State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Hatt v. Burlington Coat Factory

CASE NO. 4326 CRB-2-00-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 19, 2001

MARY ANN HATT

CLAIMANT-APPELLEE

v.

BURLINGTON COAT FACTORY

EMPLOYER

and

FIREMAN’S FUND INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

and

ATLANTIC MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Stuart Einhorn, 88 Sherman Street, Norwich, CT 06360.

The respondent employer and Fireman’s Fund were represented by Lori Durocher, Esq., Genovese, Vehslage & Chapman, 500 Enterprise Drive, Rocky Hill, CT 06067.

The respondent employer and Atlantic Mutual were represented by Michael Finn, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the December 4, 2000 Finding and Award of the Commissioner acting for the Second District was heard June 22, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent employer and its insurer Fireman’s Fund have petitioned for review from the December 4, 2000 Finding and Award of the Commissioner acting for the Second District.1 They contend on appeal that the trial commissioner improperly apportioned 75% of the liability for medical and indemnity benefits in the instant case to Fireman’s Fund, which was on the risk at the time of the claimant’s first injury, rather than assigning all liability to Atlantic Mutual, the carrier on the risk at the time of the claimant’s second injury. The respondent employer and Atlantic Mutual, meanwhile, have moved to dismiss the instant appeal on the ground that it was filed in an untimely manner. We deny the Motion to Dismiss, and reverse the decision of the trial commissioner on the merits.

The claimant was employed by the respondent Burlington Coat Factory as a department manager on February 19, 1988, when she sustained a compensable injury to her left foot after stepping on the base of a clothing rack. This has been established by an approved voluntary agreement dated January 24, 1990. At the time of that injury, her employer carried its workers’ compensation insurance with the respondent Fireman’s Fund. The claimant returned to work about two weeks later, despite continuing to experience pain in her left foot. The pain gradually increased over time. She was diagnosed with a severe foot strain on June 13, 1989 by Dr. Jones, who observed a pronation deformity and prescribed an arch support. X-rays showed no evidence of a fracture or any other bone or joint abnormality. The doctor rated her with a 10% disability of the left foot.

By 1995, the claimant’s left foot pain was significantly worse, and required improved orthotics to allow her to continue her work. Dr. Jones increased her disability rating to 25%, and predicted that she would need corrective surgery sometime during the next five or ten years. He did not believe that surgery was yet warranted when he saw her in October of 1997. Fireman’s Fund then sent her to an independent medical examiner, Dr. Santoro, who practiced orthopedics. The claimant later adopted him as her treating physician. He reported on May 19, 1998 that the claimant had a progressive deformity of her left foot, and noted that she spent eight hours per day at her employer’s store walking on hard surfaces with very little opportunity for rest. The normal alignment of her right foot contrasted with the profound mid-foot drop on her left foot, and she was developing increasing discomfort, deformity and flattening of the arch. He opined that her foot condition could have come about from either a single trauma or a progressive degenerative process leading to arthritis.

The claimant filed a Form 30C on August 28, 1998, claiming that continued exposure to her occupation following her left foot injury caused symptoms in her right foot, and increased symptoms in her left foot. The date of injury listed was May 19, 1998. At that time, the employer carried its workers’ compensation insurance coverage with the respondent Atlantic Mutual. In Dr. Santoro’s opinion, 75% of the responsibility for the claimant’s current left foot problems stemmed from her February 1988 injury, with the remaining 25% due to her subsequent work activities, which played a material role in the worsening of her condition and her development of arthritis. The claimant also saw Dr. Selden, an orthopedist, at the request of Atlantic Mutual. He agreed with Dr. Santoro’s diagnosis of dysfunction of the left posterior tibial tendon, and thought surgery would be a reasonable method of treatment. He assigned 50% of the responsibility for her left foot condition to the 1988 injury, and the other half to the aging process. He did not believe that her post-injury work activity contributed to her current condition. Dr. Santoro performed surgery on March 10, 2000, and the claimant was disabled for a period of time thereafter.

The trial commissioner concluded that Dr. Santoro was in the best position to determine the etiology of the claimant’s foot problems, and found that the claimant suffered a February 19, 1988 injury that was followed by repetitive trauma at her workplace, culminating in a cumulative injury on May 19, 1998. He concluded that liability for the claimant’s post-surgery disability should be shared in the same manner as Dr. Santoro attributed its cause: 75% to the first injury, and 25% to the second injury. He then concluded that, pursuant to § 31-299b, Atlantic Mutual should be the primary payer of compensation and medical expenses, with Fireman’s Fund reimbursing it for 75% of those amounts. Fireman’s Fund has filed a petition for review from that decision.

