State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Kronick v. Ansonia Copper & Brass Co.

CASE NO. 5127 CRB-5-06-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 15, 2007

JOSEPH KRONICK

CLAIMANT-APPELLEE

v.

ANSONIA COPPER & BRASS CO.

EMPLOYER

and

EBI COMPANIES/ROYAL & SUNALLIANCE

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by James W. Cummings, Esq., The Cummings Law Firm, LLC, 21 Holmes Avenue, Waterbury, CT 06710.

The respondents were represented by William C. Brown, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review from the August 16, 2006 Finding from the Commissioner acting for the Fifth District was heard February 23, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Nancy E. Salerno.

OPINION

NANCY E. SALERNO, COMMISSIONER. The present case involves the situation of “taking the claimant as you find him” as defined in such cases as Epps v. Beiersdorf, Inc., 41 Conn. App. 430 (1996) and Cashman v. McTernan School, Inc., 130 Conn. 401 (1943). The claimant suffered a compensable injury from inhaling harmful fumes at work, but he had a preexisting lung condition unrelated to his employment. The trial commissioner awarded the claimant a permanency award based on his entire disability. The respondents have appealed, asserting that they should not be liable for the proportion of his disability attributed to pre-employment events. We believe the trial commissioner properly applied the law and dismiss this appeal.

The trial commissioner in this matter held a formal hearing that commenced August 23, 2005 and concluded on June 19, 2006 with the filing of proposed findings. The trial commissioner issued his Finding on August 16, 2006, finding the following facts. The claimant was employed by the respondent on April 12, 2000 in their casting department, working with dangerous chemicals and fumes. On that date he suffered a work place incident and was injured breathing in chemicals and dust. He was hospitalized after the incident.

Following the April 12, 2000 incident the claimant began treatment with Dr. Joel Zaretsky, a primary care physician and Dr. Maddhu Gowda, a pulmonary specialist, for a lung condition. He was treated generally through a medication regimen and was advised to leave his place of employment due to his exposure to chemicals in the workplace. The claimant had a long history of cigarette smoking ending in 1999 which had led to pulmonary lung ailments.

The trial commissioner was presented with conflicting medical evidence. The treating physicians concluded that the April 12, 2000 event aggravated and worsened the claimant’s existing lung condition. Dr. Zaretsky opined that the claimant had a 60% permanent partial disability to his lungs. The respondent’s examiner, Dr. Daniel Gerardi, examined the claimant and opined that the April 12, 2000 incident was temporary and self-limiting and the claimant’s current condition was solely due to his preexisting condition.

Consequently, the opinion of the commissioner’s examiner, Dr. Michael Conway, became paramount. After two examinations he opined that the April 12, 2000 incident resulted in permanent injuries; that it aggravated and worsened a preexisting condition; and that the claimant had a 50% permanent partial disability. The commissioner’s examiner attributed half of this disability to the April 12, 2000 incident.

The trial commissioner concluded the claimant was credible and sustained his burden of proof. He accepted the opinions of the treating physicians and the commissioner’s examiner as credible, and did not accept Dr. Gerardi’s opinion. As a result, he concluded the claimant suffered a compensable injury on April 12, 2000. He awarded the claimant a 50% permanent partial disability rating for his lungs effective January 16, 2006.

The respondents filed a Motion to Correct. Their motion sought revisions to add facts regarding the claimant’s preexisting condition, editing the findings regarding the opinions offered by the treating physicians, and most importantly, by reducing the respondent’s liability to a 25% loss of use of the lungs relying on Dr. Conway’s opinion that only half of the disability was due to the work-related incident. The trial commissioner denied this motion and the respondents have appealed, focusing primarily on the requested correction as to the preexisting condition.

