State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Weber v. Electric Boat

CASE NO. 4086 CRB-02-99-07



NOVEMBER 13, 2000









ACE USA (formerly CIGNA)










The claimant was represented by Melissa Olson, Esq., Embry & Neusner, 118 Poquonnock Road, P. O. Box 1049, Groton, CT 06340-1409.

The respondent employer and the insurers Ace USA (formerly CIGNA) and Travelers Property Casualty were represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondent employer in its capacity as a self-insurer was represented by John Greiner, Esq., Murphy & Beane, P. O. Box 590, 2 Union Plaza, New London, CT 06320.

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

These Petitions for Review from the June 29, 1999 Finding and Dismissal of the Commissioner acting for the Second District was heard April 14, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.


JOHN A. MASTROPIETRO, CHAIRMAN. Both the respondent insurers and the respondent employer as a self-insured have petitioned for review from the June 29, 1999 Finding and Dismissal of the Commissioner acting for the Second District. Each of the appellants contends that the trial commissioner erred by allotting too much deference to the opinion of the § 31-349c medical panel in considering their request for transfer of liability to the Second Injury Fund. We agree with much of their argument, and reverse the trial commissioner’s decision.

The claimant filed an occupational lung disease claim with an injury date of January 31, 1994. In a September 15, 1994 deposition, he testified that he had been exposed to paint and welding fumes, and possibly asbestos, during his 23 years of employment at the plant. Joint Exhibit 2. He also confirmed that he had smoked a pack and a half of cigarettes per day from the age of 13 until his development of breathing difficulties, and his 1991 hospital records from a pneumonia attack indicate that he had a history of alcoholism as well. All of the doctors who examined the claimant diagnosed him with chronic obstructive lung disease (COPD) secondary to cigarette smoking. While Dr. DeGraff opined in 1994 that the claimant’s lung disease had been accelerated by exposure to irritant fumes in the workplace, Dr. Godar professed that any such exposure at most caused a transitory exacerbation that produced no significant long-term effects. Findings, ¶¶ 25-30. He found no evidence of asbestosis or pleural disease. Findings, ¶ 31. Nevertheless, the respondent employer accepted liability for the lung disease claim by issuing a voluntary agreement that was approved on May 31, 1995, and began paying the claimant total disability benefits as of February 1, 1994. The agreement specified Dr. DeGraff as the claimant’s licensed treating physician.

Several years passed, during which the respondents timely notified and re-notified the Second Injury Fund of their intent to seek a transfer of liability for this case pursuant to § 31-349. As the Fund contested the matter’s medical qualifications for transfer, the parties referred the case to the Chairman of this Commission for submission to the medical panel established by § 31-349c.1 The panel issued its report on April 27, 1999, stating that it had reviewed the reports of seven different doctors, including Drs. Godar and DeGraff, along with Dr. Godar’s January 12, 1995 deposition, various hospital records, several chest x-rays and a 1991 CT scan.

“Based on the information provided,” stated the report, “it is our expert professional opinion that the claimant’s occupational environment is not causally related to the stated diagnosis of chronic obstructive pulmonary disease.” Joint Exhibit 1. “[T]he claimant had a significant prior condition of bronchitis/emphysematous and the asbestos did not attribute to the claimant’s condition therefore, the asbestos did not cause a materially and substantially greater disability combined with the accident of February 1, 1994 than that which would have occurred due to the injury alone.” Id. Though the panel confirmed the claimant’s severe COPD, it was deemed to be due to his cigarette smoking with no impairment traceable to work. The “Second Injury Fund, therefore, has no relevance.” Id. The trial commissioner reasoned that this conclusion was binding on all parties as per § 31-349c, though he also expressed a belief that certain portions of the panel’s report appeared to be internally inconsistent. He therefore dismissed the respondents’ claim for transfer. They now appeal that ruling to this board.

