Colella v. Carmody & Torrance

The respondents were represented by Kenneth DeLorenzo, Esq., and Melissa S. Rotenberg, Esq., Law Offices of Christine Harrigan, One Civic Center Plaza, 3CC, Hartford, CT 06103.

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

This Petition for Review from the December 12, 1996 Finding and Award of Compensation by the Commissioner acting for the Fifth District was heard October 17, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer and its insurer (hereinafter “respondents”) have petitioned for review from the December 12, 1996 Finding and Award of the trial commissioner acting for the Fifth District. In that decision the trial commissioner found that the claimant’s left and right shoulder injuries constituted separate injuries under § 31-349. The trial commissioner thus concluded that the employer was responsible for 104 weeks of payments for each shoulder prior to transfer under § 31-349.

The trial commissioner found the following relevant facts. On December 3, 1991, the claimant sustained a compensable injury to her left shoulder, which was accepted as compensable pursuant to an approved voluntary agreement. In addition, on December 3, 1991, the claimant also sustained a separate and distinct injury to her right shoulder, which was also accepted as a compensable injury pursuant to an approved voluntary agreement. The claimant sustained the same type and degree of injury to each shoulder, and was diagnosed with large rotator cuff tears of both shoulders. The claimant suffered from previous degenerative conditions in both her right and left shoulders which, together with the December 3, 1991 injuries, resulted in permanent disabilities in each shoulder which were materially and substantially greater than would have resulted from the December 3, 1991 injuries alone.

The trial commissioner concluded that for purposes of transfer pursuant to § 31-349, the claimant’s right and left shoulder injuries constituted separate injuries, and thus the respondents must pay 104 weeks of benefits for each shoulder prior to transfer to the Fund. The claimant was paid thirty-three weeks for temporary total disability from January 21, 1992 to September 8, 1992. The claimant’s left and right shoulder injuries “contributed equally to the period of temporary total disability.” (Finding H). The respondent paid 50.925 weeks of permanent partial disability for the left shoulder, and paid 70.2 weeks of permanent partial disability for the right shoulder. (Findings No. 21-22). The trial commissioner thus found that the respondents had paid 83.925 weeks of disability for the right shoulder (33 plus 50.925); and that the respondents had paid 103.2 weeks of disability for the left shoulder (33 plus 70.2).

At the time of the 1991 injuries, § 31-349 allowed transfers of liability to the Fund when “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.” The employer or its insurer “shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter 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.” Sec. 31-349.

In support of their appeal,1 the respondents contend that they should be liable for a total of 104 weeks of payments for both injuries pursuant to the Appellate Court’s decision in Abbott v. General Dynamics Corp., 43 Conn. App. 737 (1996). In Abbott, the claimant sustained injuries to his neck and back during a single accident. As a result, the claimant underwent cervical surgery, and subsequently died because of the surgery. The trial commissioner ruled that liability was transferable to the Fund pursuant to § 31-349. However, because the claimant sustained “distinct and unrelated injuries from the same accident,” the trial commissioner concluded that the respondent could not transfer liability until it had paid 104 weeks of benefits for each injury. Abbott v. General Dynamics Corp., 14 Conn. Workers’ Comp. Rev. Op. 259, 261, 1923 CRB-2-93-12 (Aug. 31, 1995) (rev’d., 43 Conn. App. 737 (1996)). The Compensation Review Board affirmed the trial commissioner’s decision. The Board held that “[w]here a claimant has suffered more than one compensable injury from an accident, and those injuries are not causally related to each other... [the term] ‘disability’ as used in § 31-349(a) refers to each individual injury for the purpose of calculating the 104 week period.” Id. at 262 (citations omitted). The Appellate Court reversed the Board’s decision.

The court in Abbott explained that the Board had erroneously relied on Lovett v. Atlas Truck Leasing, 171 Conn. 577 (1976). Id. at 741. In Lovett, the claimant sustained injuries when a tire exploded, specifically total blindness in his left eye and partial blindness in his right eye. The claimant suffered from preexisting astigmatism. The left eye was not transferable because the total blindness was not materially and substantially greater due to the preexisting astigmatism. However, the partial blindness of the right eye was transferable, as it was materially and substantially greater due to the preexisting astigmatism. The respondents in Lovett requested that payments made for “other disabilities arising from the accident” should be credited toward the computation of the 104 weeks for the right eye. Lovett, supra, at 585. The Supreme Court in Lovett disagreed, and stated that “the second injury fund may become liable for permanent disability to each part of the body covered by the act, with each disability to be considered a separate injury, notwithstanding the fact that more than one injury may arise out of the same accident.” Lovett, supra, at 585-86 (emphasis added).

