Borden v. New Britain Anesthesia

The respondent employer and CHAWCT were represented by Neil Ambrose, Esq., Letizia & Ambrose, 1764 Litchfield Tpke., Woodbridge, CT 06525.

The respondent employer and Liberty Mutual Ins. Co. were represented by Eric Roberts, Esq., Law Offices of Nancy Rosenbaum, 655 Winding Brook Drive, P. O. Box 695, Glastonbury, CT 06033.

The respondent employer and Aetna Life & Casualty were represented by James Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

The Second Injury Fund was represented by J. Sarah Posner, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the August 13, 1996 Finding and Dismissal of the Commissioner acting for the Sixth District was heard May 23, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The Second Injury Fund has petitioned for review from the August 13, 1996 Finding and Dismissal of the Commissioner acting for the Sixth District. The Fund contends on appeal that the trier erred by dismissing its claim for apportionment. In light of the recent Appellate Court decision in Fimiani v. Star Gallo Distributors, Inc., 48 Conn. App. 474 (1998), we agree with the Fund’s argument, and reverse the trial commissioner’s decision.

The trial commissioner found that the claimant has suffered a total of four compensable low back injuries. The first occurred on January 14, 1981 while the claimant was employed by New Britain General Hospital (insured by the respondent Aetna). She was assessed a 5% permanent partial disability of the back for that injury. The second also occurred at New Britain General Hospital on March 5, 1982 (then insured by the respondent CHAWCT), after which the claimant was rated with a 10% permanent partial disability of the low back. The claimant later became employed with the respondent New Britain Anesthesia (insured by the respondent Liberty Mutual), where she suffered another low back injury on June 24, 1985. On August 7, 1987, the claimant again injured her low back while working at New Britain Anesthesia (still insured by Liberty Mutual). She subsequently underwent surgery including a lumbar fusion, and received payment for a 10% permanent partial disability for this claim. The Second Injury Fund has assumed liability for the 1987 low back injury.

In 1992, Drs. Froeb and Becker found that the claimant had a 30% permanent partial disability of the low back. They apportioned responsibility for this condition among the claimant’s injuries as follows: 2.5% from degenerative disc disease preceding the 1981 injury, 2.5% from the 1981 injury, 10% from the 1982 injury, 5% from the 1985 injury, and 10% from the 1987 injury. The Fund argued that liability for any § 31-308a benefits that might be awarded to the claimant should be apportioned among the carriers in proportion to the liability of each for permanent partial disability. The insurers opposed that argument. The commissioner concluded that § 31-349 did not support the apportionment sought by the Fund. He also ruled that there was no agreement among the carriers as to liability apportionment. The commissioner thus dismissed the Fund’s claim for apportionment, also noting that the merits of any pending § 31-308a claim were not affected, and would be subject to a separate hearing. The Fund has appealed the dismissal of its apportionment claim.

Several years ago, this board decided in Prioleau v. LaRosa Construction Co., 12 Conn. Workers’ Comp. Rev. Op. 140, 1432 CRB-8-92-6 (April 7, 1994), that § 31-349 C.G.S.1 allows the second employer or insurer to attempt to establish that a portion of a permanent partial disability award is due to a prior compensable workplace injury. If successful, the second employer would only be liable for paying the portion of the permanency that is attributable to the second injury. We reasoned in Prioleau that § 31-349 provides that an award shall be made against the second employer or insurer for the entire amount of the disability “less any compensation benefits payable or paid with respect to the previous disability.” Id., 144 (emphasis added). We further elaborated on the rules regarding apportionment in Jolicoeur v. L. H. Duncklee Refrigeration, Inc., 14 Conn. Workers’ Comp. Rev. Op. 24, 1842 CRB-2-93-9 (May 3, 1995), where we held that apportionment between two insurers based upon a factual finding that more than one injury caused a claimant’s condition was available under the common-law theory espoused in Mund v. Farmer’s Cooperative Savings Bank, 139 Conn. 338 (1952), regardless of the availability or absence of statutes such as § 31-349 and § 31-299b.

