OPINION

JOHN ARCUDI, CHAIRMAN.

This appeal arises from an overpayment to claimant by the Respondent Second Injury Fund. The claim for a June 11, 1980 compensable back injury was accepted by the employer, the town of New Milford, in a January 21, 1981 Voluntary Agreement setting the basic compensation rate as $168.96. A subsequent Voluntary Agreement recited claimant had reached maximum improvement August 3, 1982. That agreement also established that claimant had suffered a 35% permanent partial disability of the back and was entitled 182 weeks of Sec. 31-308(b) benefits at his base rate from August 3, 1982 until the end of January, 1986.

Since claimant had had a back impairment previous to his June, 1980 injury, under Sec. 31-349 the permanent disability resulting from both conditions caused the Second Injury Fund to become liable to pay all compensation due after the first 104 weeks, i.e. on June 10, 1980.

Thereafter claimant was awarded Sec. 31-308a benefits pursuant to Orders of the Seventh District Commissioner dated July 21, 1986, April 9, 1987, September 29, 1987 and May 10, 1988. On August 22, 1988 the commissioner issued a decision which has been led both by the claimant and the respondent Second Injury Fund. That August 22, 1988 Order denied the Fund's claim in large part. The Fund contends that all ordered 31-308a payments in excess of claimant's basic rate are erroneous as a matter of law. Claimant opposes that legal interpretation.

In the August 22, 1988 Order the commissioner agreed that Sec. 31-308a payments in excess of the basic compensation rate were incorrect but ruled that only excess payments made after May 10, 1988 were to be reimbursed.

Claimant's appeal disagrees with the conclusion that Sec. 31-308a benefits were limited to his basic weekly rate, $168.96. Further, since the respondent Fund terminated benefits on its own motion without filing a Form 36 as required by Sec. 31-296, the claimant seeks an award of interest and attorney's fees. In its cross appeal the Fund argues that any order to pay Sec. 31-308a benefits in excess of the basic rate was void ab initio as beyond the statutory power of the commissioner and therefore all excess payments should be reimbursed or credited against future entitlement.

Respondent bases its argument on the statute, Sec.

31-308a, which provides:

In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partial permanent disability equal to two-thirds of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury and the weekly amount which such employee will probably be able to earn thereafter, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee's age, but not more than the maximum provided in section 31-309. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury. The duration of such additional compensation shall be determined upon a similar basis by the commissioner.

It relies on the limitations imposed by the language, "but not more than the maximum provided in section 31-309." As of June 11, 1980 section 31-309 stated in pertinent part:

Except as provided in section 31-307, the weekly compensation received by an injured employee shall in no case be more than one hundred percent, raised to the next even dollar . . . .

Sec. 31-307 limits benefits "to sixty-six and two thirds percent of . . . average weekly earnings at the time of injury. . . ." Therefore, respondent concludes 31-308a benefits cannot exceed sixty-six and two thirds percent of claimant's average weekly earnings at the time of injury.

In support of that conclusion the Fund refers to principles of statutory construction. It quotes "a fundamental tenet of statutory construction is that. . . the intent of the legislature is expressed in the words it used." Hall v. Planning Board, 2 Conn. App. 49 (1984). Also Berger v. Tonken, 192 Conn. 581, 589-90 (1984) provides, "[W]e must consider the statutory scheme as a whole, giving meaning to every section, and assuming no word or phrase to be superfluous. . . (citations omitted) Where, as here, more than one statute is involved, we presume that the legislature intended them to be read together to create a harmonious body of law, (citations omitted) and we construe the statutes, if possible to avoid conflict between them."

The Fund's arguments are persuasive. In order to effect a harmonious body of law, Sec. 31-308a when construed with Sec. 31-309 and Sec. 31-307 must be read to require that 31-308a benefits cannot exceed the claimant's basic weekly compensation rate.

Next we must consider whether the Fund is entitled to credit for all sums paid in excess of the proper rate. The August 22, 1988 Order declared that as the Fund "failed to seek correction of, or appeal from, each order granting to the claimant Sec. 31-308a benefits except as to the order dated May 10, 1988, . . . [it was] estopped from claiming repayment of any monies paid pursuant to each such order in excess of claimant's basic weekly compensation rate." See Paragraph 21B August 22, 1988 Order.

Under Sec. 31-315 the Fund sought to modify all those orders in order to recover monies paid in excess of the claimant's base compensation rate. Section 31-315 provides an award may be modified:

whenever it appears to the compensation commissioner. . . that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such. . . award in order properly to carry out the spirit of this chapter. The commissioner shall. . . have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards. . . during the whole compensation period applicable to the injury in question.

Here modification is requested on the theory that the excessive rate in the four orders in question was a mistake of fact and therefore modifiable under Sec. 31-315. We think modification rests on a broader basis. The commissioner was without power or jurisdiction to order payment exceeding that permitted by statute.

As noted in Connors v. West Haven, 5 Conn. Workers' Comp. Rev. Op. 89, 91, 477 CRD-3-86 (1988) in reliance on Broaca v. Broaca, 181 Conn. 463 (1980) "a court retains power to open and modify a judgment rendered without jurisdiction at anytime." (citations omitted), we think that as the Orders in question were in excess of the statutorily conferred jurisdiction, they are void ab initio. Since any order in excess of $168.96 weekly was therefore beyond the commissioner's powers, the Fund is entitled to restitution.

Reilly v. State, 119 Conn. 217, 222-223 (1934) quoted an early United States Supreme Court opinion "[t]he law raises an obligation in the party to the record, who has received the benefit of the erroneous judgment, to make restitution to the other party for what he has lost. . . ." Bank of United States v. Bank of Washington, 31 U.S. (6 Peters 8) 8, 17 (1832). In a later case Justice Cardozo writing for the majority in Atlantic Coast Line Railroad Co. v. State of Florida, 295 U.S. 301, 309-311, 55 S. Ct. 713, 716-17 (1935) noted:

Decisions of this court have given recognition to the rule as one of general application that what has been lost to a litigant under compulsion of a judgment shall be restored thereafter, in the event of a reversal, by the litigants opposed to him, the beneficiaries of the error (citations omitted). . . . But the rule, even though general in its application, is not without exceptions. A cause of action for restitution is a type of the broader cause of action for money had and received, a remedy which is equitable in origin and function. (citations omitted). The claimant, to prevail, must show that the money was received in such circumstances that the possessor will give offense to equity and good conscience if permitted to retain it. (citations omitted).

We therefore dismiss the claimant's appeal, sustain the Fund's cross-appeal and remand to the Seventh District for further proceedings consistent with this opinion.

Commissioners A. Thomas White, Jr. and James J. Metro concur.