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Tomkus v. Upjohn Company

CASE NO. 1533 CRB-3-92-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 2, 1994

DONALD TOMKUS

CLAIMANT-APPELLEE

v.

UPJOHN COMPANY

EMPLOYER

and

AETNA CASUALTY & SURETY

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Lindalea Ludwick, Esq., Sklarz, Early & Avallone, P.C., P.O. Box 1872, New Haven, CT 06508-1872 who neither filed a brief nor appeared at oral argument.

The respondent employer and its insurer were represented by Margaret Corrigan, Esq. and Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

The Second Injury Fund was represented by Nancy Sussman, Esq., Robin Wilson, Esq. and Brewster Blackall, Esq., Assistant Attorneys General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the October 15, 1992 Finding and Award of the Commissioner for the Third District was heard September 10, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Donald H. Doyle, Jr. and Angelo L. dos Santos.

OPINION

JESSE FRANKL, CHAIRMAN. This appeal presents the issue of whether the Second Injury Fund is liable for payment of a scarring award where the surgical scar was incurred prior to transfer of liability to the Second Injury Fund but the award was made after the date of transfer. We conclude that the Second Injury Fund is liable for such an award made after the date of transfer regardless of when the compensable scarring occurred.

The parties stipulated to the following facts. On September 9, 1983, the claimant sustained an accidental injury arising out of and in the course of his employment. This was the subject of a prior Finding and Award. On December 20, 1983, the claimant underwent surgery which left him with surgical scars. Due to a pre-existing physical impairment, the claim was transferred to the Second Injury Fund pursuant to General Statutes (Rev. to 1983) Sec. 31-349, on February 12, 1989. On September 3, 1991, the commissioner issued a disfigurement evaluation pursuant to General Statutes (Rev. to 1983) Sec. 31-308(d), awarding 51 weeks of disability benefits to the claimant. By Finding and Award dated October 15, 1992, the Third District Commissioner assigned liability for the scarring benefits to the Second Injury Fund. This appeal followed.

“Section 31-349 . . . is an apportionment statute that limits the liability of employers previously imposed . . . . According to the general rule of workers’ compensation law, if an employee was injured during the course of his employment, an employer was liable to provide compensation for the full extent of the employee’s disability, regardless of whether the disability was due, in part, to a pre-existing condition or impairment . . . . The legislature, cognizant of the hardships posed by the general rule, including discrimination against handicapped workers and employer liability for consequences not attributable to their employment . . . enacted Sec. 31-349 to limit the employer’s liability to 104 weeks of compensation in situations where a claimant’s disability following a work-related injury is materially and substantially greater as a result of an earlier injury or previous condition.” (Citations omitted.) Levanti v. Dow Chemical Co., 218 Conn. 9, 17-18 (1991).

To accomplish its purpose, Sec. 31-349 provides, inter alia, that “[t]he employer by whom the employee is employed at the time of the injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred and four weeks of disability. . . . After the employer or its insurer has completed the payment for the one-hundred-four-week period, he shall file with the commissioner having jurisdiction, and with the custodian of the second injury fund, a form indicating that all compensation and medical benefits have been paid for the one-hundred-four-week period, and indicating thereon the date the custodian was notified of the pending case. Thereafter all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund.” (Emphasis added.) Thus, Sec. 31-349 establishes a clear line of demarcation between the employer’s responsibility and the Second Injury Fund’s responsibility at the end of the 104th week of the claimant’s disability. The 104 weeks of employer liability is a finite period, the clarity and integrity of which furthers the legislative purpose behind Sec. 31-349. See Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382 (1993); Jacques v. H.O. Penn Machinery Co., 166 Conn. 352 (1974); see also Funaro v. Town of Hamden, 7 Conn. Workers’ Comp. Rev. Op. 40, 649 CRD-3-87 (1989).

The Second Injury Fund likens a scarring award for a scar occurring before the date of transfer to medical expenses incurred for treatment received during the first 104 weeks of disability but for which the employer disputes liability until the commissioner orders payment by the employer after transfer. We do not find an employer’s liability for medical expenses to be analogous to liability for scarring in the context of the present case. Medical expenses are the responsibility of the employer at the time that they are incurred. See General Statutes (Rev. to 1983) Sec. 31-294. Compensation for scarring, by contrast, is effective only when the commissioner renders an award concerning a scarring claim. See General Statutes (Rev. to 1983) Sec. 31-308(d). Under the circumstances of this case, the Second Injury Fund is not being ordered to pay benefits for periods occurring before the transfer of liability to it pursuant to Sec. 31-349. Compare Keating v. Allegheny Ludlum Steel, 10 Conn. Workers’ Comp. Rev. Op. 28, 1102 CRD-3-90-8 (1992).

Likewise, the Second Injury Fund’s reliance on Scalora v. Dattco, Inc., 39 Conn. Sup. 449 (1983), does not persuade us that an employer is liable for scarring which occurs during the first 104 weeks of the claimant’s disability where the scarring award is rendered after transfer. In Scalora, the Appellate Session concluded that benefits under Sec. 31-308(d) for permanent significant disfigurement or scarring may be paid contemporaneously with total disability benefits under Sec. 31-307. While it may be true that the claimant in the present case could have received his scarring award prior to the date of transfer, the fact remains that he did not. The scarring award here was made after the first 104 weeks of disability. Under the terms of Sec. 31-349, then, the scarring award was the responsibility of the Second Injury Fund, as it was an award made after the 104th week of disability. A retroactive addition of liability to the 104 week period would contravene the terms of the statute and the legislative purpose behind limiting an employer’s liability where certain consequences of a compensable injury are not attributable to the employment. See Plesz v. United Technologies Corp., 174 Conn. 181, 185 (1978); Jacques v. United Technologies Corp., supra, 355-56; Funaro v. Hamden, supra, 44; cf. Hernandez v. Garber Group, 222 Conn. 78, 86-87 (1992). Accordingly, the trial commissioner properly assigned liability for the scarring award to the Second Injury Fund.

We therefore affirm the trial commissioner and deny the appeal.

Commissioners Donald H. Doyle, Jr. and Angelo L. dos Santos concur.

Workers’ Compensation Commission

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