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Estey v. Hartford Distributors

CASE NO. 2162 CRB-5-94-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 6, 1995

LLOYD ESTEY

CLAIMANT-APPELLEE

v.

HARTFORD DISTRIBUTORS

EMPLOYER

and

AETNA CASUALTY & SURETY

INSURER

RESPONDENTS-APPELLANTS

and

EBI

INSURER

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Robert A. Teitenberg, Esq., 902 South Quaker Lane, West Hartford, CT 06110, who did not appear at oral argument.

The respondents Hartford Distributors and Aetna were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

The respondents Hartford Distributors and EBI were represented by Christine Murphy, Esq., McGann, Bartlett & Brown, 281 Hartford Trnpk., Vernon, CT 06066.

The Second Injury Fund was represented by Michael J. Belzer, Esq., Office of the Attorney General, 55 Elm St., Hartford, CT 06141-0120.

This Petition for Review from the September 20, 1994 Finding and Award of the Commissioner acting for the Fifth District was heard May 19, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents Hartford Distributors and Aetna (hereinafter referred to as Aetna) have petitioned for review from the September 20, 1994 Finding and Award of the Commissioner for the Fifth District. In that decision, the trial commissioner found that the claimant had sustained compensable injuries to his back on March 13, 1986 and July 10, 1987. The trial commissioner apportioned the claimant’s resulting fifteen percent permanent partial disability between the two carriers that insured the employer at the time of the accidents. Specifically, the commissioner assigned twenty-five percent of the liability to EBI and seventy-five percent to Aetna. In its appeal, the insurer Aetna contends that the commissioner’s findings of fact require a larger apportionment of liability to EBI.

First, we will address the respondent EBI’s motion to dismiss the Fund’s appeal. The Fund filed its petition for review on October 11, 1994, more than ten days following the issuance of the trial commissioner’s Finding and Award on September 20, 1994. Thus, the Fund’s petition for review was not filed within the time limit prescribed by § 31-301(a) C.G.S., which states that “[a]t any time within ten days after entry of an award by the commissioner . . . either party may appeal therefrom to the compensation review board by filing in the office of the commissioner . . . an appeal petition . . . .” Moreover, the Fund has failed to file a brief in support of its appeal. Accordingly, we grant the motion to dismiss the Fund’s appeal. See Corona v. Uniroyal Chemical, Inc., 9 Conn. Workers’ Comp. Rev. Op. 105, 987 CRD-5-90-3 (March 13, 1991) (appeal dismissed due to untimely petition for review); see also Milardo v. Shuck Petroleum, 11 Conn. Workers’ Comp. Rev. Op. 279, 1559 CRB 8-92-11 (Nov. 22, 1993) (appeal dismissed where brief untimely filed).

The trial commissioner found the following relevant facts. On March 13, 1986, the claimant sustained a compensable injury to his back while employed by Hartford Distributors. At that time, the employer was insured by EBI. After returning to his usual work with Hartford Distributors, the claimant suffered another injury to his back on July 10, 1987, at which time the employer was insured by Aetna. In July of 1988, Dr. Becker performed spinal surgery. Dr. Becker opined that the claimant had a fifteen percent permanent partial disability of his back. Dr. Becker further opined that the claimant suffered from a preexisting degenerative disc disease which preexisted the March 13, 1986 injury, and that the preexisting disease constituted one-half of the cause of his permanent partial disability. Dr. Becker concluded that the injuries which occurred on March 13, 1986 and July 10, 1987 were equally responsible for causing the remaining fifty percent of the permanent partial disability.

Initially, we note that § 31-299b1 is not applicable to this case. Specifically, § 31-299b is not applicable where two separate compensable traumatic injuries have occurred even though both injuries contributed to the claimant’s overall permanent disability. Thomen v. Turri Electric, 11 Conn. Workers’ Comp. Rev. Op. 299, 301-02, 1324 CRD-5-91-10 (Dec. 23, 1993). However, because the trial commissioner determined that the claimant’s two injuries were equally contributing causes of his permanent partial disability, apportionment was appropriate pursuant to common law doctrine as set forth in Mund v. Farmers’ Cooperative Inc., 139 Conn. 338 (1952). See Jolicoeur v. L.H. Duncklee Refrigeration, 1842 CRB-2-93-9 (decided May 3, 1995).

In its appeal, Aetna argues that the trial commissioner was required to apportion seventy-five percent liability to EBI and twenty-five percent to Aetna. We agree. 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); Prioleau v. Larosa Construction Co., 12 Conn. Workers’ Comp. Rev. Op. 140, 1432 CRB-8-92-6 (April 7, 1994). Accordingly, when the injury occurred on March 13, 1986, the employer’s insurer, EBI, was liable for the permanent partial disability attributable to the injury together with the permanent partial disability attributable to the preexisting degenerative disc disease. Thus, the trial commissioner should have held EBI responsible for fifty percent of the disability attributable to the claimant’s preexisting condition in addition to the twenty-five percent attributable to March 13, 1986 injury. Accordingly, EBI is responsible for seventy-five percent of the claimant’s permanent partial disability.2 The trial commissioner determined that twenty-five percent of the claimant’s disability was caused by the July 10, 1987 injury. Thus, Aetna is responsible for twenty-five percent of the permanent partial disability.

The trial commissioner’s decision is reversed and the case is remanded to the Fifth District to enter an order of apportionment in accordance with the above.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

1 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.” BACK TO TEXT

2 Section 31-349 is applicable where a preexisting impairment has materially increased the claimant’s overall disability. See Levanti, supra. In the instant case, EBI’s liability apparently did not reach 104 weeks and thus was not transferable. However, the Fund did agree to a transfer of the claim from Aetna pursuant to § 31-349. BACK TO TEXT

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