date of injury, to all employees, employers, insurers, and other parties or persons, except where otherwise specifically indicated. Except as specifically provided, amendments in this act to the following sections of chapters 28-33 and 28-34 shall apply only to those injuries occurring on or after the date of passage of this act." ¹

The administrator very properly expresses a strong desire to protect the fund from diminution and points out that the expense of continuing such payments is not only significant but formidable as well. The administrator further points out that our decision in Brennan v. Kirby, 529 A.2d 633 (R.I.1987), demonstrates the power of the Legislature to cut off gratuities or floating expectancies until actually received by the beneficiary. Id. at 641. However, in order to cut off even gratuities or floating expectancies, the Legislature must manifest an intent to do so.

General Laws 1956 § 43-3-22 provides:

"The repeal of any statute shall in no case affect any act done, or any right accrued, acquired or established, or any suit or proceeding had or commenced in any civil case before the time when the repeal shall take effect."

In the case at bar, employee had by reason of determination made by the administrator become entitled to receive the difference between her regular earnings and the amount that she received from employment while partially disabled pursuant to the bonus-incentive plan. Upon the passage of P.L.1992, ch. 31, the administrator stopped further payments. After a searching examination of the statute both the trial judge and the Appellate Division determined that there was no expressed intent to apply the repeal retroactively.

Consequently this court is constrained to affirm the decision of the Appellate Division and its final decree in determining that employee is entitled to the bonus-incentive payments as long as her partial disability continues.

THE STAY

The Appellate Division further determined that the trial judge had no power to stay his own decision. In so determining, the Appellate Division was clearly correct. General Laws 1956 § 28-35-33 provides in pertinent part "Any decree entered by the workers' compensation [court] acting within its powers shall in the absence of fraud be final, and shall take effect immediately upon being entered, and enforcement of the decree shall not be stayed pending appeal."

Consequently the only tribunal that would be capable of ordering a stay of payment of benefits pursuant to a decree of the Workers' Compensation Court would be this court in furtherance of its constitutional power to review all decisions of lower tribunals and to protect the rights of the parties pending such review.

Jenkins

Gerald Jenkins also brought two actions in the Workers' Compensation Court. One such action sought a determination of the amount of his compensation. The second action challenged the termination by the administrator of the Workers' Compensation Administrative Fund of all compensation following repeal by the General Assembly of the bonus-incentive program pursuant to P.L.1992, ch. 31. In conjunction with his first action the parties filed a stipulation of facts. This stipulation is set forth as follows:

"1. Gerald Jenkins was employed as a sales manager at Jake Kaplan's Ltd. on April 24, 1990, when he became partially incapacitated due to a work-related cause.

"2. Aetna Insurance Company filed a Memorandum of Agreement with the Department of Workers' Compensation on August 16, 1990. (Exh. 1) According to this Memorandum of Agreement, Mr. Jenkins' average weekly wage was $2,462.98 making his compensation rate $386.00.

"3. Mr. Jenkins returned to work on February 17, 1991 at Ashmont Supply Company, earning $300.00 per week.

"4. On June 4, 1991, the Administrator of the Second Injury Indemnity Fund received Mr. Jenkins' request for bonus incentive payments pursuant to R.I.G.L. Section 28-37-4(i) for the weeks between February 17, 1991 and May 25, 1991.

"5. O...