Summary
holding that before order against fund may enter, there must be authority to enter award against employer
Summary of this case from Matey v. Estate of DemberOpinion
CASE NO. 594 CRD-7-87
MARCH 28, 1989
The claimant was represented by Robert G. Montstream, Esq., Montstream May.
Respondents Stamford, Dental Lab, Huntergreen Dental Lab, Bon Dental Lab and Aetna Life Casualty were represented by Frank P. Blando, Esq.
Respondents Suburban Dental Laboratory and Greater New York Insurance Company were represented by Edward D. O'Brien Jr., Esq.
Respondents Michael Fieri, D.D.S. and Travelers Insurance Company were represented by Richard S. Stabnick, Esq., and Jason M. Dodge, Esq., Pomeranz, Drayton Stabnick.
Respondents Bonvini Dental Laboratory, Inc. and Bristol Dental Lab, Inc. were not represented at the trial level.
The Second Injury and Compensation Assurance Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General.
This Petition for Review from the May 1, 1987 Corrected Finding and Award of the Commissioner of the Eighth District acting for the Seventh District was heard September 16, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew Denuzze and Frank Verrilli.
OPINION
Claimant's appeal from the May 1, 1987 Corrected Finding and Award seeks to raise issues involved in the interpretation of Secs. 31-299b and 31-301(b).
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 per cent per annum. If no appeal from the commissioner's order is taken by any employer or insurer within ten days, the order shall be final and may be enforced in the same manner as a judgment of the superior court. Sec. 31-301(b) During the pendency of any appeal of an award made pursuant to this chapter, the claimant shall receive all compensation and medical treatment payable under the terms of the award to the extent such compensation and medical treatment are not being paid by any health insurer or by any insurer or employer who has been ordered, pursuant to the provisions of subsection (a) of this section, to pay a portion of such award. All such compensation and medical treatment shall be paid from the second injury and compensation assurance fund pursuant to section 31-354. If, upon completion of the appeal process, the claimant is found to have a compensable injury, the employer or insurer shall be responsible for payment of such benefits and shall reimburse the second injury fund for all sums previously expended, if any, on such claim pursuant to this subsection, plus interest at the rate of ten per cent per annum. If the final adjudication results in the denial of benefits to the claimant, and he has previously received benefits on the claim pursuant to this subsection, the claimant shall reimburse the second injury fund for all sums previously expended, plus interest at the rate of ten per cent per annum. Upon any such denial of benefits, the commissioner who originally heard the case or his successor shall conduct a hearing to determine the repayment schedule for the claimant.
Claimant between 1933 and 1981 was employed at various times and places in and out of the state of Connecticut as a dental laboratory technician. After exposure to various metals, dusts and chemicals between 1959 and 1978 in these places of employment he suffered a compensable occupational disease, squamous cell carcinoma of the larynx. His laryngeal cancer was diagnosed July, 1981 and he underwent a laryngectomy July 14, 1981. In addition to the loss of his larynx, he also sustained a 25% impairment of each lung.
In his Finding and Award, the trial Commissioner apportioned the liability amongst the various respondents according to the period of exposure and the amount of time each insurer or employer was on the risk during claimant's exposure. This apportionment is contained in paragraph #18 of the May 1, 1987 Corrected Finding and Award, as further corrected by the May 11, 1987 ruling. as follows:
% of Total Relevant Name of CT Period of Total Occupational Employer Employment Months Exposure in CT
1) No employer 1/1/59 — 48 * 20.0 @ in CT 12/31/62
2) Suburban 1/1/63 — 52 21.6 Dental Lab 4/30/67
3) No employer 5/1/67 — 19 * 7.9 @ in CT 11/31/68
4) Wilcox 12/1/68 — 2 0.8 Dental Lab 1/31/69
5) Stamford 1/8/69 — 17.75 7.4 Dental Lab 6/30/70
6) No employer 7/1/70 — 36 * 15.0 @ in CT 6/30/73
7) Bonvini 7/1/73 — 1.5 0.6 Dental Lab 9/30/73
8) No employer 7/1/73 — 1.5 * 0.6 @ in CT 9/30/73
9) Michael 10/1/73 — 3 1.2 Fieri, DDS 12/31/73
10) Bristol 1/1/74 — 3 1.2 Dental Lab 3/31/74
11) No employer 4/1/74 — 57 * 23.7 @ in CT 12/31/78 ------ ------ 240 100.0
* Employment by claimant taken from claimant's Exhibit A, and reflects employment in New York and/or New Jersey.
@ Percentage calculated, but not payable by any Connecticut respondent.
Claimant argues that under the statute, Sec. 31-275(8) and (11), there was a single injury to be compensated according to the law in existence at the time of injury. Sec. 31-307 as amended in 1980 states that for an "occupational disease, the time of injury shall be the date of total or partial incapacity to work as the result of such disease." The Commissioner below found the first date of disability to be July 13, 1981, Finding #21. Accordingly, he set a compensation rate of $250.00 based on wages earned immediately prior to that date. Arguing further from this finding of a 1981 injury, claimant then contends that Sec. 31-299b should apply and that the last employer is initially liable for all the compensation due.
Sec. 31-275(8) "Personal injury", or "injury", as the same is used in this chapter, shall be construed to include, in addition to accidental injury which may be definitely located as to the time when and the place where the accident occurred, an injury to an employee which is causally connected with his employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease as herein defined. Sec. 31-275(11) "Occupational disease" includes any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such and includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee in the course of his employment.
However, Sec. 31-299b did not become effective until October 1, 1981, some months after the date of this employee's injury. Therefore the short answer to appellant's argument is that the statute on which he relies was not in effect in July of 1981. But the further contention, although not explicitly verbalized in his brief, seems to be that Sec. 31-299b is like Sec. 31-301(b) a procedural statute, Annechiarico v. Friendly Ice Cream Co., 6 Conn. Workers' Comp. Rev. Op. 18, 640 CRD-7-87 (1988). If its reach were procedural it would not affect substantive rights but merely provide a mechanism for prompt payment with liability for such payment to be apportioned later. That argument might be tenable here if the Commission had jurisdiction over the total employment res which was the causative factor in creating this single injury, i.e. if there were no extra-territorial employers. We have no jurisdiction over the out-of-state employers involved, and the Connecticut employments were not the sole causes of the compensable injury.
Public Act No. 81-155. Section 1. (New) If an employee suffers an injury or disease for which compensation is found by the commissioner to be payable according to the provisions of chapter 568 of the general statutes, 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 per cent per annum. If no appeal from the commissioner's order is taken by any employer or insurer within ten days, the order shall be final and may be enforced in the same manner as a judgment of the superior court.
Some states have simply made the last employer in the chain of causation liable for the entire injury. But Connecticut has not done this with Sec. 31-299b. It specifically provides for apportionment of liability. Appellant's argument instead would interpret Sec. 31-299b as analogous to a rule in tort law where any of several joint tort-feasors is liable for the entire verdict. That would be a gross misreading of the 1981 amendment. Also relevant is Sec. 31-355 which makes the Second Injury Fund a guarantor for payment of awards which the initially liable employer has not paid. Here again before an order for payment against the surety may enter, there must be authority to enter an award against the primary obligor, the employer. So the Commission would have no jurisdiction to order Sec. 31-355 payments by the Fund if we had no jurisdiction over the extra-territorial employment res.
See, A. Larson, 4 Workmen's Compensation Law, Sec. 95.33 (1988).
We therefore dismiss the appeal and affirm the Finding and Award of the trial Commissioner.