State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Lundquist v. Parkway Pavilion

CASE NO. 2044 CRB-1-94-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 1, 1995

NORMA LUNDQUIST

CLAIMANT-APPELLEE

v.

PARKWAY PAVILION

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

and

CRAWFORD & COMPANY

INSURER

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was neither represented at oral argument nor at the formal hearing on this issue.

The respondent employer and Liberty Mutual were represented by Debra S. Dee, Esq., Law Offices of Nancy S. Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033.

The respondent employer and Crawford & Co. were represented by David C. Davis, Esq., McGann, Bartlett, & Brown, 281 Hartford Tpke., Vernon, CT 06066.

The Second Injury Fund was represented by J. Sarah Posner, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 061410120.

This Petition for Review from the May 5, 1994 Finding and Award of the Commissioner acting for the First District was heard March 24, 1995 before a Compensation Review Board panel consisting of Commissioners Roberta Smith Tracy, Amado J. Vargas and Michael S. Miles.

OPINION

ROBERTA SMITH TRACY, COMMISSIONER. The Second Injury Fund (Fund) has petitioned for review from the May 5, 1994 Finding and Award of the Commissioner for the First District. On appeal, the Fund argues that the commissioner erred in ordering the transfer of full liability for the claimant’s disability to the Fund. We agree with the Fund’s position and reverse the trial commissioner’s decision.

The facts are not in dispute. The claimant suffered a compensable right hip injury in 1977, which was accepted by the respondent Liberty Mutual (Liberty). She suffered a second right hip injury in 1988, which was accepted by the respondent Crawford & Company (Crawford), the insurer then on the risk. Dr. Schutzer, the claimant’s treating physician, opined that 70 percent of the claimant’s permanent partial disability was attributable to the 1977 incident, and 30 percent to the 1988 injury.1 The two insurers subsequently entered into an agreement under which Liberty reimbursed Crawford for 70 percent of the payments it made during the first 104 weeks of the claimant’s disability. Liability was then transferred to the Fund pursuant to § 31-349 C.G.S.

The Fund accepted that the statutory prerequisites for transfer had been met, but argued that it should only assume liability for thirty percent of the claimant’s disability. The commissioner ruled, however, that the statute required full liability to be transferred to the Fund. No finding was made apportioning the percentages of disability between the 1977 and 1988 injuries. The Fund appeals from that decision, raising an issue of first impression before the Compensation Review Board.

The Fund’s argument that apportionment is required in this case rests on two statutes: § 31-299b C.G.S. and § 31-349. We can immediately eliminate the § 31-299b argument, as that statute does not apply where two separate traumatic incidents have occurred. Rather, it is intended for use in occupational disease and repetitive trauma cases where a single injury occurs over a time continuum spanning several different employers or insurance carriers. Jolicoeur v. L. H. Duncklee Corp., 1842 CRB-2-93-9 (decided May 3, 1995); Thomen v. Turri Electric, 11 Conn. Workers’ Comp. Rev. Op. 299, 301-02, 1324 CRD-5-91-10 (Dec. 23, 1993).

Section 31-349, however, does apply to this case. At the time of the claimant’s second injury, its relevant parts provided:

The fact that an employee has suffered previous disability, shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom. If an employee who has . . . 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 any compensation benefits payable or paid with respect to the previous disability, and necessary medical care, as elsewhere provided in this chapter, notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes. The 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 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 . . . a form . . . . Thereafter all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund.”

Here, the claimant’s second disability resulted in a permanent disability that was significantly worsened by the previous injury. As the statute requires, Crawford paid benefits to the claimant for the entire disability, and was reimbursed by Liberty for 70 percent pursuant to a separate agreement. The question before us now is whether § 31-349 requires liability for only the percentage of disability attributable to the second injury to be transferred to the Fund, or whether total responsibility for the disability must be assumed by the Fund.

Section 31-349 codifies for workers’ compensation purposes a version of an ancient tort doctrine that makes the last causal event in a chain of causation liable for all of the resulting damages. Jolicoeur, supra; Thomen, supra, 301. The statute then modifies that liability by arbitrarily making the Fund liable for all benefits due after the 104th week of injury. Id. This concept is an exception to the general rule in workers’ compensation law, which is that an employer is liable for the full extent of an employee’s disability regardless of contributory preexisting factors. Levanti v. Dow, 218 Conn. 9, 18 (1991); Jolicoeur, supra. The statute was intended to prevent discrimination against handicapped workers and to prevent employers from being liable for consequences not attributable to their employment in a way that would work hardship on neither. Levanti, supra; Jacques v. H. O. Penn Machinery Co., 166 Conn. 352, 361-62 (1974).

We recently held in Jolicoeur, supra, that a commissioner is not prevented by the existence of § 31-349 from finding that two separate accidents contributed to cause a particular disability where both injuries were individually compensable under the Workers’ Compensation Act. “The purposes of § 31-349 . . . are hardly disserved by allowing apportionment of liability among two employers where such a result is supported by the evidence.” Id.; see also Mund v. Farmer’s Cooperative Savings Bank, 139 Conn. 338 (1952). The question here is slightly different, as we are now concerned with whether such an apportionment could be applicable to the liability of the Fund itself. The purpose of § 31-349, however, would appear to be equally consistent with such an apportionment, as the employee would obtain compensation, and the employer would be relieved of responsibility for the consequences of the prior compensable injury.