In Abbott, the Appellate Court explained that neither Hernandez v. Gerber Group, 222 Conn. 78 (1992) nor Lovett, supra, were dispositive, as those cases involved only one compensable disability which could potentially be transferred pursuant to § 31-349. In neither case did the Supreme Court address “the situation of two compensable disabilities transferred pursuant to § 31-349.” Abbott, supra, at 743. Accordingly, the court held that “(n)either decision, therefore, is dispositive of the issue before this court.” Abbott, supra, at 742. The court stated that the Board had erroneously relied on Lovett in affirming the trial commissioner’s decision. Abbott, supra, at 741.

The court explained as follows:

The court’s reasoning in Abbott, supra, is relevant to the instant case, as both Abbott and the instant case involve separate injuries, which are potentially transferable, and which occurred from the same incident. The Fund, in its brief, agrees that the claimant in the instant case sustained two separate injuries. The Fund argues that the Appellate Court in Abbott did not have the authority to overrule the Supreme Court decision of Lovett, supra. Moreover, the Fund argues that the facts in Abbott are distinguishable from the facts in the instant case because in Abbott the claimant was “contemporaneously temporary totally disabled” due to the combined effects of the neck and back injuries. (Fund’s Brief at p. 5).2

In the instant case, the trial commissioner did apply the thirty-three weeks of temporary total disability benefits to the calculation of the 104 weeks for both the right and left shoulder injuries.3 Presumably, then, if the claimant had been temporarily totally disabled for 104 weeks as a result of both the right and left shoulder injuries, the trial commissioner would have found that both injuries could transfer under the reasoning in Abbott, supra. However, the trial commissioner treated as separate the permanent partial disability payments awarded for each shoulder. (See Footnote 3). This determination is supported by the decision in Lovett, supra, and was not addressed in Abbott because in Abbott the claimant’s temporary total disability was due to the combined effect of two injuries. We agree with the Fund that the Appellate Court did not overrule the Supreme Court’s holding in Lovett that the Fund “may become liable for permanent disability to each part of the body covered by the act, with each disability to be considered a separate injury, notwithstanding the fact that more than one injury may arise out of the same accident.” Lovett, supra, at 585-86 (emphasis added). In other words, in applying the decisions of Lovett and Abbott, where payments are made for a disability caused by the combined effect of two injuries, those payments apply towards the calculation of the 104 weeks for each injury.4 However, where the payments are clearly due to only one of the injuries, those payments should be applied to the calculation of the 104 weeks for that injury only.

The trial commissioner’s decision is affirmed.

Commissioners James J. Metro and John A. Mastropietro concur.

1 Alternatively, the respondents argue that the right shoulder injury was caused by overuse due to the left shoulder injury, and thus that the respondents should only be responsible for 104 weeks of payments pursuant to the holding of Hernandez, infra. The respondents’ argument is not persuasive, as the conclusion as to whether the claimant’s left shoulder injury was caused by the right shoulder injury was a question of fact for the trial commissioner. The evidence in the record, including the medical opinion of Dr. Tormo, supports the trial commissioner’s conclusion that the claimant sustained two separate injuries on December 3, 1991. (See Findings 16-18). Accordingly, we may not disturb that conclusion. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). BACK TO TEXT

2 The claimant was being “furnished care for his back and neck conditions concurrently.” Abbott, supra, 14 Conn. Workers’ Comp. Rev. Op. at 260. BACK TO TEXT

3 The trial commissioner found that the claimant was paid thirty-three weeks for temporary total disability, and that the claimant’s left and right shoulder injuries “contributed equally to the period of temporary total disability.” (Finding H). The respondent paid 50.925 weeks of permanent partial disability for the left shoulder, and paid 70.2 weeks of permanent partial disability for the right shoulder. (Findings No. 21-22). The trial commissioner thus found that the respondents had paid 83.925 weeks of disability for the right shoulder (33 plus 50.925); and that the respondents had paid 103.2 weeks of disability for the left shoulder (33 plus 70.2). BACK TO TEXT

4 The Fund specifically agrees with the trial commissioner’s determination that the thirty-three weeks of temporary total disability payments should be added to the calculation of both the right shoulder injury and the left shoulder injury. (Fund’s Brief at p. 7). BACK TO TEXT