State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Gill v. Brescome Barton, Inc.

CASE NO. 5659 CRB-8-11-6



JUNE 1, 2012















The claimant appeared without legal representation.

The respondents-appellees, Brescome Barton, Inc., and Chubb & Son, were represented by Michael J. Finn, Esq., Montstream & May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The respondents-appellants, Brescome Barton, Inc., and Liberty Mutual Insurance Group, were represented by Marion H. Yun, Esq., Law Offices of Loccisano, Turret & Rosenbaum, 101 Barnes Road, 3rd Floor, Wallingford, CT 06492.

This Petition for Review from the May 19, 2011 Finding and Award of the Commissioner acting for the Eighth District was heard November 18, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Christine L. Engel.


JOHN A. MASTROPIETRO, CHAIRMAN. This appeal deals with whether a trial commissioner failed to follow appropriate precedent in determining that two insurance carriers should apportion the temporary total disability resulting from the claimant’s bilateral knee replacement surgery. The appellant, Liberty Mutual, has appealed arguing that the precedent in Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003) and Malz v. State/University of Connecticut Health Center, 4701 CRB-6-03-7 (August 20, 2004) prevents the trial commissioner from allocating liability in the manner implemented in this case. The appellee, Chubb and Son (“Chubb”), argues that Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338 (1952) authorizes the trial commissioner to proceed in this manner. Upon review, we are not persuaded that any of the precedent brought to our attention governs what appears to be a sui generis fact pattern. We believe that the trial commissioner properly exercised his powers pursuant to § 31-278 C.G.S. to equitably resolve the dispute between the insurance carriers in this instance. The June 7, 2011 Finding and Award is consistent with the agreement reached between the carriers on other issues to resolve this dispute. Moreover, we believe the appeal of Liberty Mutual may be premature as it is impossible at this juncture to know which of the claimant’s knees will heal faster and which carrier will be ultimately responsible for the claimant’s inability to return to the work force. We affirm the decision of the trial commissioner.

The trial commissioner reached the following factual findings in his Finding and Award. He found it was undisputed that Ronald Gill (hereinafter “Claimant”) sustained an injury to his left knee in the course and scope of employment with Brescome Barton on or about July 2, 1997, and that on July 22, 2000 a Voluntary Agreement was reached accepting this injury as compensable. Liberty Mutual was the carrier responsible for this first injury and a compensation rate was set at $302.43 for this injury. The July 2, 1997 injury resulted in a permanent partial disability rating totaling 25 percent. The trial commissioner also noted that a 2009 Voluntary Agreement and a 2008 office note from Dr. Norman Kaplan opining that the claimant would need a total knee replacement within three to five years.

The trial commissioner also noted that it was undisputed that the claimant sustained an injury to his right knee while in the course and scope of his employment with the respondent on or about April 3, 2002, and that the respondent-employer had accepted this injury. The carrier on the risk at the time of the second injury was Chubb and the temporary total disability rate applicable at the time of the claimant’s April 3, 2002 injury was $483.63.

The trial commissioner took administrative notice of an agreement dated March 10, 2010, in which the parties agreed that the carrier on the risk for the second injury would authorize and administer bi-lateral knee replacement surgery and that the carrier on the risk for the first injury would reimburse 50 percent of the surgical costs, incidental expenses and prescriptions related to the surgery not to exceed the workers’ compensation fee schedule. This agreement did not address what rate the claimant would be paid indemnity benefits or address the contribution of each carrier towards indemnity resulting from the surgery. The claimant subsequently accepted the offer of the carrier on the risk for the second injury to pay the claimant, without prejudice, at his relapse rate of $692.75 pursuant to § 31-307(b) C.G.S. for his disability period following the surgery.

The carrier on the risk for the first injury argues that they are not responsible for 50 percent of the relapse rate and instead offered to pay 37 percent of the second carrier’s base rate which equals $181.36, which was rejected. The claimant was scheduled for bi-lateral knee replacement on February 24, 2011, upon the recommendation of his physician and neither carrier disputes that the surgeries are reasonable and medically necessary.

The trial commissioner found this was a unique situation where neither knee injury affects the other injury. The combination of the two surgeries does not result in the claimant being totally disabled - either knee replacement would totally disable the claimant following surgery. The two injuries are separate and distinct injuries that do not in concert totally disable the claimant, and instead, the injuries were concurrent to each other. The decision to undergo both knee replacements simultaneously benefits the claimant in that he has only one period of recovery and also benefits both insurance carriers in that they are able to split many of the surgical and post-surgical costs that would be duplicative had the claimant opted for two separate surgeries.

