CASE NO. 3377 CRB-1-96-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
DECEMBER 11, 1997
TRANSAMERICA INSURANCE CO.
ST. PAUL INSURANCE CO.
AMERICAN MUTUAL INSURANCE/CONNECTICUT INSURANCE GUARANTY ASSOCIATION
The claimant was represented Patrick Tomasiewicz, Esq., Fazzano, Tomasiewicz & Dewey, 433 South Main St., West Hartford, CT 06110.
The respondent employer and Transamerica Insurance were represented by Colette Griffin, Esq., Sizemore, Forino & Griffin, One Century Tower, 265 Church St., New Haven, CT 06510-7011.
The respondent employer and St. Paul Insurance were represented by Timothy G. Zych, Esq., Smith, Ketainek, Zito & Musco, 9 Washington Ave., Suite 3-A, P. O. Box 5035, Hamden, CT 06518-0035.
The respondent-appellant CIGA was represented by David A. Kelly, Esq., Montstream & May, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033.
This Petition for Review from the July 3, 1996 Finding and Award of the Commissioner acting for the First District was heard April 4, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.
JESSE M. FRANKL, CHAIRMAN. The respondent Connecticut Insurance Guaranty Association (CIGA) has petitioned for review from the July 3, 1996 Finding and Award of the Commissioner acting for the First District. It raises numerous issues on appeal, including an evidentiary ruling, a challenge to the sufficiency of the evidence, several legal issues pertaining to Title 38a of the Connecticut General Statutes, and an award of interest and attorney’s fees that the trier made against CIGA. We affirm the trier’s decision in part, but remand for additional findings on two separate issues.
The general background of this claim is relatively straightforward. The claimant suffered four compensable injuries to his back during his years of employment with Enfield Ford. Three separate insurers were on the risk for these four injuries: St. Paul Fire and Marine for a 1977 injury, American Mutual for a 1986 injury, and TIG for August 1992 and February 1994 injuries. In July of 1994, the claimant’s treating physician, Dr. Mazzara, opined in a report that the claimant had a 12% permanent partial disability of the lumbar spine. He reviewed his notes, and decided that 40% of the impairment was due to the 1977 injury, another 40% to the 1986 injury, and the remaining 20% to the 1992 injury. No permanency was assigned to the 1994 injury. The commissioner found in accordance with this opinion in his Finding and Award.
Both St. Paul Fire and Marine and TIG entered into agreements with the claimant accepting their respective portions of the permanency. American Mutual, however, became insolvent sometime after the 1986 injury pursuant to § 38a-838 C.G.S., and CIGA became obligated to the extent of its covered claims under §§ 38-838 and -841 C.G.S. See Hunnihan v. Mattatuck Mfg. Co., 16 Conn. Workers’ Comp. Rev. Op. 72, 2297 CRB-5-95-2 (Oct. 30, 1996). Because CIGA refused to pay its apportioned share of the permanency, the trier found that it had unduly delayed payment of benefits in this case, and ordered CIGA to pay interest of 12% per annum and $3,500 in attorneys’ fees to the claimant’s attorney pursuant to § 31-300 C.G.S., along with their 40% share of the 12% permanency award. CIGA has filed an appeal from that decision.
The first issues we will address in this appeal are those involving the CIGA Act itself. CIGA initially contends that this Commission lacks jurisdiction to rule on a matter involving Chapter 704a, as a commissioner under the Workers’ Compensation Act is empowered only to “hear all claims and questions arising out of [Chapter 568]” pursuant to § 31-278 C.G.S. We do not agree. As we recently discussed in Hunnihan, supra, § 31-355(e) C.G.S. specifically assigns liability for payments required under the Act from an insolvent insurer to CIGA. This clearly gives the commissioner the power to order CIGA to assume such liability. See also Versage v. Kurt Volk, Inc., 11 Conn. Workers’ Comp. Rev. Op. 253, 258 n.7, 1313 CRD-3-91-10 (Nov. 17, 1993) (CRB can interpret CIGA if the core issue in a case is a workers’ compensation question).