A search of the legislative history behind the Second Injury Fund has uncovered no indication that this issue was ever contemplated by our legislature. Statements made during its sessions appear to have focused on far more general issues regarding the Fund, and cannot be reasonably interpreted as addressing the question of apportionment now before us. See, e.g., 8 S. Proc., Pt. 6, 1959 Sess., p. 2815 (remarks of Sen. Buzaid); 12 H. R. Proc., Pt. 9, 1967 Sess., p. 4042 (remarks of Rep. Pawlak). The 1979 amendment to § 31-349 stating that the claimant’s compensation shall be reduced by “any compensation benefits payable or paid with respect to the previous disability” was similarly enacted without any legislative debate. No light is therein shed on whether that credit provision was meant to reduce only the amount due from the insurer on the risk at the time of the second injury, or whether it also applies to the compensation due from the Fund.

We do not doubt, though, that the credit provision in § 31-349 required the compensation benefits payable with respect to the 1977 injury to be deducted from the amount due from Crawford to the claimant. See Mann v. Morrison-Knudsen/White Oak, 1918 CRB-1-93-12 (decided May 12, 1995). Because part of the disability was caused by the 1977 injury, Liberty and Crawford appropriately reached an agreement as to the percentage of disability caused by that injury, with Liberty providing the appropriate reimbursement for the benefits payable with respect to the first injury.

The only stumbling block with respect to the application of that credit provision to the Fund is the language stating that “all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund” once the 104-week period has concluded. However, we believe that “compensation” as used there refers to the compensation due from the employer or carrier on the risk for the second injury. The credit provision appears to modify the entirety of § 31-349, as it is couched in terms of the compensation due to the claimant, and would therefore apply equally to compensation paid by the employer as well as the Fund. Again, this interpretation is neither corroborated nor refuted by the legislative history, and is consistent with the general purposes behind the enactment of the Second Injury Fund. We are confident that indemnifying Liberty from liability for the direct results of a covered injury by placing that liability on the Second Injury Fund would not further the policies behind § 31-349, and would place an unwarranted burden on the already beleaguered Fund. We are also reluctant to place any liability on the Fund that is not clearly mandated by the statutory language. See McNulty v. Stamford, 37 Conn. App: 835, 838 (1995).

The commissioner ‘s finding that the legislature did not intend to create an “ongoing joint liability” of this type is thus not supported by the legislative history as discussed above. As for his finding that the “potential detriment to claimants from late payments, bookkeeping disagreements and reimbursement tangles is too frightening to contemplate,” we agree with the Fund that there is no evidence to support that as well. In fact, the Fund has indicated that it would administer the entire claim in this case, and seek reimbursement from Liberty for its apportioned share of the disability. We would advocate such a system for all such claims, as we share the trial commissioner’s implied view that the claimant’s timely receipt of payments is of the utmost importance.

We therefore extend our holding in Jolicoeur, supra, to hold that, in cases where a claimant has suffered two separate compensable injuries which have contributed to cause a disability, and liability for that disability can be apportioned between those injuries by the trial commissioner, said apportionment may also be extended to the liability imposed on the Second Injury Fund by § 31-349. Because the commissioner has not made a specific finding as to the proper percentage of apportionment, we must remand this case for such a determination. This board does not have the power to make factual findings, even where the evidence appears uncontradicted. Uva v. Valleries Transportation Service, Inc., 13 Conn. Workers’ Comp. Rev. Op. 106, 108, 1625 CRB-7-9-31 (Jan. 31, 1995). Here, the commissioner found that Liberty agreed to reimburse Crawford for 70 percent of its payments, in accordance with Dr. Schutzer’s medical opinion. However, we can not be sure that the terms of the agreement likewise encompass the Fund. The trial commissioner is the one who should ultimately determine whether to apply this agreement, or whether to make additional findings based on other evidence.

The trial commissioner’s decision is reversed and remanded for further findings.

Commissioner Amado J. Vargas concurs.

MICHAEL S. MILES, COMMISSIONER. I dissent. Section 31-349 does not contain any provision for the apportionment of the liability for a second injury when it is transferred to the Second Injury Fund. Rather, § 31-349 specifically provides that when the statutory criteria for transfer have been met, “(t)hereafter all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund.” (emphasis added). The Connecticut Supreme Court “has consistently stated that ‘if the language of the statute is clear and unambiguous, it is assumed that the words themselves express the intention of the legislature and there is no room for judicial construction.”’ Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 395 (1993) (citations omitted).

I find the language of § 31-349 regarding the transfer of “all responsibility” to the Second Injury Fund to be clear and unambiguous. The majority admits that the legislative history of § 31-349 provides no indication that the issue of apportionment was ever contemplated by the legislature. If the legislature had intended to include a provision for apportionment of the liability for a second injury which is transferred to the Fund, it certainly could have done so. In the absence of such a legislative provision, this tribunal should not “supply statutory language that the legislature may have chosen to omit.” Id. at 396.

For the above reasons, I respectfully dissent.

1 The claimant had an overall 30 percent permanent partial disability of her right hip, liability for which was apportioned between the two injuries. BACK TO TEXT

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