As a result, the trial commissioner found that bilateral knee replacement was medically necessary and reasonable and that total knee replacement for either knee would result in a period of disability following surgery. While the claimant had reached maximum medical improvement for both injuries his condition has worsened, necessitating knee replacement for both knees and § 31-307b C.G.S. applied to either injury. The trial commissioner found the two knee injuries are separate and distinct injuries and the claimant could have elected to undergo separate surgeries resulting in duplicative medical costs. The commissioner further found that each knee replacement surgery concurrently disables the claimant. Therefore, the commissioner ordered indemnity payments at the relapse rate of $692.75 to be administered by Chubb and ordered Liberty Mutual to reimburse Chubb 50 percent of indemnity payments in addition to the 50 percent of the medical costs already agreed upon.

Liberty Mutual filed a Motion to Correct. The trial commissioner granted corrections which did not materially change the relief approved in the initial Finding and Award. Therefore, Liberty Mutual has taken the instant appeal arguing the relief granted contravenes the precedent in Hatt, supra, and Malz, supra. Liberty Mutual points out that the trial commissioner failed to cite any statutory authority or appellate precedent in his Finding and Award. As the appellant views the law, the Malz precedent is stare decisis over the issues herein. Appellant’s Brief, p. 3. We have reviewed this case and simply find too many factual distinctions between that case and the present case to agree with the appellant’s reasoning.

In Malz, the trial commissioner was presented with two sequential injuries to the claimant’s spine. The first injury was a 1990 injury that resulted in decompression surgery to the claimant’s lumbar spine at the L4-L5 level. The second injury was a 1994 lifting injury to the claimant’s cervical spine that eventually necessitated a discectomy and fusion at the C6-C7 level. Based on those facts the trial commissioner concluded that “Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003), firmly establishes that apportionment is not available where two separate compensable injuries contribute to subsequent disability.” Id. The carrier on the risk for the more recent injury appealed, arguing that Mund, supra, would require an apportionment of liability between the carriers. This tribunal disagreed, for the following reasons.

Where two separate injuries involving different body parts (such as the lower back and cervical spines) combine to render a claimant totally disabled, the employer or insurer on the risk at the time of the second injury does not have a right to apportion liability under a theory of concurrent or shared responsibility. This is demonstrated by cases as venerable as Mages v. Alfred Brown, Inc., 123 Conn. 188 (1937), in which a claimant suffered a compensable spine injury in January 1935 and then a compensable left shoulder and back injury one year later. Both injuries were substantial factors in the claimant’s final incapacity. Our Supreme Court held that, where an initial injury has caused partial incapacity, and a second injury then occurs that leaves a claimant totally disabled, the second employer and its insurer are responsible to pay full compensation for the disability. Id., 194-95.

Malz, supra. (Emphasis added.)

We note that in the present case there are no factual findings that the two separate knee injuries “combined” to render the claimant disabled. The trial commissioner found that either knee injury would have been sufficient to independently render the claimant totally disabled at the time he underwent a knee replacement. There is no medical evidence reflecting any “combined” impact of the two injuries.1 Had the claimant never sustained the more recent injury on his right knee, Liberty Mutual would have been obligated to pay the entire amount due for temporary total disability attributed to the original left knee injury.

We also note that in Malz supra, this tribunal discussed the statutory underpinnings for apportionment of benefits between injuries. We noted that the Supreme Court in Hatt, supra, had evaluated the scope of the two relevant apportionment statutes, § 31-299b C.G.S.2 and § 31-349 C.G.S.3 In Malz, we pointed out the Supreme Court determined that ‘“common-law apportionment between employers and insurers simply did not exist [historically] in a case of separate and distinct second injuries . . . [and] no such apportionment is available in the present case.’ Hatt, supra, 306; see also, Kelly v. Dunkin’ Donuts, 4621 CRB-4-03-2 (April 5, 2004)(CRB discussed holding in Hatt). The court also cited Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635 (1999), in which it held that a first employer or insurer bears no responsibility for the consequences of a second injury under § 31-349 C.G.S. Hatt, supra, 307-308.” Id.