CIGA also argues that the alleged injury is not a “covered claim” pursuant to § 38a-836(6) because it is an amount due to an insurer as subrogation recovery or otherwise pursuant to § 31-299b C.G.S. apportionment. As we discussed in Hunnihan, however, apportionment under § 31-299b is not based on the contractual rights of subrogation or indemnity, but on actual firsthand liability as the primary workers’ compensation insurer at the time of a claimant’s injury. This exception to “covered claim” does not apply to apportionment situations under § 31-299b. Furthermore, the trial commissioner ruled in this particular case that permanency was being apportioned based on the liability for the consequences of specific injuries on specific dates and not on apportionment for periods of repetitive trauma pursuant to § 31-299b. See Thomen v. Turri Electric, 11 Conn. Workers’ Comp. Rev. Op. 299, 302, 1324 CRD-5-91-10 (Dec. 23, 1993). Thus, this legal argument is inapplicable to the facts of this case.
It follows, therefore, that the claimant had no recourse under another insurance policy for this portion of his permanency within the meaning of § 31-345 C.G.S., which requires a claimant to exhaust his rights under another policy before pursuing relief against CIGA based on coverage by an insolvent insurer. There is no showing that the employer had insurance with more than one company for its workers’ compensation liability at the time of the 1986 injury. Further, we reiterate that apportionment under § 31-299b is based on liability for actual injurious exposure, and not on an artificial apportionment scheme like § 31-349. Thus, even if this case was about § 31-299b apportionment, American Mutual would have been the only insurer on the risk at the time of the relevant injurious exposure.
The remaining issue under the CIGA statute concerns the timeliness of the notice of claim. Pursuant to § 38a-841(1)(a)(ii)(B), CIGA is “in no event . . . obligated for any claim filed with the association after the expiration of two years from the date of the declaration of insolvency.” It appears to be undisputed that American Mutual became insolvent on March 9, 1989. Two years from that date is March 9, 1991. As the claimant did not file a Form 30C in the current action until September 1992, it would appear at first glance that CIGA could not have been notified of this action within two years of American Mutual’s declaration of insolvency. However, the trial commissioner did not make a finding as to when notice was provided to CIGA in this case.
As this board does not have the power to make factual findings on review, we have no choice but to remand this matter to the trial commissioner for findings on this issue. Assuming that he indeed finds that notice was not provided within the two-year period, a difficult question will be raised. Section 38a-841(1)(a)(ii)(B) appears to be absolute in its terms. Yet, we have held that the impossibility of timely notice creates an exception to the otherwise absolute Second Injury Fund notice period under § 31-349 C.G.S., and it is arguable that similar reasoning should apply here. See, e.g., Jaworski v. A.B. Chance Co., 3006 CRB-3-95-2 (decided Jan. 6, 1997). It would certainly create a hardship upon this claimant if he was unable to collect a portion of his permanency award because all potentially liable parties were exonerated from paying benefits. This also would contradict the purpose of the CIGA Act, which is to avoid financial loss to Connecticut residents because of insurance company insolvency. See Hunnihan, supra. Because the discussion of this issue in this case has been very limited to this point, we believe that it would be appropriate for all parties to address this topic for the benefit of the trial commissioner in making further findings on remand.
CIGA’s next argument is that the trier erred by failing to admit into evidence the deposition of Dr. Mazzara, the treating physician, while admitting the records of his treatment. The transcripts show that, just prior to the formal hearing in which Dr. Mazzara’s reports were admitted into evidence, the attorney for TGI had told the other parties that she was going to depose the doctor. The deposition was to take place a week after that hearing. May 2, 1996 Transcript, p. 9; July 20, 1995 Transcript, p. 84. However, that deposition was canceled at the doctor’s request. It was not rescheduled before the September 28, 1995 formal hearing, at which CIGA’s counsel requested the opportunity to depose Dr. Mazzara so that he could cross-examine him regarding his theory of apportionment. In the alternative, counsel requested that Dr. Mazzara’s reports be stricken from the record. Transcript, p. 38-39.
The attorneys for the other parties objected strenuously, arguing that CIGA could have deposed the doctor at any time over the last year or so, but had simply waited until the last minute. Id., p. 39-40. They stressed that CIGA’s counsel had not attempted to renotice the deposition after it was canceled in July, and had not indicated any interest in doing so until the hearing itself. The trial commissioner decided that CIGA had already been given sufficient opportunity to take the deposition, and denied their request to hold the record open for a deposition of Dr. Mazzara and their alternate request to strike his reports from evidence. Id., p. 49-50. Apparently, CIGA went forth and deposed Dr. Mazzara anyway, and attempted to introduce that deposition into evidence at the pro forma hearing to close the record on May 2, 1996. The trier stood by his prior ruling, and declined to reopen the record. Transcript, p. 12.
