CASE NO. 4949 CRB-2-05-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MAY 18, 2006
TOWN OF ANDOVER
WEBSTER INSURANCE COMPANY
HARTFORD INSURANCE GROUP
The claimant was represented by Benjamin M. Massa, Esq., 221 Main Street, Hartford, CT 06106.
The respondent-employer Town of Andover and Webster Insurance Company was represented by David C. Davis, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
The respondent-employer Town of Andover and Hartford Insurance Group was represented by John W. Greiner, Esq., Law Offices of David J. Mathis, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.
This Petition for Review from the May 26, 2005 Finding and Award of the Commissioner acting for the Second District was heard November 18, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent-appellant, Hartford Insurance Group, appeals from the May 26, 2005 Finding and Award of the Commissioner acting for the Second District. On appeal the appellant presents the following issue for review; whether the trial commissioner erred in apportioning liability for § 31-308a benefits against the appellant.
The pertinent facts are as follows. On March 2, 1995 the claimant sustained a compensable back injury. At the time of this injury the respondent, Hartford Insurance Group was the insurance carrier on the risk. As a consequence of the March 2, 1995 injury the claimant underwent surgery for ruptured discs at L4-5 and L5-S1. Following surgery the claimant was left with a 15% permanent partial disability and no work restrictions. A Voluntary Agreement was approved October 31, 1995 reflecting claimant was paid 56.1 weeks of permanent partial disability benefits at his base compensation rate of $351.85.
The claimant returned to work for the same employer and on May 8, 2002 sustained a new compensable injury to his back. See Finding ¶ 7. At the time of the second injury, the Workers’ Compensation insurance carrier on the risk was Webster Insurance. Dr. Inam Kureshi was the claimant’s treating physician for this second injury. Dr. Kureshi diagnosed claimant as having suffered a recurrent disc herniation at L5-S1. On August 8, 2002 Dr. Kureshi opined claimant should not engage in work involving heavy lifting. Thereafter, the claimant began searching for work within his restrictions. On April 24, 2003 claimant underwent surgery. On or about June 9, 2003 the claimant began looking for work within his restrictions but to no avail. The claimant reached medical maximum improvement on October 29, 2003 and sustained a six percent (6%) increase in his permanent partial disability to his back for a total permanent partial disability of twenty-one per cent (21%). Dr. Kureshi opined claimant’s work restrictions were such that the claimant could not lift more than 20 pounds and recommended sedentary work. A similar opinion of claimant’s work capacity was provided by Dr. William Druckemiller.
The trial commissioner found the respondent-appellant paid the claimant 56.1 weeks of permanent partial disability benefits reflecting the 15% disability to the lower back resulting from the March 2, 1995 injury. Also found was the appellee, Webster Insurance’s, payment of 22.44 weeks of permanent partial disability reflecting the 6% increase in claimant’s permanent partial disability to his back due to the May 8, 2002 injury alone.
The trial commissioner then found the claimant was entitled to 78.54 weeks of § 31-308a benefits and liability for those benefits was to be apportioned between the appellant and appellee. The appellant, Hartford Insurance Group was liable for 56.1 weeks of § 31-308a benefits at a rate of $249.60 per week. The appellee, Webster Insurance was liable for 22. 44 weeks of § 31-308a benefits at a rate of $290.44.
On appeal the appellant contends the trier erred in holding it liable for a portion of claimant’s § 31-308a benefits. The essence of the appellant’s argument is that following the claimant’s recovery from his March 2, 1995 injury, the claimant returned to work without physical restrictions. The appellant argues that as the claimant returned to work without restrictions following the injury for which it was liable, the trial commissioner should not have assigned liability for any portion of the § 31-308a award. Further, the appellant argues that the trial commissioner’s conclusion is contrary to our Supreme Court’s opinion in Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003). We agree.
Sec. 31-349 (a) provides in pertinent part:
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 the 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.
Additionally, § 31-349(d) provides:
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.
Sec. 31-349(a) permits a claimant to receive compensation for a second injury and allows the party liable for that injury to deduct for compensation paid or payable due to the previous disability. In the instant matter, the commissioner found the claimant’s first injury combined with a second injury to create a permanent disability greater than the disability that would have resulted from the second injury alone. The compensation paid or payable encompasses the permanent partial disability paid, or payable, pursuant to § 31-308(b). See Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635 (1999).