We first address the Motion to Dismiss that was filed by Atlantic Mutual on December 29, 2000. At the time of the trial commissioner’s December 4, 2000 decision, a party was entitled to appeal a trial commissioner’s award within ten days of the date the decision was sent, pursuant to § 31-301(a) C.G.S.2 Fireman’s Fund filed a petition for review with the Second District office on December 22, 2000, and a second petition for review on January 8, 2001. Fireman’s Fund contends, however, that it did not receive meaningful notice of the trier’s Finding and Award during the ten days following the entry of the commissioner’s award, and that it should accordingly be permitted to pursue its appeal. Under Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581 (1999), a party who asserts that it did not receive notice of a trier’s decision during the ten-day appeal period must be given the opportunity to show that, through no fault of its own, notice was received after the ten days had elapsed. “To bar an appeal by [such] a party . . . would be inconsistent with the right to appellate review expressly granted to an aggrieved party under § 31-301(a).” Id., 589.

It appears that, in sending the appellants notice of the trier’s award on December 4, 2000, this Commission mailed the requisite certified letter to Genovese, Vehslage & LaRose, 915 Scott Swamp Road, P.O. Box 4053, Farmington, CT 06034-4053. That was the firm’s address through the end of February 2000. However, notices for several hearings that were held afterward were sent to the firm’s new address at 500 Enterprise Drive, Rocky Hill, CT 06067. This commission had evidently been informed of the address change by that law firm, and had begun addressing its hearing notices accordingly as of March 1, 2000. Unfortunately, during the preparation of the trier’s Finding and Award for formal issuance and mailing, this Commission reverted to using the firm’s previous address. This error resulted in a substantial delay in the delivery of the certified letter containing the trier’s decision; while other parties received their copies of the decision on December 5 or December 6, 2000, the respondent-appellants did not receive theirs until January 3, 2001.

However, the appellants did take some action on their own behalf in the interim. On Wednesday, December 13, 2000, the law office of Genovese, Vehslage and LaRose communicated with the Second District office in an attempt to learn whether a decision had been issued. At approximately 2:30 p.m. on that day, an employee at the district office faxed a copy of the Finding and Award to that firm. The appellants contend that, at this point, they would have had less than two hours to digest the decision and file a timely petition for review under § 31-301(a), which would have made their opportunity to appeal effectively meaningless given practical time necessities. In fact, the tenth day after December 4, 2000 was Thursday, December 14, 2000, and any party receiving timely notice of the decision would have been required to file its appeal by the end of that business day, rather than the prior business day. Grimes v. State/Dept. of Mental Health and Addiction Services, 3832 CRB-4-98-6 (July 22, 1999). We need not decide, therefore, what equitable implications a two-hour appeal window would have on our definition of the appeal period. See Kudlacz, supra, 250 Conn. 590, quoting Kudlacz, 49 Conn. App. 1, 12 (1998) (Spear, J., dissenting).

With regard to a one-day appeal period, Atlantic Mutual argues that the appellants’ receipt of the decision by fax on January 13, 2001 constituted meaningful notice under § 31-301(a) and the applicable caselaw, and that a petition for review could easily have been filed on the next business day. We need not reach the issues of equity inherent in the latter assertion. Under § 31-321, “unless the circumstances of the case or the rules of the commission direct otherwise, any notice required under [the Act] to be served upon an employer, employee or commissioner shall be by written or printed notice, service personally or by registered certified mail addressed to the person upon whom it is to be served at his last-known residence or place of business.” Our Supreme Court’s recent decision in Kudlacz implicitly contemplates the delivery of notice via certified mail or other equivalent service under § 31-321 as a necessary component of meaningful notice for the purpose of determining appeal periods under § 31-301(a). Not only is § 31-321 cited twice in footnotes; Kudlacz, supra, 583-84 n.4, 590 n. 13; but the “presumption of timely notice” mentioned in the text is dependent on the stated presumption that “it will be the rare case in which notice sent to the parties by the commissioner via certified mail fails to arrive at an aggrieved party’s address within ten days of the date that it was sent.” Id., 590.

