CRB Case Annotations re: Section 31-299b

Reversing trier’s decision, CRB held that § 31-299b allows the last insurer on the risk to seek apportionment and reimbursement for share of claim attributable to coverage period of a now-insolvent insurer, based upon the respective proportions of liability of all solvent insurers who are on the risk for a portion of the claim. Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438 (1997), disallowed recovery from Connecticut Insurance Guaranty Association for share of claim attributable to insolvent insurer, but Court specifically left open question of reapportionment of that share among remaining solvent insurers. CRB noted that statute was amenable to two readings, and then examined legislative history, origin and purpose of § 31-299b, and related caselaw, including Hunnihan and its interpretation of CIGA, in reaching its decision.

Based on CRB’s opinion in Hatt v. Burlington Coat Factory, 4326 CRB-2-00-12 (December 19, 2001) CRB held apportionment not available under this factual scenario. See, Ortiz, § 31-349.

Statute does not provide for apportionment of liability between the insurer liable for a single accidental injury and the last insurer on the risk for a subsequent repetitive trauma injury to the same body part. See, Hatt, § 31-301. Appeal procedure; § 31-349.

Apportionment under § 31-299b inapplicable to case involving two separate accidental injuries that contribute to overall disability. See, Kelly, § 31-301. Factual findings; also cited at § 31-349.

Claimant widow had settled decedent’s asbestos-related occupational disease claim, and her own survivor’s claim, via settlement with a number of decedent’s former employers and their insurers, including his last employer. Trier held that claimant could pursue an occupational disease claim against the remaining employers, whose insurer had become insolvent, even though she could not seek relief against the Connecticut Insurance Guaranty Association. CRB held that, in an occupational disease case under § 31-299b, the last employer is made initially liable for benefits, with apportionment to be ordered later. CIGA statute forbids recovery from CIGA where claimant has not exhausted rights under any valid insurance policy. As claimant had settled case rather than exhausting liability of the solvent insurers on the risk, including the last employer’s insurers, she could not seek relief from CIGA now. CRB also reversed trier’s decision allowing claimant to seek relief from the employers directly. Though language of CIGA statute forbidding claims “against the insured of such insolvent insurer” was not added to statute until several months after date of first manifestation of disease, CRB held that the amendment was merely a clarification of existing definition of “covered claim.” Prior decision at Harbec, § 31-296. Voluntary agreements (approval of).

Respondent disputed trial commissioner’s conclusion that claimant’s carpal tunnel and cubital tunnel syndromes were caused by injurious exposure at work from 1992 through August of 1998 (the date of the last formal hearing). CRB affirmed, as this was a factual matter for the trier and was fully supported by the record. Although the last medical documentation was dated January 14, 1998, the claimant testified that his injurious exposure to repetitive trauma continued to the date of the formal hearing.

Pantanella v. Enfield Ford, 3937 CRB-1-98-11 (January 7, 2000), aff’d, 65 Conn. App. 46 (2001), cert. denied, 258 Conn. 930 (2001).

In a footnote, CRB discussed inapplicability of § 31-299b to a case in which the claimant sustained several discrete back injuries. The issue at bar was whether the appellant CIGA could rely upon Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438 (1997), to establish that this was a reimbursement claim by an insurer, i.e., statutorily prohibited. See Pantanella, § 31-300, § 31-301. Factual findings. Also cited at Pantanella, § 31-298, § 31-315. Subsequent decision in Pantanella, 4220 CRB-1-00-4 (December 19, 2000), § 31-298, § 31-300; prior decision in Pantanella, 3377 CRB-1-96-7 (January 28, 1998), aff’d, 65 Conn. App. 46 (2001), infra and § 31-298, § 31-301. Factual findings, § 31-355(e).

