Pizzuto v. State of Connecticut Department of Mental Retardation-Southbury Training School

The claimant was represented by Matthew Dodd, Esq., Dodd, Lessack, Dalton & Dodd, L.C.C., 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The respondent was represented by Michael Belzer, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 16, 2005 Finding and Award of the Commissioner acting for the Fifth District was heard January 20, 2006 before a Compensation Review Board panel consisting of Commissioners Nancy E. Salerno, George Waldron and Ernie R. Walker.

OPINION

NANCY E. SALERNO, COMMISSIONER. The respondent, State of Connecticut/DMR appeals from a Finding and Award granting the claimant, Bernadette Pizzuto, benefits under § 31-308a C.G.S. for a 1989 back injury when she had suffered a later aggravating injury to the same body part. We find error and sustain the appeal.

The facts are not disputed. The claimant has been employed by the respondent, State of Connecticut/DMR and suffered two injuries while employed by the same employer. On January 17, 1989 she suffered a compensable lumbar spine injury and underwent two surgeries thereafter. She received 104 weeks of benefits under § 31-308(a) and a 20% permanent partial disability rating. She did not receive an award for § 31-308a benefits for the first injury.

Having returned to her position at DMR, she sustained a second lumbar spine injury on July 2, 2000. The second injury did not require surgery but aggravated the initial injury, increasing her disability rating from 20% to 25%. She received an award of 18.7 weeks of benefits for the additional five percent disability rating. She also received 18.7 weeks of benefits under § 31-308a for this second injury. She has been unable to return to her prior position and is receiving a disability pension from the state and working as a substitute teacher.

The claimant then sought § 31-308a benefits for the wage differential between her substitute teaching post and her prior position. Since she has received a § 31-308a award for the second injury, she sought the award based on the first injury. The trial commissioner held a formal hearing from which he issued a Finding and Award on June 16, 2005, awarding the claimant 104 weeks of § 31-308a benefits based on the first injury.1 The respondent filed a Motion to Correct and a Motion to Reopen Judgment based on their position that the holding in Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003) disallowed awards for a first injury after a second injury had occurred to the same body part. The trial commissioner denied these motions and the respondent appealed.

The ultimate issue for our consideration is whether the trial commissioner erred in awarding § 31-308a benefits on the basis of the first injury alone. The appellant bases this argument on the Supreme Court’s decision in Hatt. Following the time of proceedings at the trial level, this board has had further occasion to consider Hatt and its implications, and to resolve ambiguity that may have existed regarding the state of the law. A comparison of the Finding and Award herein to similar cases we have decided since this appeal leads us to conclude this previous ambiguity has been resolved and it is impossible to distinguish this case from other cases where we reached a contrary result.

The case of Houghton v. Town of Andover, 4949 CRB-2-05-6 (May 18, 2006)2 is controlling over the circumstances herein. In that case, the claimant sustained two separate lumbar injuries while working for the same employer, the first incurred in 1995, the second in 2002. Similar to the case at bar, the second injury increased the claimant’s permanent partial disability rating from 15% to 21%. The trial commissioner awarded the claimant 78.54 weeks of § 31-308a benefits, and apportioned 56.1 weeks against the carrier responsible for the first injury.

The CRB reversed the apportionment of the award against the carrier for the first injury. We determined that the Hatt case precluded apportioning a benefit received after a second injury aggravated a first injury against the party responsible for the first injury. Simply put “the insurance carrier on the risk at the time of the second injury assumes liability thereafter.” Houghton, supra.

The commissioner in the present case “found it compelling” that the claimant worked for the same employer when she sustained both compensable injuries. Findings, ¶ C. Since our holding in Houghton involved an employee who also worked for the same employer at the time he was hurt in two separate accidents, we now cannot find that rationale compelling to justify a deviation from the precedent in Hatt.3 To determine otherwise would be to permit apportionment for a second injury against a first injury when an employee is hurt again working for the same employer, but to prevent such an apportionment if she were to change jobs prior to suffering a second injury. We do not find statutory support for such a divergent result.4

Our decision in Fantano v. Stop & Shop Companies, Inc., 4946 CRB-3-05-5 (May 19, 2006) delineates the factual elements required in order to assess benefits against an initial injury when the claimant suffers a second compensable injury. In Fantano, the claimant injured different body parts and the treating physician testified that he could distinguish between the two injuries and that the initial injury returned to a “baseline” condition. In that case, we distinguished the circumstances from Hatt on factual grounds and upheld the trial commissioner who found the employer continued to have responsibility for the first injury. In the present case, the same body part was reinjured and the original injury was aggravated. This places the entire weight of the injury going forward on the second injury.

It is understandable how at the time of the Formal Hearing the trial commissioner concluded the law in regards to the imposition of a § 31-308a award was unsettled. Since that time we believe the decision in Houghton, supra, has clarified the status of the law and compels our decision herein.

We are mindful of the remedial and humanitarian purpose of the Workers’ Compensation Act. This Act does provide that an injured worker after a second injury still may receive § 31-308a benefits if ordered by the trial commissioner. In the case of a second injury aggravating a first injury, sole liability for such benefits is imposed on the second injury and the claimant is only entitled to whatever benefits are statutorily provided for at the time of the second injury.5 The claimant is entitled to pursue whatever benefits she is legally entitled to receive regarding the second injury.

Accordingly, we reverse the Finding and Award.

Commissioners George Waldron and Ernie R. Walker concur in this opinion.

1 The hearing was continued over the period of December 16, 2003, January 19, 2005 and February 22, 2005. BACK TO TEXT

2 Houghton is presently on appeal to the Appellate Court, A.C. Docket No. 27723. BACK TO TEXT

3 In Houghton, the same employer had different insurance carriers for the two separate injuries. We find this of no legal significance in regards to whether an award after a second injury can be assessed in part to the first injury, and believe the rationale behind the Houghton opinion is equally applicable had a single insurance carrier for the same employer covered both injuries. BACK TO TEXT

4 While the term “apportionment” does not appear in the present Finding and Award, the practical result of relating to a post second injury § 31-308a award back to the initial injury is the same in this case and we believe this is a distinction without a difference. There will be few circumstances, if any, where a commissioner could order a § 31-308a award against a first injury after a second injury, and since this case is factually similar to Houghton, supra, and not Fantano, supra, we do not find this permissible in this case. BACK TO TEXT

5 Claimant advances no legal authority for relating back a post second injury 31-308a award to the statutory scheme in existence at the time of the first injury. While certainly the trial commissioner may have sensed the claimant had lost out on her opportunity for such benefits prior to the second injury or the passage of Public Act 93-228 limiting the duration of such benefits, under the circumstances in this case these benefits can now only be applied based on the statute in effect at the time of the second injury. BACK TO TEXT