Where a method of statutory notice is prescribed by law, this board would risk violating the due process rights of parties were we to hold that an “unofficial” and less formal type of notice, e.g., transmission of a copy by fax machine, was also sufficient to trigger a responsive obligation of the party receiving such “lesser” notice. For example, where a claimant fails to file a Form 30C or its substantial equivalent as required by § 31-294c, an employer’s right to contest liability cannot be curtailed by a Motion to Preclude, even if the employer had actual knowledge of the injury and provided medical treatment. Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-11 (Dec. 19, 2000). Though such actions by the employer may be sufficient to protect the claimant’s right to file a claim, they are not the same as official statutory notice via Form 30C, and do not trigger the respondents’ defensive responsibilities. Similarly, the movant here seeks to have this board declare that the appellants’ appeal rights lapsed one day after receiving a faxed copy of a trial commissioner’s decision, which is another form of alternate notice. We decline to hold that a party’s right of appeal should be lost in such a manner, even if we would allow a party to protect its own rights by faxing a document where personal delivery was impracticable and a filing deadline was imminent. Therefore, Atlantic Mutual’s motion to dismiss the appeal of Fireman’s Fund is denied.

The merits of this case involve a factually straightforward apportionment issue that becomes complex due to the contours of the relevant law. The trial commissioner sought to give legal effect to a medical opinion that ascribes 75% of the responsibility for the claimant’s foot problems to her injury of February 19, 1988, and the other 25% to her subsequent work activities through May 19, 1998. This 75-25 split applies to a permanent partial impairment rating, temporary total incapacity benefits, and the cost of the claimant’s medical bills, including her surgery on March 10, 2000. The trier’s approach was to order the insurer on the risk as of May 19, 1998, Atlantic Mutual, to take initial responsibility for administering the claim as per § 31-299b C.G.S., with the right to seek reimbursement for 75% of the monies paid from Fireman’s Fund, the insurer on the risk as of February 19, 1988. As a practical matter, this order would seem to equitably distribute liability between the parties.

Section 31-299b, however, is designed to address single injuries, such as occupational diseases or repetitive traumas, that consist of a period of prolonged exposure spanning a time continuum involving multiple employers or insurers.3 Kelly v. Dunkin’ Donuts, 4278 CRB-4-00-8 (Nov. 1, 2001); Thomen v. Turri Electric, 11 Conn. Workers’ Comp. Rev. Op. 299, 301-302, 1324 CRD-5-91-10 (Dec. 23, 1993). It cannot be used to apportion liability among two or more entirely separate and identifiable injuries. Id.; Simmons v. UTC/Sikorsky Aircraft Div., 3904 CRB-4-98-9 (Sept. 17, 1999). The instant case does not concern one continuous period of repetitive trauma between 1988 and 1998; rather, it concerns a single accidental foot injury on February 19, 1988, followed by a period of repetitive trauma stretching over the next ten years that worsened the condition of that foot. This is very clear from Dr. Santoro’s opinion, which the trier explicitly relied upon. Respondents’ Exhibit 1, p. 17. There is no indication that the second injury is merely a recurrence of the first, either, thus making Fireman’s Fund directly liable for the claimant’s current medical condition. See Cote v. Pratt & Whitney Aerospace Co., 13 Conn. Workers’ Comp. Rev. Op. 243, 1636 CRB-2-93-2 (April 17, 1995). According to Dr. Santoro, the claimant’s continued work activities from 1988 through 1998 cumulatively and equally brought about a new repetitive trauma injury that is 25% responsible for the claimant’s ultimate disability.4 Id., p. 22. Section 31-299b thus cannot be applied in the manner that was decreed by the trier, as the claimant’s first and second injuries are legally distinct based upon the facts found.

Atlantic Mutual contends that, even if § 31-299b does not apply to the instant set of facts, the remedy of apportionment is still available under § 31-349 C.G.S. and the residual law as discussed in Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635 (1999), and Mund v. Farmer’s Cooperative, Inc., 139 Conn. 338 (1952). With regard to this argument, we cannot easily resolve the viability of Mund’s shared liability theory and the recent cases that have attempted to apply this theory. As noted above, the law surrounding this issue is complex, in large part due to varied inferences that one can draw from the patchwork quilt of legislation that has been woven around the subject of apportionment over the years. We begin our analysis by identifying three distinct positions regarding the division of liability among insurers that our Supreme Court marked long ago.