Initially, we must rule upon a Motion to Dismiss by the Fund that challenges this board’s subject matter jurisdiction over the instant case. We will not delve into its merits with great detail, however, as we have addressed its arguments in previous cases. Simply put, the Fund contends that this appeal has been rendered moot by the language of § 31-349h, which provides in part, “All claims not transferred to the Second Injury Fund, on or before July 1, 1999, shall remain the responsibility of the employer or its insurer.” We have already held that, in our view, § 31-349h does not foreclose an employer or insurer from appealing a final judgment of a trial commissioner on the ground that said commissioner committed error in his application of the law. Zeoli v. Norwalk Hospital Association, 3974 CRB-7-99-2 (March 13, 2000); see also, Kuban v. Bridgeport Hospital, 3926 CRB-4-98-11 (Sept. 23, 1999), appeal dismissed, A.C. 20100 (Jan. 5, 2000) (discussing § 31-349(f)).2 Our analysis of the statute has not changed since those cases were decided. Therefore, we deny the Fund 2’s Motion to Dismiss.

Our excursion into the merits of the respondents’ appeals compels us to retrace the analytical path we recently trod in Johnson v. East Haven Hay & Grain Supply, Inc., 4075 CRB-3-99-7 (Aug. 10, 2000), and Fish v. Caldor, Inc., 3840 CRB-7-98-6 (May 11, 1999). In those cases, we discussed the scope of the medical panel’s exclusive authority in light of its statutory mandate to address “all controverted issues regarding the existence of a previous disability.” After examining the language of the statute, its legislative history, and the traditional importance of affording due process to litigants in American jurisprudence3, we resolved that the narrowest possible construction of § 31-349c should be adopted “in order to contain the number of issues that would be resolved without the traditional procedural safeguards of the workers’ compensation forum.” Johnson, supra. We held that a trial commissioner is only bound to accept the findings of the medical panel insofar as they establish the existence of a previous permanent partial impairment. The legal consequences of that injury, i.e., whether the previous injury has combined with a subsequent injury to cause a materially and substantially greater disability than would have occurred due to the second injury alone, remain within the jurisdictional purview of the trial commissioner. Relevantly, we then added that a trier is not precluded from choosing to rely on the medical panel’s analysis of the effect of a preexisting disability as long as that analysis is itself based upon adequate evidence in the record. Id.

Here, it appears that the commissioner underestimated the extent of his own factfinding discretion. He concluded that, “Although certain portions of the [panel’s] report appear to be internally inconsistent, the Panel’s conclusion ‘Second Injury Fund therefore, has no relevance,’ is binding on all parties pursuant to C.G.S. 31-349c.” Findings, ¶ M. This overstates the legal effect of the panel’s report. The commissioner should instead have accepted the medical panel’s finding regarding the existence of the claimant’s preexisting COPD, which were binding under § 31-349c, and himself applied that finding to the circumstances of the claimant’s subsequent injury. In other words, given that the claimant suffered from COPD, the trier should have decided whether he also (1) sustained compensable workplace exposure that (2) was exacerbated, amplified, or otherwise made worse by the COPD, thus producing a materially and substantially greater disability. See Fish, supra. Accordingly, this case will have to be remanded.

In light of our discussion in the last full paragraph of the Fish opinion, we also observe that the approved voluntary agreement in this case does not establish that the claimant sustained any permanent partial impairment from his occupational exposure. Instead, it merely sets forth his compensation rate and the date his total incapacity began. Though it carries the force of an award under § 31-296, this limited agreement is unlikely to have a significant bearing on the trial commissioner’s resolution of the isolated factual question posed by § 31-349: did the claimant’s preexisting condition combine with the subsequent exposure to produce a worsened condition than that which would have been caused by the exposure alone? It is possible that the trier might concur with the medical panel’s impression that the claimant’s exposure to asbestos and other chemicals at the workplace had no impact on his current disability, in which case he must deny the respondents’ request for transfer. Whatever his conclusion, though, the commissioner must independently assess the preliminary findings and evidence under § 31-349, including the medical panel’s report, the voluntary agreement, and the other medical evidence, in deciding the mixed question of fact and law that is before him—particularly given his assertion that the panel’s report is internally inconsistent.

The trial commissioner’s decision is accordingly reversed, and the case is remanded for further proceedings.