Two voluntary agreements were signed, each detailing a separate date of injury with a different insurer, with both pertaining to the same lung impairment, and dividing responsibility for an overall 15% permanent partial disability. Subsequently, one insurer became insolvent, and CIGA challenged the assertion that it was required to accept responsibility for 37.5% of the claimant’s benefits under § 31-355(e) and the Connecticut Insurance Guaranty Act. The trier ruled that, pursuant to the voluntary agreements, CIGA’s liability ran directly to the claimant, and Hunnihan v. Mattatuck Mfg., 243 Conn. 438 (1997), did not absolve CIGA of responsibility. CRB affirmed. There was no medical evidence of any kind in the record, and no support for CIGA’s argument that the claimant’s injuries should be treated like a § 31-299b case with a single period of repetitive trauma exposure. Also cited at Simmons, § 31-355(e).

CRB reversed trier’s assessment of 65% of liability to an employer pursuant to § 31-299b. Trier apparently relied upon a physician’s opinion that “one-half or more” of the claimant’s condition was the result of her work for that employer. While CRB recognized that trial commissioner is the sole finder of fact, by allowing the commissioner to choose any percentage above fifty percent, he would be permitted to make a finding of fact that is subjective and not specifically supported by a medical opinion.

CRB affirmed trial commissioner’s apportionment pursuant to § 31-299b where claimant sustained exposure to asbestos at two different employers. Apportionment was a question of fact.

See, Barron, § 31-294c. See also, Barron, § 31-301. Factual findings.

Pantanella v. Enfield Ford, 3377 CRB-1-96-7 (January 28, 1998), aff’d, 65 Conn. App. 46 (2001), cert. denied, 258 Conn. 930 (2001).

Case involved four distinct injuries, and liability was not apportioned under § 31-299b. See also, Pantanella, § 31-298, § 31-301. Factual findings, § 31-355(e). Subsequent decisions in Pantanella, 4220 CRB-1-00-4 (December 19, 2000), § 31-298, § 31-300; Pantanella, 3937 CRB-1-98-11 (January 7, 2000), aff’d, 65 Conn. App. 46 (2001), supra and § 31-300, § 31-301. Factual findings. Also cited at § 31-298, § 31-315.

See, Campbell, § 31-301. Factual findings. See also, Campbell, § 31-307.

Statute allows trier to assign proportional liability among prior employers for injuries occurring over a time continuum. However, it does not apply to the most recent employer when it is clear that no injurious exposure occurred during that employment, even though the imposition of liability on the last employer under § 31-299b is a policy of administrative convenience rather than a presumption of true joint liability. Issue of corporate successor’s identity also raised. Trier could have reasonably found that current “U.S. Silica Company” was the current version of the entity once known as the “Connecticut Silicon Division” of the Ottawa Silica Company, and ordered U.S. Silica to accept initial responsibility for the injury under § 31-299b. However, the evidentiary process also eliminated the ultimate liability of Travelers Insurance, and CRB ruled it should no longer be involved in the administration of this claim. Liberty Mutual’s argument that Travelers’ conduct has prejudiced its interests has no legal relevance to the apportionment of liability under § 31-299b.

See, Desantis, § 31-301.

CRB affirmed the trial commissioner’s conclusion that the claimant’s heavy lifting duties at the respondent employer constituted an intervening cause with respect to the prior employer where he had sustained a prior injury to his back. Thus, the respondent employer was liable for the additional five percent permanent partial disability, as the remaining ten percent permanency had been paid or was payable by the prior employer. The trial commissioner properly apportioned the resulting permanent partial disability based upon § 31-349 rather than § 31-299b.

CRB affirmed the trial commissioner’s decision which apportioned the resulting liability equally between two insurers where the claimant sustained two injuries that were equal, concurrent, and contributing causes of her disability and need for medical treatment, including a herniated disc. Although the general rule in workers’ compensation law is that employer is liable to fully compensate claimant for full extent of disability regardless of preexisting condition, hardships caused by that rule have led to enactment of apportionment statutes such as § 31-349 and § 31-299b (held inapplicable here). CRB held that trial commissioner’s apportionment was proper pursuant to the common-law theory in Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338 (1952). See also, Jolicoeur, infra, this section.