In Plecity v. McLachlan Hat Co., 116 Conn. 216 (1933), the Court addressed a situation in which a worker had been poisoned by mercury from 1926 to 1930, causing him to become disabled. Three different workers’ compensation insurers had been on the risk during that period, though all but the last few months of harmful exposure had occurred during the term of one policy. The Court held that the terms of each policy should not be read to make each insurer liable only for the portion of the incapacity that could be attributed to the period of employment covered by its policy, as this would impose on the employee “a heavy burden of proof which would not accord with the evident purpose of the [Act].” Id., 226. Instead, each insurer whose policy was in effect for any portion of the time during which the employment was a substantial factor in producing the poisoning would be liable to the employee for the entire amount of compensation awarded, “and in such a situation the award should be made against all insurers so liable.” Id., 226-27. The issue of contribution or apportionment rights among the various insurers was not at issue in those proceedings, and was not adjudicated.5

Shortly thereafter, the Court decided Mages v. Alfred Brown, Inc., 123 Conn. 189 (1937). In that case, the claimant had suffered an accidental injury to his spine on January 28, 1935, while in the employ of the Meeker Coal Company, and a second, unrelated injury to his left shoulder and back on January 18, 1936, while he was earning the same salary working at a light duty job for Alfred Brown, Inc. At the time of the second injury, the claimant had not fully recovered from the first injury, and was wearing a back brace. The Court explained that, under our law, compensation does not depend on the employee’s general health at the time of the injury. “If the injury is the cause of the disability, it is compensable even though such an injury might not have caused the disability if occurring to a healthy employee or even an average employee.” Id., 192, citing Fair v. Hartford Rubber Works Co., 95 Conn. 350 (1920) (one-eyed employee who sustained compensable injury destroying sight in remaining eye was entitled to total incapacity compensation). The opinion notes that the act had been amended to allow apportionment in cases of aggravated pre-existing disease6 and to limit permanent total incapacity compensation for a second injury to that which is due to the second injury alone. As the claimant would have been able to continue at his light duty work but for his second injury, the Court required the second employer to fully compensate the claimant’s present disability. Id., 194-95. “As regards the first employer, the second accident upon this finding is to be regarded as an intervening cause. A very different situation was before us in Plecity v. McLachlan Hat Co., [supra].” Id., 195.

The Court later distinguished Mages in Mund, supra, a case that involved a July 1946 disc rupture at L4-L5 and a June 1950 reopening of that rupture. The initial strain had healed slowly and painfully, and had left the claimant with a 15% permanent partial disability as of January 1950, by which time it had partially healed. Following the new June 1950 injury, the claimant had surgery. He recovered uneventfully, and returned to light duty without a reduction in pay in October 1950. The trier had found that the accidents were “equal, concurrent and contributing causes of the claimant’s disability since [June 1950], the second injury being superimposed upon and an aggravation of the condition remaining from the first injury,” and had directed both of the insurers to pay the claimant’s total disability award. In affirming that decision, the Court explained that the claimant’s second accident did not constitute an intervening cause as was the case in Mages, and that the instant circumstances more resembled Plecity insofar as both incidents had materially contributed to the claimant’s disability. The specific issue of apportionment between the insurers was not discussed beyond sustaining the trial commissioner’s conclusion that both were “equally liable.” Mund, supra, 345.

One might expect that these decisions would have laid the groundwork for future high court rulings concerning the apportionment of liability between insurers. This has not proven to be the case. At the time Mund was decided, the Second Injury Fund was still in its infancy, having been established in 1945 via Public Act No. 188, § 1. See Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635, 644 (1999). Its purpose was to prevent discrimination by employers against handicapped workers, and to relieve employers from the hardship of liability for those consequences of compensable injury not attributable to their employment. Jacques v. H. O. Penn Machinery Co., 166 Conn. 352, 355-56 (1974). Circa 1953, the Fund was invoked only in limited cases where a claimant had previously incurred a permanent partial incapacity “by means of the total loss of, or the loss of use of one hand, one arm, one foot, one leg or one eye,” and had gone on to suffer another compensable injury that resulted in another permanent partial incapacity of that same type. In such cases, the employer at the time of the second injury was liable only for the part of the disability that was attributable to the second injury, with the Fund becoming responsible for the remainder afterward. As the facts of Mund dealt with a ruptured lumbar disc, they did not implicate a potentially transferable claim.