Commissioner Leonard S. Paoletta concurs.

ROBIN L. WILSON, COMMISSIONER, DISSENTING. Recently, this board decided the case of Mulroy v. Becton Dickinson & Co., 4083 CRB-5-99-7 (Sept. 29, 2000), which opinion quoted liberally and favorably from another recent decision, Johnson v. East Haven Hay & Grain Supply, Inc., 4075 CRB-3-99-7 (Aug. 10, 2000). Though a member of the Mulroy panel, I did not write separately to distinguish my views from those of my peers because the discussion of Johnson was ancillary to the ultimate disposition of the Mulroy case, and it was unnecessary for me to elaborate on my views at that time. Specifically, in Mulroy, the Second Injury Fund did not meet the threshold requirement of invoking the jurisdiction of the medical panel by providing evidence that there was a legitimate dispute regarding the existence of a previous disability. A more detailed discussion of the medical panel’s role would thus have been superfluous.

Now, in the instant case, my personal viewpoint must be defined, because I disagree with my fellow panelists’ holding that the medical panel is merely empowered to make a “yes or no” identification of a preexisting physical impairment under § 31-349c as discussed in Johnson and its progenitor Fish v. Caldor, Inc., 3840 CRB-7-98-6 (May 11, 1999). The legislative history displays a different analysis of the panel’s role. Indeed, a review of the debate that preceded the partial closure of the Second Injury Fund in 1995 reminds the reader of our lawmakers’ unswerving intention to quickly assess and eliminate as much of the Fund’s future financial liability as was practicable. The medical panel’s authority to resolve all factual issues concerning the existence of a previous disability should thus be afforded considerable respect, as a restrictive reading of § 31-349c is inconsistent with the furtherance of that legislative goal.

Public Act 95-277 is the product of a movement to reduce the financial burden on the Second Injury Fund that was initiated in 1993, when the General Assembly passed P.A. 93-228. Accompanied by many substantive reforms to the Workers’ Compensation Act, § 31(a) of P.A. 93-228 directed the Legislative Program Review and Investigations Committee to conduct a study of the Fund that would include “(1) a determination of the impact that dissolution of the fund would have on businesses located in this state, (2) a determination of the unfunded liability, (3) a determination of the impact of the federal Americans with Disabilities Act upon the fund, and (4) an analysis of factors and conditions associated with the explosive growth of the workers’ compensation system and its impact on the second injury fund.” The committee was required to report its findings to the legislature by January 1, 1994. Id., § 31(b). It found that there were few individual or market incentives to control growth in the scale and cost of the Fund, and expected the ballooning fund to continue to grow at an extraordinary rate without some sort of legislative reform. Meanwhile, the purpose of the Fund—to encourage employers to hire workers previously injured on the job or otherwise handicapped—had been obviated by state laws preventing discrimination against handicapped individuals and by the federal ADA. The committee concluded that “there is no compelling policy reason for continuing the true second injury functions of the Second Injury Fund.” March 1994 report, p. 38.

In response to these findings, the General Assembly passed Special Act 94-11, requiring the state treasurer to conduct another study of the Fund in order to: “(1) Determine the mission and purpose of the fund; (2) examine the feasibility of allowing employers to self-insure their second injury fund exposure; (3) review case management alternatives for second injury fund claims and (4) examine the financial structure of the fund, including the manner in which employers and carriers are assessed, to determine methods of reducing costs.” That study was completed in December 1994. In testimony before the joint standing committee on labor and public employees (to whom the treasurer was required to report his findings and recommendations), Treasurer Christopher Burnham and Assistant Treasurer Kevin Saba stressed the importance of not only closing the Fund to new injuries, but also of reducing the existing financial liability of the Fund as quickly and efficiently as possible. Conn. Joint Standing Committee Hearings, Labor and Public Employees, Pt. 1, 1995 Sess., pp. 1033-57. “I’m interested with the swiftest, most equitable, fairest solution to not only our workers, but also to the citizens of Connecticut. . . . [A]ny additional incremental increase in the assessment to pay off this liability is going to affect the economy and the job growth and the wage growth here in Connecticut.” Id., 1052 (remarks of Treas. Burnham). In the following weeks, the House and Senate passed P.A. 95-277, which drastically revised § 31-349 and established a strict, time-sensitive set of notification procedures that insurers and self-insured employers were required to use if they wished to attempt to transfer liability for any outstanding injuries that had not yet been presented to the Fund.

