Lawrence v. Dichello Distributors

EBI Indemnity Co. was represented by William C. Brown, Esq., McGann, Bartlett Brown, 281 Hartford Tpke., Vernon, CT 06066.

The Second Injury Fund was represented by Nancy Sussman, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the April 25, 1994 Memorandum of the Commissioner acting for the Fourth District was heard March 10, 1995 before a Compensation Review Board panel consisting of Commissioners George S. Waldron, Roberta S. D’Oyen and Amado J. Vargas.

OPINION

GEORGE S. WALDRON, COMMISSIONER. The Second Injury Fund has petitioned for review from the April 25, 1994 Memorandum of the Commissioner for the Fourth District. The Fund argues on appeal that the trial commissioner improperly transferred liability to it for the claimant’s injury. We agree, and sustain the appeal.

The claimant was employed by Dichello Distributors from 1963 to at least January 12, 1988, according to the parties’ stipulation of facts. The respondent insurer EBI/Orion accepted a repetitive trauma claim resulting from that employment, which claim concerned a cervical and right shoulder injury to the claimant. A 30 percent permanent partial disability of the cervical spine was subsequently accepted by EBI/Orion, with a maximum medical improvement date of October 16, 1989. Timely notice of the injury was provided to the Second Injury Fund pursuant to § 31-349 C.G.S.

The Fund argued, however, that the injury does not qualify for transfer, because the parties have no evidence to show that the claimant had a permanent physical impairment that pre-existed the onset of his exposure to repetitive trauma with Dichello Distributors. The commissioner disagreed with that argument and allowed transfer of this claim to the Fund because EBI/Orion was the insurance carrier for Dichello Distributors only since October 15, 1986. He reasoned that the claimant had a pre-existing permanent physical impairment when EBI/Orion was first placed on the risk, as the repetitive trauma stretched over a time continuum antedating EBI/Orion’s coverage.

The commissioner noted that liability would have been transferable under § 31-349 if the claimant’s pre-existing impairment had resulted from his work with an employer other than Dichello Distributors, and cited § 31-349’s repeated use of the term “employer or its insurance carrier” as evidence that the drafters of the statute contemplated that insurers, rather than employers, are the true beneficiaries of § 31-349. He concluded that the Fund had to accept transfer of the claim once EBI/Orion had paid 104 weeks of benefits for permanent partial disability existing after October 15, 1986, with any specific indemnity payments resulting from prior disability not being included in the 104-week calculation. The Fund has appealed from that decision.

There is no dispute that the claimant’s injury was a repetitive trauma injury, and that said trauma occurred between 1963 and 1988. A repetitive trauma injury as defined by § 31-275(16) C.G.S. only constitutes one injury under the law, even though many different acts have contributed to its cause. This is borne out by our decision in Thomen v. Turri Electric, 11 Conn. Workers’ Comp. Rev. Op. 299, 1324 CRD-5-91-10 (Dec. 23, 1993), where we stated that apportionment under § 31-299b C.G.S. 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.” Id., 302; see also Jolicoeur v. L.H. Duncklee Refrigeration, Inc., 1842 CRB-2-93-9 (decided May 3, 1995).

Section 31-299b makes the employer who last employed the claimant prior to the filing of the claim, or that employer’s insurer, liable for the initial payment of benefits for an injury. The trial commissioner must later determine whether prior employers, or their insurers, are liable for a portion of such compensation. If they are, the commissioner must order them to reimburse the initially liable employer or insurer for the appropriate percentage of compensation paid. No such decision was made in this case, however, because the commissioner instead applied § 31-349.

“As a matter of law, the date of injury of a repetitive trauma is the last day of exposure, which is usually the last day of employment.” Borent v. State, 33 Conn. App. 495, 499 (1994). There is no indication that the claimant ceased being exposed to repetitive trauma any earlier than January 12, 1988, so we must deem that day the date of injury in this case. At that time, § 31-349(a) provided: “[i]f an employee . . . who has . . . permanent physical impairment, incurs a second disability . . . resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability . . . less any compensation benefits payable or paid with respect to the previous disability . . . .” The statute allows an employer or its insurance carrier to seek transfer of liability to the Second Injury Fund after paying the first 104 weeks of disability. The existence of a permanent physical impairment prior to the second injury is, of course, a prerequisite to the imposition of liability on the Fund. Rowe v. Plastic Design. Inc., 37 Conn. App. 131 (1995).

Here, we are asked to apply § 31-349 where there is legally only one injury, but two insurers were on the risk for consecutive time periods. Despite the Fund’s alleged concession that the claimant already had a permanent partial impairment as of October 15, 1986, the date EBI/Orion took over as Dichello Distributors’ insurer, we are not blind to the fact that the Fund was simply referring to the considerable exposure to repetitive trauma that the claimant had experienced between 1963 and 1986. The repetitive trauma injury that EBI/Orion accepted by voluntary agreement was not somehow separated into two injuries, with the trauma exposure between October 1986 and January 1988 causing a “second disability” within the meaning of § 31-349.

Instead, as § 31-299b suggests, the repetitive trauma injury was one 25-year-long injury that resulted in a first-time disability for the claimant when he filed his claim in 1988. Responsibility for this injury may be apportioned among multiple insurers, with a previous insurer becoming potentially responsible for reimbursing the immediate insurer for a percentage of the disability payments. This is the remedy that EBI/Orion ought to seek in this case against Dichello Distributors’ prior workers’ compensation insurer, assuming the trial commissioner makes a finding as to the percentage of disability attributable to the repetitive trauma exposure occurring between 1963 and 1986.

We do not think that the Second Injury Fund was appropriately burdened with liability in this case under § 31-349. First, payment of an award from the Fund should be made only in accordance with express statutory authority, and § 31-349 should not be construed broadly to include questionable claims. See Davis v. Norwich, 232 Conn. 311, 324 (1995); McNulty v. Stamford, 37 Conn. App. 835, 838 (1995). The fact that an insurance carrier can independently seek transfer of a claim to the Fund does not directly lead to the notion that one repetitive trauma injury is really two separate physical impairments because there was more than one insurer liable during the period of exposure.

Second, the legislature has created a mechanism for addressing this situation by enacting § 31-299b, the apportionment statute discussed above. This statute expressly gives the insurer, and not the Fund, the right to seek reimbursement from earlier insurers (or earlier employers, in appropriate cases). It would be inconsistent with § 31-299b, and with our recent decision in Lundquist v. Parkway Pavilion, 2044 CRB-1-94-5 (decided November 1, 1995), to place liability for a prior compensable injury on the Second Injury Fund, instead of on the insurer who contracted to indemnify the employer from liability for that injury. Indeed, unlike the situation in Lundquist there is no “later injury” here that would warrant the involvement of the Fund in the first place. Therefore, we hold that this claim is not transferable to the Second Injury Fund.

The trial commissioner’s decision is reversed. The case is remanded to the Fourth District for a determination of the propriety of apportionment under § 31-299b.