Summary
In Thomen, supra, we ruled that § 31-299b was not applicable where two separate compensable traumatic incidents had occurred to the claimant's right wrist, even though both injuries contributed to the claimant's overall permanent disability.
Summary of this case from MILARDO v. EIS/DIV. PARKER HANNIFINOpinion
CASE NO. 1324 CRD-5-91-10
DECEMBER 23, 1993
The claimant was represented by Thomas G. Parisot, Esq., Secor, Cassidy and McPartland.
The respondents were represented by David A. Kelly, Esq. and F. X. Drapeau, Esq., Montstream and May.
This Petition for Review from the October 8, 1991 Finding and Award and the October 18, 1991 Denial of a Motion for Apportionment Under 31-299b of the Commissioner for the Fifth District was heard November 20, 1992 before a Compensation Review Board panel consisting of Commissioners John A. Arcudi, Frank J. Verrilli and George A. Waldron.
OPINION
Because the claimant employee had two compensable right wrist injuries, in 1981 and 1989 respectively, the 1989 insurance carrier attempted under Sec. 31-299b, C.G.S. to apportion liability with the carrier for the 1981 injury. This appeal arises from the Fifth District denial of that request.
General Statutes Sec. 31-299b provides in pertinent part: "If an employee suffers an injury or disease for which compensation is . . . payable . . ., the employer who last employed the claimant . . ., or the employer's insurer, shall be initially liable for . . . payment. . . . The commissioner shall . . . determine whether prior employers, or their insurers, are liable for a portion of such compensation. . . . If prior employers are . . . 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."
Claimant's 1981 injury resulted in the death of the lunate bone in the right wrist. Dr. Kirk Watson, the Hartford orthopedic surgeon who treated claimant, performed surgeries in September, 1982 and June, 1983, first fusing three small bones in the wrist and subsequently replacing the dead bone with a plastic implant. The doctor rated the claimant as having a twenty (20%) percent disability of the right wrist due to the 1981 injury.
Thereafter, claimant resumed heavy manual labor without any apparent impediment from the wrist disability. However, during that period Dr. Watson tried unsuccessfully to contact the claimant in order to perform a third surgical procedure, the removal of the plastic implant. The second compensable right wrist injury occurred September 19, 1989 while the employee was using a heavy thirty-five pound drill.
Dr. Watson again treated him. He performed two more surgical procedures, first removal of the implant which had caused reticulate synovitis and then a proximal carpectomy in April, 1990. It is also probable that claimant will have to undergo further surgery, a fusion of the wrist.
In deposition testimony (Claimant's Exhibit 2, pp. 22-23) Dr. Watson testified: "If the claimant] had been on the ladder, with that commercial drill in [1989], with a normal wrist, he probably would have injured his wrist, but he would not have a wrist that will end up with a fusion. He had a wrist that had death of the bone, which is a major problem to the wrist, which we had salvaged up to a point, and therefore, I would say that about sixty-five percent of his wrist, both his fusion and his ultimate permanent disability, are a result of his having Kienbock's disease, death of the bone, and thirty-five percent are the result of a change in the pattern that occurred from a fairly well documented injury in late [1989]. . . ."
Initially, the issue before the trial commissioner was whether the September 19, 1989 drilling incident was a new injury or a Sec. 31-307b, C.G.S. recurrence of the prior 1981 injury. The trier found the claimant suffered a new injury in 1989 which increased the permanent partial disability of the wrist by fifteen (15%) percent. He ordered the 1989 insurance carrier to pay the additional permanent partial disability and all other disability and medical expenses after the 1989 accident.
At that juncture, relying on Dr. Watson's testimony, cited above, the 1989 carrier requested a Sec. 31-299b order requiring the 1981 carrier to pay sixty-five (65%) of all benefits due. The commissioner denied the motion on October 18, 1991, and the respondents filed a request to reconsider on October 25, 1991. That request was ultimately denied.
We note that the respondents requested that the commissioner impose liability on the employer and carrier for the 1981 injury on the basis of the record of the hearing which established the compensability of the 1989 injury. Our review of the district file discloses that the 1981 employer was neither notified of that hearing nor present at the hearing. The first notice to the 1981 employer and its insurer appears to be a January 30, 1992 notice of an informal hearing regarding the apportionment issue, which notice and hearing occurred after the decision and the hearing on which it is based, which are the subject matter of this appeal.
On October 29, 1991, the trial commissioner took "no action at this time" with respect to the motion for reconsideration, but granted the respondents' request to hold an additional formal hearing on the issue of apportionment. An informal hearing on the apportionment issue was apparently scheduled for March 5, 1992, but no formal hearing appears to have taken place. In any event, the trial commissioner later denied the respondents' motion for reconsideration on May 4, 1992. The present appeal is properly addressed to that decision as well.
