Opinion
CASE NO. 843-CRD-1-89-3
OCTOBER 26, 1990
The claimant in the instant matter was represented by Richard Nicholl, Esq.
The respondents-Best Cleaners and Peerless Insurance Co., were represented by Robert Montstream, Esq., Montstream May.
The respondents-Broadbrook Cleaners and Windsor Dry Cleaners and Aetna Casualty Surety Co., were represented by James L. Pomeranz, Esq., and Anne Kelly, Esq., both of Pomeranz, Drayton Stabnick.
The respondents-Windsor Dry Cleaners and Best Cleaners and Home Insurance Co. were represented by Colette Mauborgne, Esq., Maher and Williams.
The respondents-Windsor Dry Cleaners and American Motorists Insurance Co. were represented by Tracey Cleary, Esq., Mike Brodinsky, Esq. and Deborah Haddaway, Esq.
The Second Injury and Compensation Assurance Fund was represented by Michael Belzer, Esq., Assistant Attorney General.
These Petitions for Review from the March 17, 1989 Finding and Award, June 23, 1989 Finding and Award, December 26, 1989 Supplemental Finding and Award, and January 12, 1990 Second Supplemental Finding and Award of the Commissioner at Large acting for the First District were heard March 30, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Robin Waller and George Waldron.
FINDING AND AWARD
1. At the direction of the chairman and pursuant to notice to all parties, hearings were conducted at the Hartford Office of the Workers' Compensation Commission on July 26, 1985, and February 3, 1988. During the interim, the parties engaged in settlement negotiations which were unsuccessful.
2. At all times relevant hereto, the parties were subject to the provisions of Chapter 568 of the Connecticut General Statutes, and the respondent employers insured their liability therefore with various carriers.
3. Claimant was employed in the dry cleaning business from 1963 through May, 1983.
4. On October 4, 1984, a Voluntary Agreement was approved for aggravation of pre-existing lung disease with an injury date of January 21, 1983; Thomas J. Godar, M.D. was named as the authorized physician.
5. Claimant's date of birth is December 30, 1923. He had smoked cigarettes from age 10 to age 48. He was first seen by Dr. Godar on December 30, 1982 for bronchial asthma.
6. Doctor Godar saw the claimant in 1983 and tests revealed that he was suffering from obstruction airway disease with an asthmatic component.
7. Perchlorethylene is a widely used dry cleaning fluid. In one process the Claimant had to remove items still wet with the fluid from a cleaning tank and put them in a dryer. In another process it was not necessary to handle items still wet with perchlorethylene.
8. Perchlorethylene is highly volatile and claimant was exposed to it as a liquid or vapor or both during all of his employment in the dry cleaning business.
9. The respiratory system works in conjunction with the cardiovascular system in supplying oxygen to the tissues. If either system fails, life cannot be sustained without medical intervention.
10. Claimant has a 50 percent impairment of his respiratory system and has become sensitized to many of the substances that are ubiquitous in our society.
11. When claimant left work in 1983, he collected Unemployment Compensation for 34 weeks and sought work during that time without success. His labor had become unmarketable.
12. Claimant has been and continues to be totally disabled.
13. It is not possible to tell which periods of exposure caused what degree of impairment.
14. Claimant did have pre-existing lung disease as a result of his smoking for over 35 years.
15. Claimant's pre-existing lung disease caused his airway disease to be materially and substantially worse than it otherwise would have been.
16. It does not appear that there was insurance coverage for Nu Life Cleaners in 1963-64, and the employment dates and coverage dates supplied by the parties conflict.
17. Seven hundred fifty dollars ($750.00) is a reasonable testimonial fee for Dr. Thomas Godar.
18. Although payments have not been withheld due to fault or neglect of the employers, claimant is entitled to interest at 6 percent due to the advantage the employers have had from the use of money.
19. At the direction of the Chairman and pursuant to notice to all parties, a hearing was conducted at the Hartford Office of the Workers' Compensation Commission on June 9, 1989.
20. A Finding and Award was issued in the instant matter on March 17, 1989.
21. Said Finding and Award is the subject of appeals by various of the respondents.
22. Claimant seeks an order for payment of benefits during the appeal pursuant to Section 31-301(b) of the Connecticut General Statutes.
23. During the pendency of the appeal the Second Injury Fund is obligated to pay benefits due. It is so ordered.
24. Pursuant to notice to all parties a hearing was conducted at the Waterbury office of the Workers' Compensation office on November 28, 1989.
25. The matter had been noticed as a Formal Hearing; because of illness no court reporter was available.
The parties agreed to discuss the matter in an attempt to move the case along since it had been pending for some time. The first request for an informal hearing was made in November, 1983.
26. Attorney Michael Belzer representing the Second Injury Fund requested an opportunity for oral argument on the record at a future date. He had filed a brief April 21, 1988, eleven weeks after the Formal Hearings which produced a Finding and Award dated March 17, 1989.
27. Attorney Belzer's request was denied.
28. There was disagreement between the claimant and the Second Injury Fund concerning the interpretation of the June 23, 1989 order to the Fund to pay benefits due during the pendency of the appeals from the March 17, 1989 ruling.
29. Timely notice under Sec. 31-349 of a request for transfer of liability was given to the Second Injury Fund by the respondent Peerless Insurance Company on or about January 10, 1984.
30. Claimant is entitled to benefits for total disability during the period January 25, 1984 through June 9, 1989.
31. It is the contention of the insurance carrier, Peerless Insurance, that the claimant had a permanent pre-existing physical impairment of his lungs cause by smoking which, together with his work-related injury, resulted in a permanent disability caused by both conditions which is materially and substantially greater than would have resulted from the work injury alone.