In 1957, however, the Fund was expanded to cover any employee who had previously incurred permanent partial incapacity, and whose second injury had resulted in a greater permanent total incapacity or permanent partial incapacity than he would have suffered without the pre-existing incapacity. This extension of the Fund’s reach meant that many multiple-injury apportionment debates would now pit the Fund against the insurance companies, rather than prompting insurers to directly oppose each other. To that end, a landmark conceptual change occurred in 1967, when state lawmakers implemented an arbitrary 104-week apportionment scheme between the second employer and the Fund that allowed an employee to receive compensation for “the entire amount of disability, including total disability, and necessary medical care . . . notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes.” This legislative approach to apportionment represented a departure from either of the ideas advanced in Mund and Mages, as it essentially approximated the amount of benefits attributable to the second injury in order to promote administrative convenience. Fimiani, supra, 646; Davis v. Norwich, 232 Conn. 311, 320-21 (1995). An amendment in 1979 restricted entitlement to “the entire amount of disability . . . less any compensation benefits payable or paid with respect to the previous disability . . . ,” thereby preventing duplicative recoveries. Fimiani, supra, 648. A further amendment in 1993 clarified that “compensation payable or paid with respect to the previous disability” was not limited to benefits paid under the aegis of Chapter 568. Id., 649. Finally, the most drastic revision appeared two years later: Public Act No. 95-277, which closed the Fund to all second injury claims based on injuries occurring after July 1, 1995.

During those years when the Fund was available as a vehicle for transferring liability for the majority of second injury claims, one discussion of the underlying law concerning apportionment stands out. In Lovett v. Atlas Truck Leasing, 171 Conn. 577 (1976), our Supreme Court reviewed the general rules concerning an accident that causes total disability in and of itself, notwithstanding a preexisting impairment. “The rule is that the employee is entitled to full compensation where the accident is a substantial factor in producing the resultant disability. ‘Apportionment’ between employer and employee exists solely by statute and is an exception to the rule. But even statutory apportionment is never relevant unless the pre-existing impairment was ‘an essential factor’ in causing the end result. The harshness of this rule has in recent times been mitigated by the adoption in most states of some form of second injury fund legislation whereby employer liability can be limited in certain circumstances as where an employee’s pre-existing permanent impairment, whether by prior accident, disease or congenital causes, combines with a second injury resulting in a materially and substantially greater disability.” Id., 582 (emphasis added).

On its face, this exposition of the law addresses the availability of apportionment between employer and employee. The general unavailability of such a split is understandable, as it would compromise the ability of the injured worker to obtain full compensation in the event of total disability. The humanitarian spirit of the Workers’ Compensation Act would be at odds with such a result. An apportionment of liability between two insurers in the event of two compensable injuries would not raise the same set of concerns; there, the chief fear would be that a claimant would be delayed in his quest for compensation because of litigation among competing insurers.

Yet, the second injury fund legislation cited in Lovett did not limit itself to apportioning liability in cases where the pre-existing disability was the result of a non-compensable phenomenon. It included all pre-existing injuries that combined with a second injury to produce a substantially greater disability, even if the first injury was itself compensable. Were this not the case, neither Public Act 79-376, § 80 nor Public Act 93-228, § 24 would have been needed to prevent double recoveries by claimants who had already been compensated for their previous permanent disabilities. In fact, the Court stated in Fimiani, supra, that Public Act 79-376 “was not intended to replace the statutory apportionment scheme under which: (1) the first 104 weeks of benefits for the second injury are attributable to the second injury and are the responsibility of the second employer; and (2) all subsequent benefits for the second injury are attributed to the first injury and are the responsibility of the fund.” Id., 650. The 1979 amendment merely created an additional deduction for prior payments. Significantly, the Court held in Fimiani that, under § 31-349(a), the second-injury employer is not entitled to a contribution from the first-injury employer during the first 104 weeks, nor is the Fund entitled to split liability with the first-injury employer after transfer. “All awards of compensation and all medical expenses” must be paid by the second injury employer, and then the Fund, under the statute. Id., 642-43 (emphasis in original).

