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Simmons v. UTC/Sikorsky Aircraft Div. et al.

CASE NO. 3904 CRB-04-98-09

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 17, 1999

VERLETHA SIMMONS

CLAIMANT-APPELLEE

v.

UTC/SIKORSKY AIRCRAFT DIV.

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

and

U.S. SURGICAL CORP.

EMPLOYER

and

GUARANTY FUND MANAGEMENT SERVICES

INSURER

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Steven Cousins, Esq., Cousins & Johnson, 2563 Main Street, Stratford, CT 06497.

The respondents UTC/Sikorsky Aircraft Div. and Liberty Mutual were represented by Brian Prindle, Esq., 72 Bissell Street, Manchester, CT 06040-5304.

The respondents U.S. Surgical Corp. and Conn. Ins. Guaranty Fund were represented by Kevin Blake, Esq., Cotter, Cotter & Sohon, P.C., 500 Boston Post Road, Milford, CT 06460.

This Petition for Review from the September 17, 1998 Finding and Award of the Commissioner acting for the Fourth District was heard April 30, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent Connecticut Guaranty Insurance Association (CIGA), which has assumed responsibility under § 31-355(e) C.G.S. for the workers’ compensation liability of the now-defunct Western Employers Insurance Company, has petitioned for review from the September 17, 1998 Finding and Award of the Commissioner acting for the Fourth District. It contends on appeal that the trier erred by apportioning to it part of the instant claim, as full liability should have been assigned to the respondent insurer Liberty Mutual under Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438 (1997). We affirm the trial commissioner’s decision.

The underlying facts of this case are not disputed. The claimant sustained two separate compensable injuries to her lungs: one on January 14, 1980, while working for UTC/Sikorsky Aircraft, and one on December 3, 1985, while working for U.S. Surgical. On the respective dates of injury, each employer carried workers’ compensation insurance as required by § 31-284; the former employer with Liberty Mutual, and the latter with Western Employers. On September 16, 1987, two voluntary agreements were approved that apportioned liability for the claimant’s lung impairment between the two insurers. Subsequently, Western Employers became insolvent, and CIGA inherited the liability for its outstanding workers’ compensation claims under § 31-355(e).1

The claimant has continued to incur medical expenses for her compensable lung condition. CIGA refused to pay a proportionate share of those bills pursuant to the 1987 voluntary agreement on the ground that the aforementioned Hunnihan decision absolves CIGA of any responsibility to share expenses with another insurance company in a § 31-299b2 apportionment case such as this one. The trial commissioner disagreed, ruling that CIGA was directly responsible to the claimant for a certain percentage of her medical bills, rather than indirectly responsible pursuant to § 31-299b, and that Hunnihan was consequently inapplicable to this case. He held CIGA liable for payment of its share of the claimant’s medical bills, which decision CIGA has appealed to this board.

Section 38a-838(6) requires CIGA to assume responsibility for unpaid claims that arise out of and that are within the coverage of certain insurance policies, but excludes from the definition of “covered claim” any amount due an insurance company as a subrogation recovery or otherwise. In Hunnihan, our Supreme Court held that the term “subrogation recoveries or otherwise” includes reimbursement due workers’ compensation insurers who are administering claims pursuant to § 31-299b. “Although we realize that § 31-299b, by placing initial liability on the last insurer in circumstances where a compensable injury is the responsibility of several insurers, may create a hardship for the last insurer in the event that a prior insurer has become insolvent, we believe that the conclusion we reach reflects the result intended by the legislature.” Id., 453-54. The Court reached this decision after analyzing the structure of the guaranty association, which is a nonprofit legal entity that is funded by levying an assessment on all insurers licensed to transact business in this state—an assessment that is, in turn, passed on to policyholders pursuant to § 38a-849. “The exclusion of claims by insurers leaves the risk of insurer insolvency on the insurance industry. The result is that policyholders, who in effect fund the association, pay only for protection for fellow policyholders and claimants in the event that an insurer becomes insolvent.” Id., 452.

CIGA argues that the instant claim is functionally identical to the one in Hunnihan, and that we should likewise relieve the association of liability in this matter. In its brief, CIGA asserts that, despite the discrete dates of injury listed in the two voluntary agreements, this is actually a repetitive trauma claim caused by continuous exposure to asthma-inducing substances at work. Accordingly, the correct procedure would have been for one of the insurance carriers to administer the claim under § 31-299b, with the other reimbursing the administrator for its pro rata share. By so arguing, CIGA attempts to distinguish this case from Pantanella v. Enfield Ford, 3377CRB-1-96-7 (Dec. 11, 1997), in which the claimant suffered four distinct compensable injuries to his back, and this board held that Hunnihan did not apply because liability had been apportioned by the trial commissioner “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.” CIGA insists that “[t]here is no rational basis, upon the undisputed material facts, for characterizing this claim as anything other than a repetitive trauma and/or an occupational disease claim.” Brief, p. 12.

The appellant makes an interesting argument, but it is unsupported by the record available to this board on review. There are no exhibits, and thus no medical reports in evidence detailing the specific symptoms suffered by the claimant or the etiology of her two accepted injuries. There is no transcript, and no expert testimony. Thus, we have no reason to question the fact implied by the existence of these two separate voluntary agreements: that the claimant suffered distinct injuries on two separate dates, resulting in a total 15% permanent partial disability of her lungs. The Motion to Correct did not explicitly propose that the trial commissioner change his findings to reflect that the claimant’s injury was a single period of repetitive trauma divisible under § 31-299b, rather than the two separate injuries described in ¶¶ 2-3 of his decision. The issue was briefly raised on page 5 of CIGA’s trial brief, but the trier does not appear to have been persuaded by this cursory argument. In short, we have no basis upon which to conclude that, as a matter of law, § 31-299b applies to this case. The voluntary agreements describe two separate injuries, and liability is being shared by the parties pursuant to their own voluntary division of responsibility. CIGA has inherited its liability from the agreement made by the now-insolvent Western Employers Insurance Company, and is directly liable to the claimant for 37.5% of her benefits.

The trial commissioner’s decision is hereby affirmed.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 Section 31-355(e) provides in relevant part that “whenever the employer’s insurer has been determined to be insolvent, as defined in section 38a-838, payments required under this section shall be the obligation of the Connecticut Insurance Guaranty Association pursuant to the provisions of sections 38a-836 to 38a-853, inclusive.” BACK TO TEXT

2 The relevant portion of § 31-299b states that, “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

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