The critical issue here is whether the trial commissioner correctly applied the law regarding when a compensable injury aggravates a preexisting condition. We must uphold his decision unless we determine his conclusions are due to “an incorrect application of the law to the subordinate facts. . . .” Tovish v. Gerber Electronics, 32 Conn. App. 595, 602 (1993). Two statutes are applicable to this situation. The respondents argue that § 31-275(1)(D) C.G.S. governs this situation and limits the claimant’s recovery to only that proportion of disability linked to his employment. The relevant statute reads,

(D) For aggravation of a preexisting disease, compensation shall be allowed only for that proportion of the disability or death due to the aggravation of the preexisting disease as may be reasonably attributed to the injury upon which the claim is based;”

Counsel for the claimant argues that our case law has defined “disease” in the context of this statute in terms of an “occupational disease” as defined in § 31-275(15) C.G.S.:

(15) “Occupational disease” includes any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such, and includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee in the course of his employment.

Therefore, since the claimant’s preexisting lung impairment was not due to exposure at a previous place of employment, the preexisting ailment is not an “occupational disease” under the statute.1 There also would be no prior employer to whom the respondent could seek apportionment of the award under this scenario. In the case of an aggravation of a work-related injury, our statutes would call for such apportionment. See § 31-349(a) C.G.S., which reads in 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. . . .

In the instant case, the trial commissioner determined that the claimant was entitled to compensation for the entirety of his disability and the employer was obligated to pay the full amount of this compensation, since no compensation was available from a prior employer. While the respondents argue this reaches a result inconsistent with the 1993 amendments to Chapter 568, they are unable to point to precedent over the past 14 years supportive of their position.

Respondents lean heavily on dicta contained in footnote 17 in Gartrell v. Dept. of Correction, 259 Conn. 29 (2002) “[w]e intimate no view as to how we may resolve any future claim challenging our holding in Cashman in light of the 1993 revisions to the Workers’ Compensation Act. . . .” We find the actual holding in this case more persuasive in that it restated the holding in Cashman i.e., “the apportionment limitation of § 31-275 (1) (D) is inapplicable to the plaintiff because his pre-existing post-traumatic stress disorder is not an occupational disease, that disorder having arisen from events unrelated to the plaintiff’s employment. . . .” We therefore conclude that the compensation to which the plaintiff is entitled is not limited by the apportionment provisions of § 31-275 (1) (D).” Id., 44-45.

In Gartrell, the Supreme Court restated a principle it earlier stated in Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635 (1999). In Fimiani the opinion endorsed the outcome described in the scenario outlined in footnote 15.

For example, suppose that a person seeking employment has preexisting low back problems which, if rated by a physician, would result in a finding of a 10% permanent partial disability. After securing the job that same person suffers an on-the-job traumatic injury . . . [that] substantially contributes to an exacerbation of his low back condition. As a result of that exacerbation the employee’s permanent partial disability rate is 20%. That employee is entitled to the same amount, nature and kind of benefits as if the work incidents have been the sole and exclusive agent of his injury and disability. . . . He is even entitled to a specific indemnity award for the full 20% permanent partial disability. . . .
Fimiani, supra, 650.

We find the Supreme Court’s direction in Fimiani and Gartrell dispositive as it has guided a number of recent decisions by this board. In particular, Deschenes v. Transco, Inc., 4943 CRB-8-05-5 (May 22, 2006) is factually on point with this case. In Deschenes the claimant had contracted asbestosis on the job, but had a long history of cigarette smoking. The respondents argued the effects of the two lung diseases were divisible and similar to the respondents in the present case, sought to be liable only for the later work-related exposure. We determined that even if expert testimony could assign a separate disability rating to the preexisting ailments “[i]t has long been a fundamental principle of workers’ compensation law that an employer takes the employee as it finds him, and that any statutory variation from that principle must be construed to work a minimum encroachment on that rule.” Id. We further held in Deschenes “[t]here is no legal remedy that allows those employers to avoid liability for whatever portion of the claimant’s lung impairment might be traceable to non-work-related emphysema, insofar as it was one of two conditions that combined to cause a single impairment.” This reasoning is consistent with other recent precedents on point, Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003) and Jacobson v. General Dynamics Corp./Electric Boat Division, 4642 CRB 2-03-3 (March 12, 2004).