The mistaken reliance by Northbrook, the 1989 carrier, on Dr. Watson's testimony derives from an incorrect apportionment theory. The apportionment statute applicable here is Sec. 31-349, C.G.S., not Sec. 31-299b, C.G.S. Section 31-349 codifies the workers' compensation analogue to an ancient doctrine in the common law of torts. That tort theory makes the last causation event in the chain of causation liable for the resultant damages. See Lovett v. Atlas Truck Leasing, 171 Conn. 577, 581-82 (1976); Jacques v. H.O. Penn Machinery Co, 166 Conn. 352, 356 (1974). But Sec. 31-349 modifies the last employer's liability by an arbitrary apportionment, i.e. all benefits after the first one hundred and four weeks to be paid by the Second Injury Fund. There is a further provision of Sec. 31-349 enacted in 1979, P.A. 79-376. This reduces the benefits payable to claimant by an amount previously paid for the pre-existing impairment.
That is precisely how Sec. 31-349 operates here. After his 1981 and 1989 injuries, claimant had a thirty-five (35%) percent permanent partial disability of the wrist for which Northbrook as the last employer's carrier was liable. However, as the 1981 carrier had already paid benefits for a twenty (20%) percent wrist disability, Northbrook was only responsible for the added fifteen (15%) percent.
Apportionment under Sec. 31-299b, on the other hand, is the workers' compensation embodiment of common law joint tortfeasor liability "where a single indivisible harm is sustained as a result of the independent, separate, but concurring tortious acts of two or more persons." F. Harper, F. James and O. Gray, 3 The Law of Torts, Sec. 10.1, pp. 3-4 (2d ed. 1986). Section 31-299b apportionment is appropriate in occupational disease and repetitive trauma cases where there is a single injury occurring over a time continuum involving several employers or carriers. The present appeal concerns two separate identifiable traumatic incidents occurring each at a different time but involving the same part of the body.
Section 31-299b was enacted in 1981 to ensure that injured workers receive prompt payment of compensation by imposing initial liability for compensable injury on the last employer and thereafter permitting a commissioner to consider issues relevant to the apportionment of liability among prior employers or insurers. See 24 H. Proc., Pt. 12, 1981 Sess., pp. 3754-55 (remarks of Representatives Frederick A. Gelsi and Paul D. Abercrombie); 24 S. Proc., Pt. 5, 1981 Sess., p. 1416 (remarks of Senator Michael J. Skelley). Furthermore, the relevant legislative history strongly suggests that apportionment was considered most appropriate in occupational disease cases. See e.g., 24 S. Proc., Pt. 5, 1981 Sess., p. 1416, 1418 (remarks of Senator Michael J. Skelley); Conn. Joint Standing Committee Hearing, Labor and Public Employees, Pt. 2, 1981 Sess., pp. 340-341 remarks of Betty Tianti) and 355-56 (remarks of Doug Barnert).
Connecticut's leading case on the 31-299b type of apportionment is Plecity v. McLachlan Hat Co., 116 Conn. 216 (1933). The claimant's occupational disease in that case resulted from mercury poisoning caused in the manufacture of hats. He was exposed to the mercury over a work period during which the employer was insured by several carriers. "The personal injury in this case, the poisoning, is a single injury and the award constitutes a single obligation." Id., 226. Because the Plecity court relied on the common law joint tortfeasor doctrine, it permitted claimant to recover the full amount of benefits due from any carrier he chose. However, practice developed after 1933 caused liability in such cases to be apportioned. This practice was codified by the 1981 enactment of Sec. 31-299b whereby the last employer was obligated to pay the full benefit, but it then had recourse to a hearing in order to apportion liability among all responsible parties.
Mages v. Alfred Brown, Inc., 123 Conn. 188 (1937), is the leading case for the principles later embodied in Sec. 31-349. Claimant there received compensation benefits due to a back injury suffered while working for the first employer. A year later he received a second back injury while employed by another employer. The commissioner ruled both injuries contributed to claimant's disability and charged both employers. The court ruled otherwise. "[T]he second employer and its insurer are responsible to pay full compensation for the claimant's present disability." Id., 195. See also Levanti v. Dow Chemical Co., 218 Conn. 9, 17-18 (1991).
The carrier under Sec. 31-349 may very well be able to apportion liability with the Second Injury Fund, but that is not an issue in this appeal.
We affirm the trial commissioner and dismiss the appeal.
Pursuant to Sec. 31-301c(b), we grant interest at the statutorily permitted rate on any benefit amount remaining unpaid during the pendency of this appeal.
Commissioners Frank J. Verrilli and George A. Waldron concur.