Everett v. Ingraham

• Decision Date: 04 December 1962
• Citation: 150 Conn. 153,186 A.2d 798
• Court: Connecticut Supreme Court
• Parties: Louis EVERETT v. Franklin J. INGRAHAM et al. Supreme Court of Errors of Connecticut

Page 798

186 A.2d 798

150 Conn. 153

Louis EVERETT v. Franklin J. INGRAHAM et al.

Supreme Court of Errors of Connecticut.

Dec. 4, 1962.

Norman Sivin, Saybrook, for plaintiff.

Raymond J. Cannon, Asst. Atty. Gen. (Albert L. Coles, Atty. Gen., on the brief), for defendant state treasurer.

Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.

MURPHY, Justice.

The Superior Court has reserved this case for our opinion under what is now General Statutes § 31-324. In a pro forma ruling, the workmen's compensation commissioner for the second district determined that the plaintiff is not entitled to receive payment of an award of compensation from the second injury and compensation assurance fund, created by 1959 Public Act No. 580, § 12, because his injury antedated the effective date of the act, though the award of compensation for the injury was made after that date. ¹ The parties have stipulated the facts.

The plaintiff on July 1, 1959, sustained an injury to his right eye in the course of and arising out of his employment by the named defendant. The injury totally incapacitated him until September 2, 1959. Maximum improvement following the injury was reached on September 3. On January 15, 1960, the commissioner awarded the plaintiff compensation for temporary total incapacity, reimbursement for medical expenses, and specific compensation for loss of vision in the right eye. The award for specific compensation was commuted by the commissioner on February 5, 1960, to a lump sum. After the defendant employer was credited with certain partial payments which he had made to the plaintiff, the balance of the lump sum award plus medical expense reimbursement was $7682.90. On the date of the plaintiff's injury, his employer had not secured payment of workmen's compensation to his employees, as required by law. The plaintiff, on default in the payment of the award, obtained an execution, but it was returned unsatisfied on May 31, 1960. The plaintiff then applied to the commissioner for an order directing payment of the award by the state treasurer from the second injury and compensation assurance fund. The commissioner denied the application, pro forma, on the ground stated above.

Prior to the enactment of No. 580 of the 1959 Public Acts, there existed a fund, known as the second injury fund, which had been set up to pay compensation for permanent total incapacity resulting from a second injury to an employee who had previously been permanently partially incapacitated. General Statutes §§ 31-216 to 31-221 (now, as amended, §§ 31-349 to 31-354). By § 12 of Public Act No. 580 (now, as amended, General Statutes § 31-354), the title to the fund was changed to 'second injury and compensation assurance fund.' Section 13 of the act provided: 'When an award of compensation shall have been made under the provisions of chapter 566 of the general statutes [the Workmen's Compensation Act] against an employer who has failed to comply with the provisions of said chapter or who is insolvent or whose insurer is insolvent, such payments shall be made and such compensation provided from the second injury and compensation assurance fund established in section 12.' Section 13, as amended, is now § 31-355 of the General Statutes.

The answer to the question reserved is to be found in the legislative intent as expressed in the phrase '[w]hen an award of compensation shall have been made.' See Smith v. State, 138 Conn. 620, 623, 88 A.2d 117. "Shall have been' is the future perfect tense, which represents an event as completed in future time.' State v. Newark, 40 N.J.L. 92, 96. 'The words 'shall have been,' grammatically construed, relate to the future perfect tense, something which is to be done and perfected after the date of the enactment of the law in question.' Seale v. Balsdon, 51 Cal.App. 677, 680, 197 P. 971, 973. The use of the future perfect tense indicates that it was the intent of the legislature that § 13 of Public Act No. 580 should apply to any case in which the award of compensation was made after October 1, 1959, the effective date of the act. See LoRusso v. Hill, 139 Conn. 554, 558, 95 A.2d 698. This interpretation is fortified by the many cases, from Powers v. Hotel Bond Co., 89 Conn. 143, 93 A. 245, through Acquarulo v. Botwinik Bros., Inc., 139 Conn. 684, 96 A.2d 752, which state that the Workmen's Compensation Act is remedial in character and is to be broadly construed to accomplish...