Accordingly, we find that the trial commissioner appropriately applied the law to the facts herein.2 There is no error, the Finding is affirmed and the appeal is dismissed.

Commissioner Scott A. Barton concurs.

JOHN A. MASTROPIETRO, CHAIRMAN, CONCURRING. I concur unequivocally in the majority opinion, but avail myself at this juncture to present an additional opinion. I do so since this case offers an opportunity to provide a statement as to what powers we possess as an appellate panel; and conversely, what powers we do not possess.

The respondents in this matter have presented a good faith argument that the present interpretation of how two separate statutes are applied is in error. For a number of reasons, I must conclude ours is the wrong forum to consider such an issue.

In his argument before our board, counsel for the respondents eloquently explained how in his opinion our law on preexisting injuries has been rendered inherently unstable since the Supreme Court decided the Cashman, supra, case. While he presented a well reasoned argument, this argument fails due to the passage of time. Nearly 65 years have elapsed since the Cashman decision and it has long been settled law.3 We rejected the entreaty of the respondents last year in Marandino v. Prometheus Pharmacy, 4986 CRB-1-05-8 (September 29, 2006) to overturn another settled decision in our compensation law, Osterlund v. State, 135 Conn. 498 (1949). Our reasoning to uphold that precedent is equally applicable in this case, as we rejected the effort to overturn the present law for the following reasons.

Barring compelling circumstances, the principle of stare decisis makes such a venture injudicious. “Stare decisis, although not an end in itself, serves the important function of preserving stability and certainty in the law. Accordingly, ‘a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. Maltbie, Conn. App. Proc., p. 226.’ Herald Publishing Co. v. Bill, 142 Conn. 53, 62 (1955).” Buser v. G.R. Cummings Co., 4963 CRB-5-05-6 (June 8, 2006) citing Mitchell v. J.B. Retail Inventory Specialists, 3458 CRB-2-96-10 (March 31, 1998). We also note that the Supreme Court in Hanson v. Transportation General, 245 Conn. 613 (1998) held that the General Assembly is inferred to have ratified judicial interpretations of the Workers’ Compensation statute left unaffected by subsequent legislation. Id., 618-619. . . . We uphold Osterlund for the same rationale as we adopted in our holding in Chambers v. General Dynamics Corp./Electric Boat Division, 4952 CRB-8-05-6 (June 7, 2006), “[w]e have not been presented with compelling reasons that necessitate that our decision in [Buck v. General Dynamics Corporation/Electric Boat Division, 3324 CRB-2-96-4 (January 21, 1998)] must be overruled, hence we uphold that precedent . . . .” Marandino, supra.

We cited Hanson as authority in Marandino for upholding appellate decisions that the General Assembly has let stand during their subsequent revisions of Chapter 568. It further provides guidance on why this panel should act with great prudence in trying to ascertain what the law is when existing precedent is in place and a party asserts this precedent is logically unsound.

“[T]he workers’ compensation system in Connecticut is derived exclusively from statute. . . . A commissioner may exercise jurisdiction to hear a claim only under the precise circumstances and in the manner particularly prescribed by the enabling legislation.” “. . . Because of the statutory nature of our workers’ compensation system, policy determinations as to what injuries are compensable and what jurisdictional limitations apply thereto are for the legislature, not the judiciary or the board to make.”

Hanson, supra, 618.

The Supreme Court in Hanson further explained the concept of legislative acquiescence.

We have long acted on the hypothesis that the legislature is aware of the interpretation that the courts have placed upon one of its legislative enactments. Once an appropriate interval to permit legislative reconsideration has passed without corrective legislative action, the inference of legislative acquiescence limits judicial authority to reconsider the merits of its earlier decision. Id., 618-19.