Hunnihan v. Mattatuck Mfg. Co., 16 Conn. Workers’ Comp. Rev. Op. 72, 2297 CRB-5-95-2 (October 30, 1996), rev’d, 243 Conn 438 (1997).

Claimant’s repetitive trauma extended over 17 years, during which time four separate insurers were on risk. Pursuant to § 31-299b, last insurer paid benefits and then sought reimbursement from other insurers. One insurer had become insolvent, so last insurer sought payment from Connecticut Insurance Guaranty Association under § 38a-836. The commissioner ordered CIGA to pay insolvent insurer’s share of benefits to last insurer; he also ruled that Workers’ Compensation Commission had no jurisdiction to consider CIGA’s constitutional defenses to liability. The CRB affirmed the trial commissioner, and held that the Workers’ Compensation Commission has jurisdiction to apply CIGA statute; core issue is a workers’ compensation question, and CIGA Act interpretation is incidental to its resolution. Legislative concern that most recent employer not unfairly be subjected to ultimate liability because of § 31-299b and the language of that statute show that liability is placed on last employer for administrative convenience, but true joint liability is not created. Commissioner is required to order reimbursement if he finds prior employers/insurers liable for any part of disability. Insurer can be a claimant under language of CIGA Act, and purposes of that act and Chapter 568 would not be furthered by preventing such a claim. Reversed by Supreme Court, which held that CIGA was established for the benefit of consumers, and claims for reimbursement of insurers are excluded from coverage. NOTE: The court agreed that a trial commissioner does have subject matter jurisdiction to adjudicate a claim for reimbursement under the CIGA statute.

Trial commissioner found that claimant’s disability was caused equally by work-related disc herniation, scar tissue from earlier surgery, and underlying spondylosis. As “immediate proximate cause” of total disability was work at Olender Corp., commissioner ruled it was liable for benefits. Held: sufficient evidence existed to establish a repetitive trauma injury. As for apportionment among previous employers, § 31-299b need not apply; commissioner found that work at Olender was sole proximate cause of back disability. Lighter duties were performed at previous employers. Commissioner was also entitled to infer that common-law apportionment was inappropriate based on causation. See, Jolicoeur, infra this section.

The trial commissioner found that the claimant had sustained compensable injuries to his back on March 13, 1986 and July 10, 1987, and apportioned the claimant’s resulting fifteen percent permanent partial disability between the two carriers that insured the employer at the time of the accidents. The commissioner found that the claimant suffered from a degenerative disc disease which preexisted the first injury, that the preexisting disease constituted one-half of the cause of his permanent partial disability, and that the two injuries were equally responsible for causing the remaining fifty percent of the permanent partial disability. CRB held that apportionment of liability between the two employers was appropriate under Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338 (1952). CRB further ruled that the insurer of the first injury was responsible for the permanent partial disability caused by that injury including the preexisting condition (seventy-five percent), and that the second insurer was responsible for the percentage attributable to the second injury only (twenty-five percent). See, Jolicoeur v. L.H. Duncklee Refrigeration, 14 Conn. Workers’ Comp. Rev. Op. 24, 1842 CRB-2-93-9 (May 3, 1995).

Sidella v. Kelly Services, 15 Conn. Workers’ Comp. Rev. Op. 72, 2151 CRB-5-94-9 (December 6, 1995).

Kelly Services argued on appeal that the commissioner improperly failed to apportion liability pursuant to § 31-299b. CRB affirmed the trial commissioner’s decision, as the trial commissioner’s determination that the claimant sustained two separate compensable injuries was adequately supported by the record. See, Milardo v. EIS/Div. Parker Hannifin, 15 Conn. Workers’ Comp. Rev. Op. 27, 2034 CRB-8-94-4 (November 15, 1995), infra.