First, we note that CIGA failed to mark the deposition of Dr. Mazzara as an exhibit for identification when the trier declined to admit it as a full exhibit. They also have not filed a formal Motion to Submit Additional Evidence. Thus, we cannot take notice of the existence of that document at this stage of the proceedings, nor can we refer to its contents. Second, the trier controls the introduction of evidence in workers’ compensation proceedings pursuant to § 31-298 C.G.S. He determined as a matter of fact that CIGA could have cross-examined Dr. Mazzara of its own volition, but simply failed to do so during the pendency of the proceedings. A party is required to act with due diligence in order to take advantage of its own due process rights. Giovino v. West Hartford, 14 Conn. Workers’ Comp. Rev. Op. 74, 1912 CRB-1-93-12 (May 12, 1995). We cannot say that the trier’s ruling regarding Dr. Mazzara’s deposition was erroneous under these facts.
We also disagree with CIGA’s contention that the reports of Dr. Mazzara do not offer a medical opinion that establishes proportionate liability within a reasonable degree of medical probability. The trier found Dr. Mazzara’s 12% permanent partial disability rating and his apportionment of liability among the four claimed injuries “well-founded, reasonable, and persuasive.” That, of course, is a factual issue for the trier’s determination. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997). As long as the substance of Dr. Mazzara’s testimony sufficiently stated his opinion with reasonable certainty, the trier would be justified in relying on it. Smith v. UTC/Pratt & Whitney, 3134 CRB-3-95-6 (decided April 4, 1997).
Although the doctor stated that it is “difficult if not impossible to assign a percentage to each specific event in an individual who has multiple and recurrent episodes and re-injuries to his lower back,” he went on to say that, from reviewing his notes, he was able to reach an opinion based on the claimant’s past symptoms regarding the proper percentages of apportionment. Claimant’s Exhibit G. The trier could logically have interpreted this to mean that, as a general rule, such apportionment is difficult, but that Dr. Mazzara was able to reach a satisfactory conclusion from the evidence here. It would not be proper for us to assume otherwise on review, given the degree of deference we are required to give to a trier’s findings. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).
The trier was entitled to place greater weight on the doctor’s diagnosis regarding apportionment than he did on the preceding paragraph of his report. Nasinka v. Ansonia Copper & Brass, 13 Conn. Workers’ Comp. Rev. Op. 332, 335-36, 1592 CRB-5-92-12 (April 27, 1995). This is especially true in a case such as this one, where the level of diagnostic certainty that a doctor can reach regarding specific percentages of causation is diminished by the difficulty of separating the causal factors. Given the circumstances here, and the information available to him, we believe that Dr. Mazzara stated his opinion with a sufficient degree of medical probability to satisfy the legal standard of proof.
CIGA’s final claim of error is that the commissioner erred in awarding attorney’s fees and interest against it. The trier found that CIGA had “refused to pay its proportionate share of the permanency, thus resulting in the need for the protracted legal proceedings in this case.” Finding and Award, ¶ 9. He also found that there was undue delay on CIGA’s part resulting in a postponement of benefits due the claimant and a need for numerous informal, pre-formal and formal proceedings. Id., ¶ 12. Thus, he awarded 12% interest per annum on CIGA’s share of the permanency award dating back to the date of Dr. Mazzara’s evaluation, as well as $3,500 in attorney’s fees.
Section 31-300 allows a trier to award a reasonable attorney’s fee and twelve percent interest where an insurer has unduly delayed payments of compensation through its own fault or neglect. The commissioner has wide discretion to make such an award. Artkop v. East Coast Office Systems, Inc., 15 Conn. Workers’ Comp. Rev. Op. 419, 421, 2252 CRB-2-94-12 (August 29, 1996). Although there is a finding of undue delay here, there is no subordinate finding of fault or neglect on CIGA’s part. CIGA strenuously argues that none of the delays in this case were its fault, and claims that unpaid medical bills cited by the claimant were TIG’s responsibility. Perhaps undue delay could be inferred from the above-cited paragraphs in the trier’s decision. However, as we are already remanding this case for a finding on the date notice was sent to CIGA under § 38-841, we also request that the trial commissioner articulate his findings regarding the nature of CIGA’s undue delay in this case and the incidents of its fault and neglect.
The trial commissioner’s decision is affirmed in part, but is also remanded for further findings on the two unsettled issues.
Commissioners James J. Metro and John A. Mastropietro concur.