Mann v. Morrison-Knudsen/White Oak

The claimant was represented by Lorinda S. Coon, Esq., Cooney, Scully & Dowling, Hartford Square North, 10 Columbus Blvd., Hartford, CT 06106-1944.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

The Second Injury Fund was not represented at oral argument. At trial, the Fund was represented by Michael Belzer, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the December 8, 1993 Finding and Award of the Commissioner acting for the First District was heard December 2, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the December 8, 1993 Finding and Award of the Commissioner for the First District. On appeal, the respondents argue that the commissioner improperly determined that the respondents were not entitled to a credit for the percentage of the claimant’s permanent partial disability assessed to a prior injury that was the subject of a workers’ compensation claim made and settled by the claimant pursuant to Missouri law. We reverse the trial commissioner’s decision.

The commissioner found that the claimant suffered a compensable injury to his left arm on December 18, 1989. The claimant was rated with a 60 percent disability of his left arm after the injury, forty percent of which was attributable to a 1973 injury compensable under the workers’ compensation law of the state of Missouri. Payments were made for the Missouri injury, including a payment from a third party, and the workers’ compensation claim was settled in return for a waiver of the workers’ compensation lien. The commissioner found that the claimant had received no permanent partial disability under Connecticut law for the injury to his left arm, and ruled that the claimant was entitled to the full permanent partial disability of 60 percent of his left arm without credit for prior payments made as a result of the 1973 incident. The respondents have appealed from that decision.

Section 31-349(a) provided at the time of the claimant’s 1989 injury, “[i]f an employee who has previously incurred [a permanent physical impairment] . . . incurs a second disability . . . resulting in a permanent disability caused by both conditions . . . he shall receive compensation for the entire amount of disability, including total disability, less any compensation benefits payable or paid with respect to the previous disability . . . .” (Emphasis added.) In 1991, the legislature removed the word “benefits” from this subsection as part of an effort to simplify the language of the statute. 34 S. Proc., Pt. 3, 1991 Sess., p. 836 (remarks of Sen. James H. Maloney). Our Supreme Court noted that this change was not substantive in Weinberg v. ARA Vending Co., 223 Conn. 336, 346-47 (1992), and considered it in the course of its determination that the term “compensation” as used in § 31-349(a) did not include benefits paid outside of the Connecticut Workers’ Compensation Act.

Subsequent to the Weinberg decision, the legislature amended § 31-349(a) by adding the following definition: “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.” This amendment overrules the majority opinion in Weinberg and is consistent with the policy enunciated in McGowan v. General Dynamics Corporation/Electric Boat Division, 15 Conn. App. 615 (1988), affirmed, 210 Conn. 580 (1989). There, our Appellate Court declined to implement a category-by-category credit scheme that would have allowed a plaintiff to recover a total award greater than that available under either the federal Longshoremen’s and Harbor Workers’ Compensation Act or our Workers’ Compensation Act alone. The importance of prohibiting “double recovery” for a claimant’s injuries was emphasized by the court, as was the exclusive remedy provision of our Act. Id., 618-19, 621-22.

Just as the 1991 amendment to the Workers’ Compensation Act was a technical amendment that could be retroactively applied in interpreting § 31-349, it is evident that the 1993 amendment to § 31-349(a) was intended to clarify the definition of “compensation payable or paid with respect to a previous disability.” The legislative history of P.A. 93-228 is silent with respect to this particular provision, but we are not blind to the obvious point behind the clarification of “compensation.” As our Supreme Court noted in Weinberg, subsequent enactments may illuminate the legislature’s intent with respect to prior legislative action. Id., 344-45. In this case, the legislature has unequivocally indicated that “compensation” refers to more than compensation under our Workers’ Compensation Act for the purpose of § 31-349(a). Therefore, we hold that the credit for prior compensation under § 31-349(a) is not limited to compensation received under our Workers’ Compensation Act.

In light of this decision, it will be necessary to determine the amount and the nature of the compensation that the claimant received for his 1973 injury, keeping in mind the principles of McGowan, supra. The findings of the commissioner below are not sufficient for us to review that issue, as it is unclear what the rights of the claimant were under Missouri law, what injuries he was in fact compensated for, and to what extent.

The trial commissioner is reversed, and the case is remanded to the First District for further proceedings consistent with this opinion.