Opinion
CASE NO. 815 CRD-2-89-1
MAY 15, 1990
The claimant was represented by Richard L. Gross, Esq., Sklarz Early, P.C.
The respondent-Travelers was represented by Marjorie Drake, Esq., Naab, Beach Clendaniel. However no brief was filed nor did the respondent-Travelers appear at oral argument.
The respondent-Aetna was represented by Lucas Strunk, Esq., Pomeranz, Drayton Stabnick.
The Second Injury Fund was represented by Michael Belzer, Esq., Assistant Attorney General. However, they did not appear at oral argument.
This Petition for Review from the January 18, 1989 Finding and Award of the Commissioner for the Second District was heard February 2, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners James Metro and George Waldron.
OPINION
Underlying the present appeal is an attack on the system for apportionment of liability first adopted by the legislature in 1967 and now contained in Sec. 31-349(a), C.G.S. Claimant received a compensable back injury July 19, 1985 as attested by a Voluntary Agreement between the approved October 25, 1985 in the second district. At the time Aetna Casualty Surety Co. was the workers' compensation carrier for Dow Chemical Co., the employer respondent. Before 1967 claimant had experienced work related back injuries with the employer. Other carriers then insured the risk. On those occasions the law did not provide specific indemnity for permanent partial disabilities of the back. That provision, now Sec. 31-308(b)(13), was enacted in the same 1967 legislation 1967 P.A. 842.
Sec. 31-349 provides in pertinent part: (a) The fact that an employee has suffered previous disability, or received compensation, therefor, shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom. If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability, including total disability, less any compensation benefits payable or paid with respect to the previous disability, and necessary medical care, as elsewhere provided in this chapter, notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes. The employer by whom the employee is employed at the time of the injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability.
The second district commissioner found claimant had suffered a fifteen per cent permanent partial disability of the back as a result of the 1985 injury combined with the impairment suffered from the previous injuries. He ordered respondent Aetna to pay seventy eight weeks specific benefits for that fifteen per cent disability. Aetna argues that it should only pay the percentage of disability attributable to the 1985 incident, i.e. five per cent or twenty-six weeks. This figure was based on the testimony of Dr. S. Pearce Browning III, a Norwich orthopedic surgeon. Dr. Browning had concluded that claimant had incurred a five per cent permanent partial disability for a 1954 accident, five per cent for a 1962 accident and five per cent for the 1985 injury.
Apportionment of liability devices in our statute had their genesis in the common law ancestry of workers' compensation. An ancient principle of the common law of torts is that the tortfeasor takes his victim as he finds him. Thus unless there is contributory negligence, the tortfeasor's liability is not diminished because the victim's preexisting handicap caused him to be more prone to injury. Connecticut very early imported this tort concept into workers' compensation, Fair v. Hartford Rubber Works Co., 95 Conn. 350 (1920). Fair was blind in the left eye. A work injury blinded the right eye causing total blindness. The commissioner therefore ordered benefits for total disability. The court affirmed rejecting the employer's contention that it only should pay for the right eye work injury.
As discussed in Jacques v. H.O. Penn Machinery Co., 166 Conn. 352 (1974) and reviewed in our own decision Funaro v. Town of Hamden, 7 Conn. Workers' Comp. Rev. Op. 40, 649 CRD-3-87, (1989), Fair made employers more reluctant to hire handicapped workers. In response to employer fears legislation was then enacted permitting handicapped workers to sign waivers excusing their employers from payment of any future compensation attributable to the waived defects. Shielding the employer from liability for the waived preexisting defects left employees in a precarious position.
Therefore in 1945 the Second Injury Fund was created by assessing all insurers and self insurers in the system. Under that legislation the employer was only liable for disabilities attributable to his employment. Compensation attributable to preexisting impairments was paid by the newly established fund. By this device the 1945 legislature reconfirmed the Fair rationale, i.e. the employee to be paid for the entire resulting disability but liability to be apportioned between the employer and the fund.
Thereafter the 1945 law underwent several amendments until in 1967 the present statutory scheme, Sec. 31-349, emerged. The 1967 law eliminated the necessity to calculate in each instance how much of the disability was attributable to the previous impairment and how much to the new injury. Instead it adopted a device used in seven other states, 2 Larson Workmen's Compensation Law Sec. 59.34, thereby eliminating the often cumbersome case by case evidentiary analysis. This new device simply arbitrarily limited liability to the first one hundred and four weeks of compensation for the employer during whose employment the second injury occurred. The remaining liability was transferred to the second injury fund.
Respondent's first argument is that it should not be liable for disabilities resulting from previous compensable injuries with this same employer in 1954 and 1962. It contends that Mund v. Farmers Cooperative Inc., 139 Conn. 338 (1952) is applicable since all three injuries were equal producing causes of the fifteen per cent back disability. That argument cannot prevail as Mund was decided under a different statute. In 1985 the statute did provide specific indemnity for the back and made the 1985 employer liable for the entire disability even if previous impairments were partially responsible for the overall disability.
Appellant's next argument cites Schmidt v. The O.K. Baking Co., 90 Conn. 217 (1916) and Preveslin v. The Derby and Ansonia Developing Co., 112 Conn. 129 (1930) for the argument that the law in effect at the time of the injury must govern; since there was no permanent partial disability for the back in 1954 and 1962, then ten per cent specific indemnity of the back due to those injuries is not compensable and the carrier liable for the 1985 injury only must pay the remaining five per cent back disability. But those cases hold that the statute in effect at the time of injury was part of the employment contract. The statute in effect on July 19, 1985 included Sec. 31-349(a) and made the employer liable for all resulting disability even when previous impairments were partial contributing causes.
To support the assertion that the employer's liability be restricted only to the incremental disability arising from the last injury, Aetna raises the constitutional question, i.e. it is a denial of due process and a taking of property without just cause to assess the entire liability against the last liable party. D'Abbraccio v. Southern Conn. Gas Co., 4 Conn. Workers' Comp. Rev. Op. 75, 441 CRD-3-86 (1987) is directly on point. It is difficult to comprehend how constitutionality can be at issue. Fair, supra, was decided seventy years ago in 1920. That is when this common law tort principle, i.e. that the last participant in the causation chain assumes the entire liability, was first applied to workers compensation. If anything Sec. 31-349(a) is much more favorable to employers in that it relieves them of a large part of the burden.
The next Reason of Appeal asserts that there was no evidential support for the commissioner's conclusion that the ultimate disability was materially and substantially greater than that which would have resulted for the last injury alone. Unless the appellant is confusing permanent partial specific disability with total or partial disability from work, this argument seems frivolous. The claimant had a ten per cent partial permanent disability of the back before the 1985 injury. As a result of the last injury he suffered an additional five per cent back disability. The previous ten per cent disability augmented his total back disability by that amount over and above the five per cent disability produced by the 1985 injury. That certainly is materially and substantially greater. The argument that claimant's disability is not substantially and materially greater since he suffered only a few weeks total disability from the 1985 accident is really irrelevant since the previous impairment increased by two hundred per cent the permanent partial disability which would have occurred from the 1985 injury alone.
Therefore we affirm the Finding and Award. Pursuant to Sec. 31-301c(b) we grant interest on any amount ordered paid and which has remained unpaid during the pendency of this appeal.
Commissioners James Metro and George Waldron concur.