Fimiani, of course, concerned a date of injury prior to July 1, 1995. In closing the Fund to second injury claims occurring after that date, the legislature did not repeal § 31-349 in its entirety, thereby removing all of its language from our General Statutes. Instead, much of the text was left intact, with the procedures for transfer to the Fund being revised in order to resolve claims that were still pending. The legislature shut down the Fund to new claims by adding subsection (d), which stated, “Notwithstanding the provisions of this section, no injury which occurs on or after July 1, 1995, shall serve as a basis for transfer of a claim to the Second Injury Fund under this section. All such claims shall remain the responsibility of the employer or its insurer under the provisions of this section.” Therefore, as it stands today, § 31-349(a) still provides:

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. For purposes of this subsection, “compensation payable or paid with respect to a previous disability” includes compensation payable or paid pursuant to the provisions of this chapter, as well as any other compensation payable or paid in connection with the previous disability, regardless of the source of such compensation.”

Unlike the provisions of § 31-349(b)-(f), which deal exclusively with the apportionment and transfer processes between the Fund and the second-injury employer, § 31-349(a) is generally applicable even though the Fund has been closed to new transfers. Because the legislature had the opportunity to remove any residual language concerning second injury compensation but chose not to do so, we are compelled to infer that they intended not to repeal the remaining text of § 31-349. As a result, we cannot decide this case without applying the language of the statute.

As noted above, the Court’s discussion in Fimiani identifies separate schemes in § 31-349. First and foremost, the 104-week apportionment scheme arbitrarily divided liability at 104 weeks, and assigned responsibility to the Second Injury Fund for the portion of liability deemed attributable to the first injury. This scheme relieved the first employer from any liability at all for the later disability. That apportionment scheme has now been nullified by § 31-349(d). Given the legislative vitiation of their statutory context, it would seem unwise to pluck individual sentences from § 31-349(b) such as, “The employer by whom the employee is employed at the time of the second injury, or its insurer, 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,” and place great weight upon them. However, § 31-349(d) does state that “all such claims shall remain the responsibility of the employer or insurer under the provisions of this section.” (Emphasis added.) The most reasonable inference would be that the legislature meant to retain the part of § 31-349 that assigns liability in the first instance to the second-injury employer, with that same employer now assuming liability in the second instance as well. There is no clear indication that our lawmakers intended otherwise.

What plainly remains in force is the provision in § 31-349(a) that entitles a claimant to full compensation for the current disability, including total disability benefits, “less any compensation payable or paid with respect to the previous disability.” Such compensation would presumably have been paid, or continue to be payable, by the first-injury employer. Medical care, on the other hand, is solely the responsibility of the second-injury employer even though a substantial part of the disability is admittedly attributable to the prior injury. Thus, § 31-349(a) continues to require that, “in calculating the amount of benefits due the claimant, a deduction be taken for any permanent disability benefits the claimant already is entitled to recover for his first injury pursuant to §§ 31-308(b), 31-309 and 31-295(c).” Fimiani, supra, 651; see also, Mann v. Morrison-Knudsen/White Oak, 14 Conn. Workers’ Comp. Rev. Op. 79, 1918 CRB-1-93-12 (May 12, 1995); Prioleau v. Larosa Construction Co., 12 Conn. Workers’ Comp. Rev. Op. 140, 1432 CRB-8-92-6 (April 7, 1994) (permanency award may be reduced if pre-existing, ratable permanent partial impairment is due to workplace injury). This deduction has never been applied to temporary disability benefits, either total or partial, and it is expressly inapplicable to medical expenses.

During those instances when we have confronted this issue in the past, we have been receptive to the Mund philosophy. In Perrotti v. Portland Chemical, 8 Conn. Workers’ Comp. Rev. Op. 105, 836 CRD-8-89-3 (June 6, 1990), this board asked with respect to successive back injuries, “If all three injuries were equal contributing causes to the 1985 result, why would not Mund v. Farmers’ Cooperative, Inc. . . . be the applicable precedent? In that case responsibility for all compensation was apportioned equally.” Id., 107. Then, in Jolicoeur v. L.H. Duncklee Refrigeration, Inc., 14 Conn. Workers’ Comp. Rev. Op. 24, 1842 CRB-2-93-9 (May 3, 1995), we stated, “The existence of [statutes such as § 31-299b and § 31-349] does not prevent a commissioner from making a finding that two separate accidents contributed to cause a particular injury, although both injuries are individually compensable. . . . We do not think the legislature intended § 31-349 to prevent an employer or insurer from being held partly responsible for the direct consequences of a compensable injury where prior law, as demonstrated by Mund, would have allowed the apportionment of liability based on causation.” Id., 27.