In Lundquist v. Parkway Pavilion, 15 Conn. Workers’ Comp. Rev. Op. 7, 2044 CRB-1-94-5 (Nov. 1, 1995), this board was asked to decide whether the Second Injury Fund was required to accept full liability for a permanent partial disability that was attributable to two separate compensable injuries. After analyzing § 31-349, we held that the Fund was only required to accept liability for the portion of the claimant’s disability that was attributable to the second injury, just as the second employer’s insurer was not required to accept liability for the entire disability once the trial commissioner found that liability could be apportioned pursuant to Jolicoeur. We explained that the statutory phrase “all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund” referred only to the compensation that was due on account of the second injury. Lundquist, 11.

However, one commissioner on the Lundquist panel dissented. Subsequently, a similar case arose with a different panel that included the commissioner who dissented in Lundquist. This time, in a 2-1 decision, the CRB held that “all responsibility” referred to full liability on the claim, and stated that § 31-349 did not contain any provision for apportioning liability for a second injury when it was transferred to the Fund. Fimiani v. Star Gallo Distributors, Inc., 16 Conn. Workers’ Comp. Rev. Op. 123, 126, 3017 CRB-3-95-2 (Nov. 26, 1996). We went on to state that the agreement between the insurers that apportioned liability for the injury was not applicable to the Fund, who was not a party to that agreement, and not an intended beneficiary of it. At the time the parties here presented their arguments, Fimiani was the most recent pronouncement on this issue.

This board ’s decision in Fimiani has since been reversed by the Appellate Court. The opinion explains that § 31-349 states that after 104 weeks the fund “shall be responsible for all compensation and medical treatment attributable to the second injury ‘less any compensation payable or paid with respect to the previous disability.’ The use of the phrase ‘less any compensation payable’ indicates that the legislature envisioned that benefits due to the plaintiff from the first injury would continue after transfer and be deducted from the benefits received from the second injury; accordingly, the fund would not take on that cost.” Fimiani, supra, 480. The Court’s conclusion was that where an employee has suffered two separate compensable injuries that have contributed to cause a disability, and liability can be apportioned between those injuries by a trial commissioner, the apportionment must be extended to the Second Injury Fund’s liability as well. Id., 480-81. Notably, the Court also explained that the commissioner should have apportioned liability based on all of the medical evidence before him rather than the voluntary agreement of the insurers. Id., 481.

Based on the Fimiani decision, it is clear that the Second Injury Fund has the same right to apportionment that an insurer would have in a case where more than one compensable injury contributes to a disability. This is so irrespective of whether the benefits in question are for permanent partial impairment, total disability, or discretionary benefits under § 31-308a. Apportionment should be made among the parties based upon the “percentage of the compensation and medical treatment for the total disability attributable to [each] injury.” Id., 480. The fact that the claimant may have earned less money at the time of each of her three injuries prior to 1987 does not prevent the commissioner from meaningfully dividing responsibility among the parties for payment of § 31-308a benefits. The “injury” in § 31-308a refers to the most recent injury, and any wage differential calculation should be based on the claimant’s employment at that time rather than her employment in 1985, 1982 or 1981. Liability for those benefits could still be apportioned according to the percentage attributable to each injury.

The respondent employer and Aetna Casualty & Surety argue in their brief that the trial commissioner also found no factual basis for apportionment in this case, and that his decision should be affirmed regardless of the Fimiani issue. However, the trial commissioner did not make any findings regarding the factual basis for apportionment, outside of denying the Fund’s Motion to Correct. It appears that the commissioner did not attempt to calculate what, if any, percentage of the claimant’s disability was due to previous injuries, because he did not believe such an apportionment would be relevant to the Fund, and the insurers had not reached their own agreement regarding a division of responsibility. As Fimiani discusses, however, such an agreement would not be determinative in this matter, and the Fund’s liability may indeed be apportioned if the facts demonstrate that the disability is attributable to multiple injuries.

The trial commissioner’s decision is hereby reversed. The case is remanded for findings regarding the percentage of disability attributable to the several injuries suffered by the claimant in this matter.

Commissioners James J. Metro and John A. Mastropietro concur.

1 Section 31-349 C.G.S. provided at the time of the claimant’s 1987 injury: “[i]f an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability, including total disability, less and compensation benefits payable or paid with respect to the previous disability, notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes. The employer . . . shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. . . . After the employer or its insurer has completed the payment for the one-hundred-four-week period, . . . all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund.” BACK TO TEXT