As this board noted in Johnson, supra, there was little in-depth discussion of the medical panel’s role in the legislative history appurtenant to P.A. 95-277. However, the few comments that are present in the record all support a considerable grant of authority to said panel, particularly the statement of former Workers’ Compensation Commission Chairman Jesse M. Frankl, who said that the doctors would “sit as a panel in that they’re going to get . . . the medical sent to them, and they’re [going to] then vote whether or not it’s transferable []. And by a majority, it will be binding on the commission.” Johnson, supra, citing Joint Committee Hearings, supra, pp. 1062-63. Unlike the Johnson CRB panel, I would not downplay this remark by explaining it away as contextual; Chairman Frankl was heavily involved in the creation of the medical panel, and was a member of the “blue ribbon commission” that performed the study required by S.A. 94-11. Given the express language of § 31-349c, which specifies that “all controverted issues regarding the existence of a previous disability under section 31-349” should be submitted to the medical panel, I would read his comment as consistent with the fairly broad implications of the phrase “all controverted issues” and the word “regarding.” Indeed, the restrictive interpretation of the medical panel’s authority that is advocated in Johnson is a less natural reading of the statute’s language than the interpretation advocated by the Fund. Reason itself suggests that the legislature would not have bothered to create the medical panel unless it wished that panel to play a meaningful and significant role in expediting the disposition of the outstanding § 31-349 workers’ compensation cases.

In my view, the Johnson and Fish decisions are borne of an institutional concern that the commissioners’ experience and discipline in the art of jurisprudence might unwisely be circumvented in favor of a less dependable but procedurally efficient method of deciding issues relating to the mixed factual-legal question of medical qualification for transfer. I can well appreciate that concern. In fact, I share it, for I am also a commissioner who apprehends the intricacies and complexities of workers’ compensation law, and the difficulty of leaving its interpretation to laymen, even well-educated laymen such as physicians. But those concerns do not obscure the clear mandate of our legislature, which was to reduce the liability of the Second Injury Fund as drastically as possible, and to expedite the quantification of the Fund’s debt by resolving pending cases as quickly as possible. The primacy of that goal is quite clear from the available history.

As the majority noted, in Cece v. Felix Industries, Inc., 248 Conn. 457 (1999), our Supreme Court held that the legislation establishing the Second Injury Fund does not create private vested contractual rights that are entitled to due process protection. In my mind, this should impact our analysis here. Where the language of a statute and the legislative policy behind its enactment are clear and consistent, it is the duty of this board to interpret the statute as it is written, and not to impute to it unstated caveats and restrictions. Luce v. United Technologies Corp., 247 Conn. 126, 133 (1998). A court should not overextend constitutional theories such as “due process” to distort the words of a statute in order to wring out of it a desired interpretation. Pierce v. Albanese, 144 Conn. 241, 247 (1957), appeal dismissed, 355 U.S. 15. A workers’ compensation statute falls within the ambit of the legislature’s police powers. New York Central Railroad Co. v. White, 243 U.S. 188 (1917); Pascarelli v. Moliterno Stone Sales, 14 Conn. Workers’ Comp. Rev. Op. 328, 330, 2115 CRB-4-94-8 (Sept. 15, 1995), aff’d, 44 Conn. App. 397 (1997). It is not the place of this board to question the wisdom of police legislation that is designed to protect the public welfare, particularly since we are not empowered to determine the constitutionality of statutes in the first place. See Pierce, supra, 249. I believe that the majority has committed that transgression in this case, and in its predecessors, by placing artificial limitations on the authority of the § 31-349c medical panel to determine whether a previous injury has combined with a subsequent injury to cause a materially and substantially greater disability than that which would have occurred due to the second injury alone. Accordingly, I dissent.