The holding in Jolicoeur, however, did not merely concern the payment of permanent partial disability benefits (as had Perrotti); it addressed all medical and indemnity benefits that flowed from a claimant’s need for surgery. Two other cases that followed Jolicoeur have also applied the Mund approach to payments for medical expenses and temporary partial disability benefits. Koczur v. O. Z. Gedney, 3051 CRB-8-95-3 (Dec. 20, 1996); Milardo v. EIS/Div. Parker Hannifin, 15 Conn. Workers’ Comp. Rev. Op. 27, 2034 CRB-8-94-4 (Nov. 15, 1995). In light of the Fimiani decision, these holdings appear inconsistent with the language of § 31-349(a) as quoted above, which was added to the statute in 1967, and was not in effect at the time Mund was decided. Where two separate injuries materially contribute to cause a permanent partial disability, the costs of associated medical care, and impliedly, temporary disability benefits, must be borne solely by the second-injury employer. The Mund Court did not draw that distinction in its holding because the law at the time did not so provide. Thus, insofar as they support such an apportionment, Jolicoeur, Koczur and Milardo must be overruled.

In the instant case, there are two separate and identifiable foot injuries at issue. The second of those injuries was found to be the result of repetitive trauma, while the first injury is clearly identifiable as an accidental incident. Based on our analysis of the law surrounding § 31-349, we are constrained to hold that Atlantic Mutual and any other insurers who may be found liable for the claimant’s repetitive trauma injury under § 31-299b may not seek a 75% proportional reimbursement from Fireman’s Fund for either the costs of medical treatment, including surgery, or temporary total/partial disability benefits, despite the role that the claimant’s first injury played in causing her current condition. Such expenses remain the responsibility of the employer and insurer at the time of the second injury.

The trial commissioner’s decision is accordingly reversed with respect to the reimbursement order challenged in the appeal of the respondent Fireman’s Fund.

Commissioners George A. Waldron and Ernie R. Walker concur.

1 The respondent employer and its insurer Atlantic Mutual also filed an appeal from the trier’s Finding and Award, which they withdrew shortly afterward. BACK TO TEXT

2 As of October 1, 2001, that appeal period was extended to twenty days. BACK TO TEXT

3 Section 31-299b provides, “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. Reimbursement shall be made within ten days of the commissioner’s order with interest, from the date of the initial payment, at twelve per cent per annum. If no appeal from the commissioner’s order is taken by any employer or insurer within ten days, the order shall be final and may be enforced in the same manner as a judgment of the Superior Court.” BACK TO TEXT

4 We observe that no discussion was held on Atlantic Mutual’s right to apportion liability amongst the other insurers that provided workers’ compensation coverage to Burlington Coat Factory during the period of the claimant’s repetitive trauma exposure, even though Dr. Santoro stated that the claimant’s job duties over that entire time period equally contributed to the portion of her injury attributable to subsequent job duties. Section 31-299b does create such a right of reimbursement, and the records of this Commission indicate that several other insurers were on the risk over the course of that ten-year period. BACK TO TEXT

5 After Plecity was decided, legal practitioners gradually established the custom of apportioning liability in occupational disease and repetitive trauma cases that featured multiple insurers on the risk during the period of exposure. This practice was codified by the 1981 enactment of § 31-299b, whereby the last employer is initially obligated to pay all benefits, but may seek apportionment and reimbursement from other responsible parties. Thomen v. Turri Electric, 11 Conn. Workers’ Comp. Rev. Op. 299, 302, 1324 CRD-5-91-10 (Dec. 23, 1993). BACK TO TEXT

6 In Cashman v. McTernan School, Inc., 130 Conn. 301 (1943), which is still followed today, our Supreme Court held that the statutory apportionment of compensation for “aggravation of a pre-existing disease” now found in § 31-275(1)(C) applies only to prior occupational diseases as defined in the statute, and does not require apportionment in cases where the pre-existing disease was non-occupational in nature. But see Gartrell v. State/Dept. of Correction, 258 Conn. 137 (2001) (preexisting non-compensable psychiatric condition was exacerbated by workplace physical injury, making employer liable only for proportion of disability from post-traumatic stress disorder that was reasonably attributable to that work-related injury), Motion for Reconsideration granted, S.C. 16467 (Dec. 17, 2001). BACK TO TEXT

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