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Jolicoeur v. L.H. Duncklee Refrigeration, Inc.

CASE NO. 1842 CRB-2-93-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 3, 1995

BRIAN JOLICOEUR

CLAIMANT-APPELLEE

v.

L. H. DUNCKLEE REFRIGERATION, INC.

EMPLOYER

and

CNA INSURANCE

INSURER

RESPONDENTS-APPELLEES

and

EBI/ORION GROUP

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The pro se claimant did not appear at oral argument. At trial, he was represented by David M. Fabricant, Esq., P. O. Box 1349, New London, CT 06320.

The appellees were represented by Cori-Lynn S. Webber, Esq., Law Offices of Grant H. Miller, Jr., 29 South Main St., West Hartford, CT 06107-2445.

The appellants were represented by David C. Davis, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066.

This Petition for Review from the August 31, 1993 Finding and Award Re: Section 31-299b of the Commissioner acting for the Second District was heard October 7, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent EBI/Orion Group (Orion) has petitioned for review from the August 31, 1993 Finding and Award Re: Section 31-299b, C.G.S. of the Commissioner for the Second District. Orion argues on appeal that the commissioner improperly apportioned benefits pursuant to § 31-299b and failed to apply § 31-349 C.G.S. to the instant case. We affirm the trial commissioner’s decision.

The claimant suffered two compensable back injuries in the course of his employment with the respondent L. H. Duncklee Refrigeration, Inc. The first injury occurred on June 28, 1989, while Orion was the insurance carrier on the risk. The second injury occurred on March 29, 1990, while the respondent CNA Insurance (CNA) was on the risk. The claimant was rated with a fifteen percent permanent partial disability of the back, with five percent attributable to the first injury and ten percent due to the second injury. The respondent insurers agreed that Orion would reimburse CNA for payments made on account of the five percent disability that had been allocated to the first injury.

Back surgery was performed on the claimant in May of 1990 for removal of a herniated L4-5 disc. CNA subsequently requested that fifty percent of the medical costs for surgery and indemnity payments be deemed attributable to the first injury and paid by Orion under § 31-299b. After considering the medical evidence, the commissioner found that the claimant’s work injuries were equally contributing causes of his need for surgery, and that all indemnity and medical benefits flowing therefrom should be equally apportioned between Orion and CNA. Orion has appealed from that decision.

Orion argues that the commissioner erroneously applied § 31-299b to this case, as that statute is only applicable in occupational disease or repetitive trauma cases. Instead, Orion contends that the applicable apportionment statute is § 31-349. CNA asserts in response that the commissioner correctly applied the case of Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338 (1952), to this situation, and that it is the commissioner’s province to determine the relationship between successive injuries.

Section 31-299b provides, in relevant part:

If an employee suffers an injury or disease for which compensation is found by the commissioner to be payable according to the provisions of this chapter, the employer who last employed the claimant prior to the filing of the claim, or the employer’s insurer, shall be initially liable for the payment of such compensation. The commissioner shall, within a reasonable period of time after issuing an award, on the basis of the record of the hearing, determine whether prior employers, or their insurers, are liable for a portion of such compensation and the extent of their liability. If prior employers are found to be so liable, the commissioner shall order such employers or their insurers to reimburse the initially liable employer or insurer according to the proportion of their liability. . . .

We note that the statute refers to a single “injury or disease,” as opposed to a disability. The language of § 31-299b does not directly address the circumstance of a prior injury.

We have stated that apportionment under § 31-299b “is the workers’ compensation embodiment of common law joint tortfeasor liability ‘where a single indivisible harm is sustained as a result of the independent, separate, but concurring tortious acts of two or more persons.’” Thomen v. Turri Electric, 11 Conn. Workers’ Comp. Rev. Op. 299, 301-02, 1324 CRD-5-91-10 (Dec. 23, 1993) (citation omitted). “Section 31-299b apportionment is appropriate in occupational disease and repetitive trauma cases where there is a single injury occurring over a time continuum involving several employers or carriers.” Id., 302; see also Plecity v. McLachlan Hat Co., 116 Conn. 216 (1933) (liability imposed upon all three insurers on risk during period of employment materially contributing to occupational disease). In Thomen, supra, we ruled that § 31-299b was not applicable where two separate compensable traumatic incidents had occurred to the claimant’s right wrist, even though both injuries contributed to the claimant’s overall permanent disability.