1 Section 31-349c(a), which took effect on July 1, 1995 as part of P.A. 95-277, provides that “[t]he custodian of the Second Injury Fund and an insurer or self-insured employer seeking to transfer a claim to the fund shall submit all controverted issues regarding the existence of a previous disability under section 31-349 to the chairman of the Workers’ Compensation Commission. The chairman shall appoint a panel of three physicians, as defined in subdivision (17) of section 31-275, and submit such dispute to the panel, along with whatever evidence and materials he deems necessary for consideration in the matter. The panel may examine the claimant, who shall submit to any examination such panel may require. Within sixty days of receiving the submission, the panel shall file its opinion, in writing, with the chairman, who shall forward it, along with any records generated by the panel’s work on the case, to the commissioner having jurisdiction over the claim in which the dispute arose. The panel’s opinion shall be determined by a majority vote of the three members. Such opinion shall be binding on all parties to the claim and may not be appealed to the Compensation Review Board pursuant to section 31-301.” BACK TO TEXT

2 The Appellate Court records show that the respondent’s appeal in Kuban was dismissed following a motion by the Second Injury Fund to dismiss the appeal based on (1) the mandates of § 31-349h and the related § 31-349(f), and (2) the Fund’s allegation that the case had already been settled. However, the court did not explain the basis of its ruling, and our research shows that the respondent failed to file a timely objection to that motion. This leaves the court’s ruling with little precedential value, though we acknowledge that the Fund’s argument regarding § 31-349h is facially plausible enough that, particularly standing unopposed, a court might find it persuasive. Although the respondent filed a motion requesting that the court reconsider its dismissal of the appeal on January 10, 2000, the respondent also conceded that it had been somewhat at fault for not filing a timely objection. Thus, we are unable to draw a strong message regarding the proper interpretation of § 31-349(f) and § 31-349h from the court’s denial of the request to reconsider, and its granting of the Motion to Dismiss. BACK TO TEXT

3 In its brief, the Fund sets forth several assertions relevant to the subject of this board’s authority to address issues that possess constitutional undertones. We agree that this board is neither an Article III court under the federal Constitution nor a tribunal that exists under Article Fifth, § 1 of the Connecticut Constitution; Fish, supra; and acknowledge that we cannot, as such, assert jurisdiction to determine the constitutionality of statutes. We also acknowledge our Supreme Court’s holding in Cece v. Felix Industries, Inc., 248 Conn. 457 (1999), where it held that § 31-349(e) (the renotification provision of P.A. 95-277) does not violate the contract clause or the due process clause of the United States Constitution because the legislation establishing the Second Injury Fund did not create private vested contractual rights that are entitled to due process protection. With respect to that holding, we do not believe that Cece translates into a clear affirmation that due process concerns may play no part in the administration of proceedings involving disputes between the Fund and the various employers and insurers who seek relief from it. The constitutionality of legislation (which is rebuttably presumptive) is a different issue from the practical interpretation of the law and the administration of cases within the context of our legal system.

However, we earnestly disagree with the Fund’s assertion that this board went beyond its jurisdiction in Fish by basing its analysis on “the employer’s alleged constitutional right to due process,” simply because due process is a constitutionally-created right. Brief, 13. This board could not effectively interpret statutes and accomplish its statutory mandate if it were powerless to consider due process issues in reading statutes and resolving disputes between parties. Certainly, the reliability of our decisions would be highly suspect if parties could not be sure that this commission took basic constitutional rights into account as part and parcel of the determinations it was making as to the proper meaning of the law. See, e.g., Vetre v. State of Connecticut, 3948 CRB-6-98-12 (Feb. 14, 2000) (CRB cited importance of due process in ordering that state be provided with opportunity to re-address issues that it had raised before a different CRB panel several years earlier); Borici v. State of Connecticut/Southbury Training School, 3718 CRB-6-97-11 (Jan. 14, 2000) (state asserted denial of due process insofar as it had not received notice of formal hearing). This panel strongly prefers to advocate a more thoughtful application of the law that takes into account all of the valued principles that underlie our legal system. BACK TO TEXT

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