Trial commissioner apportioned liability between two employers where claimant sustained injuries to his back while employed with each employer. Section 31-299b apportionment is appropriate in occupational disease and repetitive trauma cases where there is a single injury occurring over a time continuum involving several employers or carriers. Although CRB found error in the commissioner’s ruling that § 31-299b was applicable to this case, CRB held that apportionment of liability between the two employers was appropriate under Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338 (1952) and the common-law tort theory of causation espoused by that court. See, Jolicoeur v. L.H. Duncklee Refrigeration, 14 Conn. Workers’ Comp. Rev. Op. 24, 1842 CRB-2-93-9 (May 3, 1995).

Claimant suffered repetitive trauma injury with exposure from 1963 to 1988. Two insurers were on the risk during those years. Trial commissioner ordered claim transferred to Second Injury Fund, because claimant had pre-existing permanent impairment when second insurer accepted the risk. Held, repetitive trauma injury is a single injury under the law. § 31-349 only applies where there is more than one injury. Second insurer should look to § 31-299b for apportionment of liability for repetitive trauma injury between both insurers. Remanded for a decision on the propriety of apportionment under § 31-299b.

Lundquist v. Parkway Pavilion, 15 Conn. Workers’ Comp. Rev. Op. 7, 2044 CRB-1-94-5 (November 1, 1995), appeal dismissed for lack of final judgment, A.C. 15412, 15415 (February 22, 1996).

See, Lundquist, § 31-349.

Where commissioner determined employment at Navy Yard partially caused claimant’s asbestosis, but did not attempt to exercise jurisdiction over Navy Yard as an employer under § 31-275(10), it was improper for commissioner to apply § 31-299b in apportioning award payable by General Dynamics’ insurer. Section 31-299b embodies common-law concept of joint liability, and applies where single injury occurs over time involving several employers or carriers. If there are no prior employers or insurers within the meaning of the statute, liability cannot be apportioned.

Section 31-299b did not apply where the claimant suffered two compensable back injuries that were found to be equally contributing causes of the need for surgery. The statute refers to a single “injury or disease” as opposed to a disability, and was meant to impose joint liability where a single injury is sustained over time. See also, Jolicoeur, § 31-349.

Vigneri v. Utility Industrial Company, 12 Conn. Workers’ Comp. Rev. Op. 402, 1433 CRB-2-92-6 (September 9, 1994).

Apportionment of liability equally between employers supported by medical evidence as trier found disability due to two separate and distinct events. See also, Vigneri, § 31-301. Appeal procedure and § 31-315.

Holmes v. G.A. Masonry Corp., 12 Conn. Workers’ Comp. Rev. Op. 369, 1588 CRB-5-92-12 (August 11, 1994).

CRB vacated trier’s finding of equal apportionment among insurers where physician clearly changed his opinion as to apportionment during cross examination. See also, Holmes, § 31-294c and § 31-301. Factual findings.

Prioleau v. Larosa Construction, 12 Conn. Workers’ Comp. Rev. Op. 140, 1432 CRB-8-92-6 (April 7, 1994).

See, Prioleau, § 31-308(b), § 31-307 and § 31-349.

DeLucia v. Modena, 12 Conn. Workers’ Comp. Rev. Op. 212, 1471 CRB-3-92-7 (March 15, 1994).

Finding that right shoulder injury sustained by hairdresser was the result of repetitive trauma and years of employment in that profession with various employers supported by medical evidence. See also, DeLucia, § 31-275(16)[formerly 31-275(8)] and § 31-301. Appeal procedure.

Capen v. Genera Dynamics Corporation/Electric Boat Division, 11 Conn. Workers’ Comp. Rev. Op. 326, 1394 CRB-2-92-3 (December 30, 1993), aff’d, 38 Conn. App. 73 (1995).

Record lacks sufficient evidence to support trier’s finding that decedent was exposed to asbestos while employed out of state. CRB remanded with direction to award dependency benefits at full compensation rate as opposed to trier’s reduction in benefits. See also, Capen, § 31-294c, § 31-306.

Cloutier v. C.N. Flagg, 11 Conn. Workers’ Comp. Rev. Op. 304, 1352 CRD-2-91-11 (December 23, 1993).

