Opinion
CASE NO. 174 CRD-7-82
NOVEMBER 19, 1986
The claimant was represented by David O. Chittick, Esq.
Respondent-Insurer, Aetna Life Casualty Company was represented by Richard Stabnick, Esq. However they were not a party to the appeal and were not present for oral argument before the Compensation Review Division.
Respondent-Employer and Home Insurance Company were represented by Kevin J. Maher, Esq.
This Petition for Review from the September 8, 1982 Finding and Award of the Commissioner for the Seventh District was heard July 29, 1983 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Rhoda Loeb and Robin Waller.
FINDING AND AWARD
The Finding and Award of the Seventh District Commissioner is affirmed and adopted as the Finding and Award of this tribunal.
OPINION
Claimant injured his back lifting a pool cover on September 23, 1974 in the course of his employment with respondent-employer. He underwent five (5) back surgeries as a result of the injury. During the second surgery, the operating surgeon failed to remove a surgical sponge and as a result, three (3) subsequent surgeries were necessary to remove the sponge and to attend to the other complications resulting from the original failure to remove.
Claimant instituted a medical malpractice action against the surgeon and the hospital which was resolved by settlement in the amount of $50,000. Out of the $50,000, claimant paid counsel fees and disbursements of $16,000 and reimbursed the respondent-insurer Home Insurance Company for benefits paid in the amount of $9,000. Home Insurance Company sought a credit for the remaining $25,000 of the settlement, 31-293 C.G.S., arguing that that sum should be applied as a credit against future benefits for which it may become liable. The trial Commissioner agreed with the respondent's position and awarded such a credit.
Claimant has appealed. The basic issue presented relates to the interpretation of 31-293. Section 31-293 provides where "a legal liability to pay damages . . . (is) in some other person than the employer" with respect to a compensable injury, the employer is entitled to reimbursement for worker compensation benefits paid or payable to his employee.
Sec. 31-293. Liability of third persons to employer and employee. When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of such injured employee against such other person, but such injured employee may proceed at law against such person to recover damages for such injury; and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such other person to recover any amount that he has paid or has become obligated to pay as compensation to such injured employee. If either such employee or such employer brings such action against such third person, he shall forthwith notify the other, in writing, by personal presentation or by registered or certified mail, of such fact and of the name of the court to which the writ is returnable, and such other may join as a party plaintiff in such action within thirty days after such notification, and, if such other fails to join as a party plaintiff, his right of action against such third person shall abate. In any case in which an employee brings an against a third party in accordance with the provisions of this section, and the employer is a party defendant in such action, the employer may join as a party plaintiff in such action. The bringing of any such action against an employer shall not constitute notice to such employer within the meaning of this section. If such employer and employee join as parties plaintiff in such action and any damages are recovered, such damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of such recovery, after the deduction of reasonable and necessary expenditures, including attorneys' fees, incurred by the employee in effecting such recovery. The rendition of a judgment in favor of the employee or the employer against such party shall not terminate the employer's obligation to make further compensation, including medical expenses, which the compensation commissioner thereafter deems payable to such injured employee. If the damages, after deducting the employee's expenses as provided above, are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee. No compromise with such third person by either employer or employee shall be binding upon or affect the rights of the other, unless assented to by him. For the purposes of this section the employer's claim shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury. The word "compensation," as used in this section, shall be construed to include not only incapacity payments to an injured employee and payments to the dependents of a deceased employee, but also sums paid out for surgical, medical and hospital services to an injured employee, the one thousand dollar burial fee provided by law and payments made under the provisions of sections 31-312 and 31-313.
The basic contention of the claimant is that the proceeds of the malpractice claim do net relate to the compensable injury for which the respondent's employer and insurer was to pay benefits. He argued that there was a new injury created by the malpractice tort-feasor and that the proceeds of the new injury should not therefore be apportioned according to Sec. 31-293. Claimant's brief acknowledges that there is no Connecticut law on point but relies instead on the Larson treatise for support, 2A LARSON, WORKMEN'S COMPENSATION LAW 72.65a. In this instance we do not agree with such eminent authority. The second surgery in which the malpractice occurred arose out of the compensable injury to the claimant. So did all the consequences of the surgery. Consequently in our view so did the damages which were the proceeds of that malpractice claim.
The Commissioner's Finding and Award of September 8, 1982 is affirmed.
Commissioners Rhoda Loeb and Robin Waller concur.