It is axiomatic that as an administrative tribunal, we do not possess superior authority than the state’s highest court. Recently that court restated its limited authority in Hummel v. Marten Transport, Ltd., 282 Conn. 477 (2007). In Hummel, the Supreme Court not only restated its precedent as to legislative acquiescence and stare decisis, but also examined the impact the General Assembly’s enactment of § 1-2z C.G.S. had when the appellants claimed a statute had been previously misconstrued in its judicial interpretation.

We acknowledge that, if we were writing on a clean slate, § 1-2z might foreclose us from reading a final judgment requirement into § 31-301b because the text of § 31-301b contains no such requirement. Id., 496.

The Supreme Court concluded that this “clean slate” did not exist as the General Assembly had not enacted § 1-2z C.G.S. for the express purpose of addressing court decisions reached prior to the law’s enactment, id., 499-501; and that the decision which the parties sought to have reversed had been left unaffected by the General Assembly over an eighteen year period. Id., 501-502. They concluded “[i]n sum, it is the legislature, and not this court, that is best suited to entertain the argument of the parties and amici. . . .” Id.4

While the enactment of § 1-2z C.G.S did not impact the doctrine of legislative acquiescence, it has impacted our ability to go beyond the “plain meaning” of statutes even when public policy may suggest a superior result would be achieved by applying a broader interpretation. In Verrinder v. Matthew’s Tru Colors Painting & Restoration, 4936 CRB-4-05-4 (December 6, 2006) we were presented with a situation where applying the terms of the statutes resulted in upholding what we considered a “statutory anomaly”–permitting a self-employed claimant to obtain a Motion to Preclude when the insurer (who had received no notice) failed to file a timely disclaimer of liability. The “plain language” of the statutes did not include a notice requirement to insurers. We rejected the argument that based on equitable concerns a notice provision should be added to the statute by an appellate tribunal as “[i]n such a situation the remedy lies not with the court but with the General Assembly,” citing Bailey v. Mars, 138 Conn. 593, 598 (1952).

I therefore concur in this majority opinion. Even if I shared the respondents’ opinion that the present application of the law is incorrect and the statutes must be reinterpreted, I do not believe that issue can be resolved by an adjudicatory panel as it is within the General Assembly’s exclusive jurisdiction to amend the statutes they enact. In the absence of direction from the legislative branch, we must presume that the current state of the law in this situation is the authoritative public policy we must enforce.

1 The respondents argue that the term “disease” should not be limited to “occupational disease” in determining the employer’s obligation for the entire level of disability. They also argue that courts have failed to distinguish between “disease” and “disability” in applying the statutes on apportionment. As the Chairman points out in his concurrence, we are bound by lengthy controlling precedent by superior tribunals which compel an outcome adverse to the respondents and which bind our decisions. BACK TO TEXT

2 We find the respondents’ Motion to Correct primarily sought to interpose their interpretation of the law for that of the trial commissioner. To the extent that facts were sought to be added to the record, we find their addition would not have changed the result herein. There was no error in the denial of the Motion to Correct. D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002). BACK TO TEXT

3 Cashman has been cited in at least 11 Appellate and Supreme Court holdings, most recently in Gartrell, supra, Fimiani, supra and Epps, supra. BACK TO TEXT

4 The Supreme Court suggested in footnote 17 of Gartrell, supra, that the 1993 revisions to the Workers’ Compensation Act could have had an impact on the effect of Cashman, supra. The doctrine of legislative acquiescence indicates we must respect the inaction of the General Assembly, who have chosen not to clarify the situation with remedial legislation in the five years since Gartrell was issued. While the courts have acknowledged the strategy of the 1993 revisions was to reduce costs to employers, they have required a specific legislative grant of authority to implement this agenda “we do not construe the act to impose limitations on benefits that the act does not specify clearly.” Gartrell, supra, 42. BACK TO TEXT

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