In Fimiani, our Supreme Court considered the application of § 31-349(a) under a prior version of that statute. The act at the time the Fimiani court construed § 31-349(a) provided that the:
“employer by whom the employee is employed at the time of the [second] injury . . . [shall] pay all awards of compensation and all medical expenses . . . for the first one hundred four weeks of disability. . . . Thereafter all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund. . . .”
Id., p. 642-643.
The Fimiani court also noted:
[P]ursuant to Public Acts 1993, No. 93-228, § 24 (P.A. 93-228), the legislature amended General Statutes (Rev. to 1993) § 31-349 to provide that the phrase “‘compensation payable or paid with respect to the 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.” General Statutes (Rev. to 1995) § 31-349(a). During the committee hearing on Substitute House Bill No. 7172, the bill that eventually was enacted as P.A. 93-228, Jesse Frankl, a commissioner and the chairman of the workers’ compensation commission, remarked that the phrase “less any compensation benefits payable or paid with respect to the previous disability” was intended to apply to the increase in permanency rating of a disability. See Conn. Joint Standing Committee Hearings, Labor and Public Employees, 1993 Sess., Pt. 4, p. 1213. [fn15]. We conclude, therefore, that P.A. 79-376 was intended to limit the liability of both the second employer and the fund by requiring that, in calculating the amount of benefits due the claimant for the claimant’s second injury, a deduction be taken for any compensation benefits that the claimant already is entitled to recover for his first injury pursuant to §§ 31-308 (b), 31-309 and 31-295 (c) . . . .
After the court’s decision in Fimiani we were asked to consider Hatt v. Burlington Coat Factory, 4326 CRB-2-00-12 (December 19, 2001) and to apply § 31-349(a) and § 31-349(d) following the legislature’s enactment of Public Act 95-277. We concluded § 31-349(a) permits a deduction for benefits awarded pursuant to § 31-308(b) for the first injury, the insurance carrier on the risk at the time of the second injury assumes liability thereafter. Id.
Our opinion in Hatt, was appealed and reviewed by the Supreme Court. The Supreme Court affirmed this tribunal’s opinion. The court held that § 31-349 abrogated common law apportionment for second injuries where such injuries combine with a prior injury and result in a disability that is substantially and materially greater than the disability which would have resulted from the second injury alone.1 The Supreme Court noted that prior to the closing of the Second Injury Fund pursuant to § 95-277, cases concerning factual situations like those presented in Hatt would have been eligible for transfer to the Second Injury Fund following the payment of 104 weeks of benefits by the employer or insurer on the risk at the time of the second injury. The court provided a detailed history of § 31-349 and statutory and common law apportionment schemes under our Workers’ Compensation Act. Hatt, supra, p. 299-304.
The Hatt court summarized the court’s prior holdings in Mages v. Alfred Brown, Inc., 123 Conn. 188, 193 (1937)2 and Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338, 344, (1952).3 The court opined Mund was part of the common law genesis enactment for § 31-299b. Sec. 31-299b permits apportionment for injuries due to repetitive trauma and occupational disease. The Hatt court noted that the distinction between Mages and Mund was that Mages involved two separate injuries which combined to disable the claimant. Mund was more in the nature of a single progressive injury i.e., an injury due to repetitive trauma. Hatt, supra, p. 306.
In the instant matter the trial commissioner did not find the claimant suffered an injury due to repetitive trauma or occupational disease. In fact the trial commissioner specifically found that the claimant suffered a “new” injury. See Finding ¶ 7. Although the second injury caused a rupture of a disc previously repaired as a result of the first injury, the trier’s finding clearly reflects that the second injury was a separate and distinct injury. We note the appellant did not file a Motion to Correct thus the factual findings remain as the commissioner found them.
We therefore conclude that part of the commissioner’s May 26, 2005 Finding and Award apportioning the claimant’s award of § 31-308a benefits between the appellant and the appellee must be reversed and sole liability for the payment of § 31-308a benefits is the responsibility of the appellee, Webster Insurance.
Commissioners Stephen B. Delaney and Michelle D. Truglia concur.
1 The Hatt court considered § 31-349 as amended by P.A. 95-277 § 3. BACK TO TEXT
2 In Mages the court concluded that where a second injury occurred before the claimant was healed from the first injury, the second employer was liable for the consequences of both injuries when the first injury was a substantial factor in producing the resulting disability from the second injury. Mages, supra. BACK TO TEXT
3 In Mund the court held that where a first injury and second injury were found to be “equal contributing causes” of a resultant disability, apportionment between the injuries was permissible. Mund, supra. BACK TO TEXT