Asbestos exposure found to be a substantial contributing factor to claimant’s lung cancer. CRB vacated trier’s award against one respondent insurer as they found claimant was not exposed to asbestos in the workplace during period said insurer was on risk. However, CRB affirmed trier’s award against another respondent insurer as evidence supports finding that claimant was exposed to asbestos in the workplace during period said insurer was on risk. See also, Cloutier, § 31-275(15).

Thomen v. Turri Electric, 11 Conn. Workers’ Comp. Rev. Op. 299, 1324 CRD-5-91-10 (December 23, 1993).

Insurer mistakenly relied on § 31-299b where § 31-349 properly applied. Trier found wrist injury in 1989 a new injury. Therefore, any benefits, including permanent partial disability, payable to claimant and attributable to the 1989 injury were reduced by the amount previously paid for the 1981 compensable wrist injury where a separate insurer was at risk.

Gargano v. General Dynamics Corporation/Electric Boat Division, 11 Conn. Workers’ Comp. Rev. Op. 287, 1285 CRD-2-91-8 (December 7, 1993).

CRB remanded matter as trier must determine if claim against insurer should be dismissed where there is no evidence presented showing decedent was exposed to asbestos during period where said insurer covered employer for workers’ compensation purposes. See also, Gargano, § 31-275(15).

Petta v. Waterbury Hospital, 11 Conn. Workers’ Comp. Rev. Op. 161, 1310 CRD-5-91-9 (August 23, 1993).

Before apportionment can be determined, there must be a factual finding to support such a determination. See also, Petta, § 31-298, § 31-300, § 31-301 and § 31-308a.

Galpin v. Joyce Moving & Storage, Inc., 11 Conn. Workers’ Comp. Rev. Op. 31, 1241 CRD-5-91-6 (February 26, 1993).

Remanded where claimant contends he performed work as a lent employee during twenty-six week period prior to his injury and sought to offer proof of additional wages earned. See also, Galpin, § 31-310.

Codding v. Colchester Egg Farms, Inc., 11 Conn. Workers’ Comp. Rev. Op. 4, 1232 CRD-2-91-5 (February 4, 1993).

Remanded as trier’s conclusion inconsistent with factual findings. Trier found causation, i.e., claimant’s occupational sensitivity to chicken products occurred during all times of exposure, i.e., 11 years of self employment plus 17 years employment with Colchester Egg Farms. Trier then found causation for claimant’s injury was only ascribed to the 17 year period claimant worked for Colchester Egg Farms. Apportionment of liability for only 17 year period must be reexamined by trier. See also, Codding, § 31-307, § 31-349.

Muldoon v. Homestead Insulation, 10 Conn. Workers’ Comp. Rev. Op. 255, 1226 CRD-4-91-5 (January 13, 1993), rev’d, 33 Conn. App. 695 (1994), rev’d, 231 Conn. 469 (1994), aff’d on remand, 37 Conn. App. 695 (1995)(per curiam).

Factual finding that respondent employer Cummings Insulation was the last employer subjecting claimant to asbestos exposure will not be disturbed on appeal. See also, Muldoon, § 31-275(1), § 31-275(15), § 31-296, § 31-315 and § 31-284(a).

Perrotti v. Portland Chemical, 8 Conn. Workers’ Comp. Rev. Op. 105, 836 CRD-8-89-3 (June 6, 1990).

Matter remanded where trial commissioner’s order was inconsistent with facts found. Specifically, remanded for clarification and determination of facts which would support ultimate apportionment of liability between carriers under § 31-299b.

Brown v. Bon Dental Lab, 6 Conn. Workers’ Comp. Rev. Op. 132, 594 CRD-7-87 (March 28, 1989).

While primarily procedural, retrospective application not permitted because commission lacked jurisdiction over out-of-state employers.

Borg v. Waterford Country School, 2 Conn. Workers’ Comp. Rev. Op. 70, 156 CRD-2-82 (July 3, 1984).

Apportionment of liability appropriate where disability results from concurrent causes.

CRB Case Annotations re: Section 31-299b

Apportionment; liability of last employer.