Section 31-349,1 on the other hand, was found to be applicable in Thomen. That section codifies the workers’ compensation version of an ancient common-law tort doctrine making the last causation event in a chain of causation liable for the resultant damages. Id., 301, citing Lovett v. Atlas Truck Leasing, 171 Conn. 577, 581-82 (1976). Under § 31-349, the employer’s liability is modified by arbitrarily apportioning responsibility for all benefits due after the 104th week of injury to the Second Injury Fund, assuming the requirements of § 31-349(b) are observed. Factually, the instant case is somewhat similar to Thomen in that the claimant suffered two separate compensable back injuries rather than one continuing injury. We therefore hold that § 31-299b is not applicable to the facts of the instant case, and note that § 31-349 potentially could apply.

The facts of this case are also similar to Mund, supra, where our Supreme Court deferred to a trial commissioner’s finding that two separate ruptures of the same L4-5 disc were equal and concurrent causes of the claimant’s disability, thus allowing apportionment of liability for benefits between two insurers. The commissioner specifically found that the second injury was superimposed upon and an aggravation of the condition remaining from the first injury. Id., 341. The court used that fact to distinguish Mages v. Alfred Brown, Inc., 123 Conn. 188 (1937), in which two separate injuries to different body parts had contributed to a claimant’s total disability. There, our Supreme Court determined that the second employer was responsible to pay full compensation for the disability, as the second injury constituted an intervening cause with respect to the first employer. The Mund court decided that its case was closer to Plecity, supra, than it was to Mages, and declined to relieve either insurer of liability. We note that the claimant’s injury in Mund occurred before § 31-299b and § 31-349 were in force.

At first glance, there appears to be some confusion in the law on this subject. However, after careful consideration of the cases cited above, as well as Prioleau v. Larosa Construction Co., 12 Conn. Workers’ Comp. Rev. Op. 140, 1432 CRB-8-92-6 (April 7, 1994), and Perrotti v. Portland Chemical, 8 Conn. Workers’ Comp. Rev. Op. 105, 836 CRD-8-89-3 (June 6, 1990), the legal framework surrounding apportionment becomes clear. The general rule in workers’ compensation law is that an employer is liable to provide compensation for the full extent of an employee’s disability, regardless of whether the disability is due in part to a preexisting condition or impairment. Levanti v. Dow Chemical Co., 218 Conn. 9, 18 (1991). Because of the hardships posed by this rule, apportionment statutes such as § 31-299b and § 31-349 have been enacted. Levanti, supra; see also § 31-275(1); § 31-307(d).

The existence of these statutes does not prevent a commissioner from making a finding that two separate accidents contributed to cause a particular injury, however, where both injuries are individually compensable. Mund, supra; see also Prioleau, supra, 143; Perrotti, supra, 107. In this case, the commissioner found that the claimant’s two back injuries were equal causes of his need for surgery. The correctness of this finding was not challenged by either party via Motion to Correct, and must stand on appeal. McCarthy v. 10 Star Corp., 10 Conn. Workers’ Comp. Rev. Op. 64, 1134 CRD-2-90-11 (March 16, 1992). In contrast to the five percent permanent partial disability payments made by Orion consistent with the parties’ agreement (and § 31-349(a)), no payments were made by Orion toward back surgery or its consequences.

We do not think the legislature intended § 31-349 to prevent an employer or insurer from being held partly responsible the for direct consequences of a compensable injury where prior law, as demonstrated by Mund, would have allowed the apportionment of liability based on causation. The purposes of § 31-349 enumerated in Levanti, supra, and Jacques v. H. O. Penn Machinery Co., 166 Conn. 352, 355-56 (1974), which include preventing discrimination against handicapped workers and relieving employers from the hardship of liability for the consequences of injury not attributable to their employment, are hardly disserved by allowing apportionment of liability among two employers where such a result is supported by the evidence.

We therefore conclude the commissioner’s finding that both work injuries were equally contributing causes of the claimant’s need for surgery was permissible under our law and was based on the evidence before the commissioner. Although we find error in the commissioner’s ruling that § 31-299b was applicable to this case, we hold that apportionment of liability between Orion and CNA was appropriate under Mund and the common-law tort theory of causation espoused by that court.

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Michael S. Miles concur.

1 Section 31-349 provides, in relevant part: “(a) The fact that an employee has suffered a previous disability, shall not preclude him from compensation for a second injury, nor preclude compensation for death resulting from the second injury. If an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone, he shall receive compensation for (1) the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability, and (2) necessary medical care, as provided in this chapter, notwithstanding the fact that part of the disability was due to a previous disability.” BACK TO TEXT

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