A further review of Hatt, supra, distinguishes that case from the facts in the present case. The Hatt decision drew a parallel with the fact pattern in Mages, supra, where the claimant’s disability was “caused solely by the second accident.” Hatt, supra, 300. The Supreme Court in Hatt pointed out that Mages distinguished itself from a prior case on apportionment, Plecity v. McLachlan Hat Co., 116 Conn. 216 (1933) as in Mages there had been “two separate compensable injuries sustained on different occasions at issue in that case” unlike “the single injury sustained over an extended period of time in Plecity.” Id. The Hatt decision, which endorsed the approach utilized in Mages, supra, barring apportionment, distinguished the facts in that case from the case relied on by the appellees herein, Mund, supra. The Supreme Court concluded “Mund did not contemplate two separate and distinct injuries; rather it was decided in a context involving aggravation of a single preexisting injury.” Id., 306 (Emphasis in original.)4

The ultimate result of Hatt was that the insurer on the risk for the more recent injury was responsible for the entire subsequent liability, as the Supreme Court concluded that neither case law nor statute permitted apportionment under those factual circumstances. In particular, the Supreme Court in Hatt concluded that apportionment under § 31-299b C.G.S. was applicable only to cases of ongoing repetitive trauma or occupational disease. Id., 312-317.

Upon review of all the cases cited by the litigants as authority for their position we are left with the unambiguous conclusion that none of the precedent advanced is truly applicable to the facts at hand. The claimant’s injuries were sustained in two separate incidents and the trial commissioner’s Findings provide no basis for concluding either incident could be deemed a repetitive trauma injury or the result of an occupational disease. Therefore, we agree with the appellant that the precedent in Mund, supra, is inapplicable to the facts at hand. However, we are left equally certain that neither Hatt nor Malz governs the unique facts of this case. Those cases deal with serial or combined disabling injuries. The claimant’s knee injuries herein are totally unrelated based on the facts in the record. The injuries described in Hatt and Malz were clearly interrelated in nature. We do not define a “second injury” as encompassing a subsequent but unrelated accidental injury.

We fully understand that “the workers’ compensation system in Connecticut is derived exclusively from statute . . . . A commissioner may exercise jurisdiction to hear a claim only under the precise circumstances and in the manner particularly prescribed by the enabling legislation.” Cantoni v. Xerox Corp., 251 Conn. 153, 160 (1999). In the present case we find the apportionment statutes and the case law do not address the “precise circumstances” herein. The dispute herein is one of apparent first impression and requires this tribunal to look at the expressed intent of the parties and the statutory approach to compensating total disability injuries in the absence of multiple liable parties. As we noted in Goulbourne v. State/Department of Correction, 5192 CRB-1-07-1 (January 17, 2008), there are lacuna present in Chapter 568 and when they present themselves it is our obligation to reach a reasoned outcome consistent with the totality of the Workers’ Compensation Act.

The trial commissioner in this matter cited an agreement between the parties to share the cost of the bilateral knee replacement. Findings, ¶ 5. The file represents that this agreement was reached on March 10, 2010, before Commissioner Ernie R. Walker and was approved by Commissioner Walker and signed by legal representatives of both parties. In this agreement, the parties agreed to share equally the “surgical costs” and “incidental expenses” of bilateral knee surgery. Given the nature of bilateral knee surgery, it seems self-evident that the claimant would face a period of post-surgical total disability. The agreement in question does not define the term “surgical costs” or “incidental expenses.” We believe in this instance “incidental expenses” would include the unavoidable expense of § 31-307 C.G.S. benefits due the claimant post surgery. The trial commissioner’s June 7, 2011 Finding and Award simply implements the expressed intent of what the parties agreed to in the March 10, 2010 agreement.

We also note that in Chapter 568 there is long appellate precedent against double recoveries. See Nichols v. The Lighthouse Restaurant, Inc., 246 Conn. 156, 164 (1998) and Pokorny v. Getta’s Garage, 219 Conn. 439, 454 (1991). Clearly, any decision that paid the claimant a full disability benefit simultaneously for each separate knee injury would be void as violating public policy. In addition, as the trial commissioner appropriately pointed out in Findings, ¶ 7, it would be irrational to force the claimant to undergo separate knee surgeries and incur a longer period of disability. Clearly, Chapter 568 cannot be interpreted in such a fashion that it creates such an “absurd or unworkable result” First Union Natl. v. Hi Ho Shopping Ventures, 273 Conn. 287, 291 (2005).

At oral argument before this panel, counsel for the appellant argued that applying the Hatt precedent to the facts of this case would be “an equitable outcome.” In light of the agreement her client had previously ratified, we are unpersuaded by this argument. However, we do see a potential for inequity going forward as the claimant recovers post-surgery. The trial commissioner’s decision is operative only as long as both of the claimant’s knees are still in a condition that renders him totally disabled. It is certainly foreseeable that one of the two knees will recover its function following surgery in a more expeditious manner than the other knee. At that juncture, the carrier on the risk for the “healthy knee” will be forced to pay half the cost of § 31-307 C.G.S. benefits and the carrier on the risk for the “injured knee” will reap a windfall. We believe that post-surgery apportionment of disability benefits must be based on contemporaneous medical evidence. Once it is possible to ascertain which body part is responsible for disabling the claimant; the burden of continuing temporary total disability benefits should rest on the insurance carrier responsible for this body part.

We would anticipate that at that juncture either counsel for Liberty Mutual or Chubb will file an appropriate motion under § 31-315 C.G.S. asserting that due to a change in circumstances the other carrier should absorb all or most of the claimant’s continuing § 31-307 C.G.S. benefits. At that point the trial commissioner can consider arguments based on the claimant’s medical condition. Any argument on this issue at this point in time is premature and would be based on conjecture.

We are satisfied that the trial commissioner’s June 7, 2011 Finding and Award did not violate any statutory provision of Chapter 568. We are also satisfied the appellate precedent governing this Commission did not prevent the trial commissioner from implementing this Finding and Award. As we find the Finding and Award consistent with the contractual agreements between the appellant and appellee; as well as the public policy enunciated in Chapter 568, we affirm the trial commissioner’s decision.

Commissioners Scott A. Barton and Christine L. Engel concur in this opinion.

1 In the absence of any probative medical evidence cited in the record, it would be conjecture to determine that the two knee injuries in this case are somehow interdependent as to causation for the claimant’s disability. DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 294 Conn. 132 (2009). BACK TO TEXT

2 The text of § 31-299 C.G.S. reads as follows:

Sec. 31-299b. Initial liability of last employer. Reimbursement. If an employee suffers an injury or disease for which compensation is found by the commissioner to be payable according to the provisions of this chapter, the employer who last employed the claimant prior to the filing of the claim, or the employer’s insurer, shall be initially liable for the payment of such compensation. The commissioner shall, within a reasonable period of time after issuing an award, on the basis of the record of the hearing, determine whether prior employers, or their insurers, are liable for a portion of such compensation and the extent of their liability. If prior employers are found to be so liable, the commissioner shall order such employers or their insurers to reimburse the initially liable employer or insurer according to the proportion of their liability. Reimbursement shall be made within ten days of the commissioner’s order with interest, from the date of the initial payment, at twelve percent per annum. If no appeal from the commissioner’s order is taken by any employer or insurer within twenty days, the order shall be final and may be enforced in the same manner as a judgment of the Superior Court. For purposes of this section, the Second Injury Fund shall not be deemed an employer or an insurer and shall be exempt from any liability. The amount of any compensation for which the Second Injury Fund would be liable except for the exemption provided under this section shall be reallocated among any other employers, or their insurers, who are liable for such compensation according to a ratio, the numerator of which is the percentage of the total compensation for which an employer, or its insurer, is liable and the denominator of which is the total percentage of liability of all employers, or their insurers, excluding the percentage that would have been attributable to the Second Injury Fund, for such compensation. BACK TO TEXT

3 The text of § 31-349(a) and (d) C.G.S. read as follows:

Sec. 31-349. Compensation for second disability. Payment of insurance coverage. Second Injury Fund closed July 1, 1995, to new claims. Procedure. (a) The fact that an employee has suffered a previous disability, shall not preclude him from compensation for a second injury, nor preclude compensation for death resulting from the second injury. If 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, he shall receive compensation for (1) the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability, and (2) necessary medical care, as provided in this chapter, notwithstanding the fact that part of the disability was due to a previous disability. 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.

(d) Notwithstanding the provisions of this section, no injury which occurs on or after July 1, 1995, shall serve as a basis for transfer of a claim to the Second Injury Fund under this section. All such claims shall remain the responsibility of the employer or its insurer under the provisions of this section. BACK TO TEXT

4 In Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338 (1952), the Supreme Court found the claimant had sustained a compensable injury to his L4-5 lumbar spine in 1946 and then sustained a subsequent compensable injury at the L4-5 disc in 1950. The court further stated “[t]he two accidents were, concurring and contributing causes of the plaintiff’s disability since that date, the second injury being superimposed upon and an aggravation of the condition remaining from the first injury.” Id., 341. BACK TO TEXT

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