32. It is the contention of the insurance carrier that this claim qualifies for the transfer of liability to the Second Injury pursuant to Sec. 31-349 of the Connecticut General Statutes.
33. It is the contention of the Second Injury Fund that the claimant's smoking history resulted in a very minor, if at all, pre-existing permanent physical impairment to his lungs and that said pre-existing impairment did not result in a permanent disability, caused by that condition and the work injury, that was materially and substantially greater than that which would have resulted from the work injury alone.
34. It is the Second Injury Fund's contention that the insurance carrier's claim does not qualify for a Sec. 31-349 transfer because the evidence does not support its claim.
35. It is the Second Injury Fund's contention that because both lungs were involved, even if a Sec. 31-349 transfer was upheld, the date of transfer should be after 104 weeks for each lung, 208 weeks in all.
36. It is the Second Injury Fund's contention that there is no basis, as a matter of law, for the order that the Second Injury Fund pay the claimant $43,005.40 for the period of January 24, 1984 through June 9, 1989.
37. Because claimant had a pre-existing lung function impairment due to smoking and because his present lung disability from airway disease is caused by both conditions, the pre-existing impairment and the aggravation of pre-existing lung disease recognized as a second injury in the Voluntary Agreement noted in #4 above, and because the present disability is materially and substantially worse than it would have been from the second injury alone, liability for benefits is transferred to the Second Injury Fund after 104 weeks of benefits have been paid.
WHEREFORE IT IS ORDERED AND AWARDED THAT:
A. Payments be made as found due in accordance with the Findings herein.
B. The matter is hereby remanded to the First District for further proceeding to ascertain the exact amounts due and to determine the exact date of transfer of liability to the Second Injury Fund.
OPINION
Four separate decisions by the trial commissioner constitute the subject matter of this appeal. Claimant Williams was employed in the dry cleaning business by several employers from 1963 through May, 1983. A Voluntary Agreement between the claimant and the employer Best Cleaners together with its insurer Peerless Insurance was approved by the First District October 4, 1984. That agreement established that claimant had suffered a compensable injury, "Aggravation of pre-existing lung disease" causing incapacity beginning January 21, 1983.
In a Finding and Award of March 17, 1989 the commissioner found claimant had been exposed to perchlorethylene, a widely used dry cleaning fluid. Claimant had had pre-existing lung disease as a result of smoking for more than thirty-five years. That "pre-existing lung disease caused his airway disease to be materially and substantially worse than it would otherwise have been." The commissioner found further that claimant had "a 50 percent impairment of his respiratory system" and that claimant "has been and continues to be totally disabled."
The employers involved during the years 1963 through 1983 were Best Cleaners, Windsor Dry Cleaners and Nu-Life Cleaners. During 1963-1964 when claimant worked for Nu-Life Cleaners the employer had no insurance coverage. The other employers had coverage with various carriers who appeared in the proceedings below. The Second Injury and Compensation Assurance Fund also appeared. Under Sec. 31-355, C.G.S. if an employer fails or is unable to pay an award against it, then the Second Injury Fund pays the benefits due from that employer. Concluding his March 17 ruling, the commissioner ordered the respondent employers and insurers to pay to the claimant all the benefits due for his disability beginning January, 1963. He also ordered those parties to submit a schedule of insurance coverage for the period "together with the percentage liability for each carrier for the 257 months through May, 1983."
The insured employers and the Second Injury Fund appealed the March 17 award. However except for the Second Injury Fund, the employers and carriers have not pursued their appeal from the March 17 ruling in their briefs and oral argument. We therefore consider those appeals abandoned.
All other issues presented on appeal by other respondents were not discussed in their briefs on appeal. We therefore, deem all such other issues abandoned. Muha v. United Oil Co., Inc. 180 Conn. 720 (1980). See also, McConnell v. Hewitt Assoc., 8 Conn. Workers' Comp. Rev. Op. 32, 764 CRD-7-88-8 (1990); Richardson v. H.B. Sanson, Inc., 6 Conn. Workers' Comp. Rev. Op. 107, 590 CRD-1-87 (1989).
On June 23, 1989 the commissioner issued a further ruling. This ruling, pursuant to Sec. 31-301(b), C.G.S. ordered the Second Injury Fund to make all payments due during the pendency of the appeal. There was no appeal from the June 23 decision.
Six months later another decision entitled "Supplemental Finding and Award" was issued December 26, 1989. In that ruling the commissioner reiterated that claimant was entitled to total disability benefit from January 25, 1984 through June 9, 1989. In 1983 as found in the March 17, decision claimant had received some thirty-four weeks of unemployment benefits in a period ending January 25, 1984. This ruling also restated the finding that the disabling airway disease suffered by the claimant was materially and substantially worse than it would have been without the pre-existing lung disease. He found that that benefits due for the weeks in question are $43,005.40, and he transferred liability for payment to the Second Injury Fund, pursuant to Sec. 31-349, C.G.S. after 104 weeks of benefits were paid.
The Second Injury fund appealed the December 26 award and also moved for articulation. In response to that request the commissioner issued a document entitled "Second Supplemental Finding and Award" January 12, 1990. This January 12 document confirmed all rulings previously made and stated that the amount $43,005.40 in the December 26 Finding was based "on figures developed by and agreed upon by the parties." The title given to the January 12, 1990 ruling was misleading as it is simply a clarification of the December 26 Finding. Consequently, there was no need for the Second Injury Fund to file another appeal.
It has been necessary to review this procedural history and the rulings developed in some detail so that we may identify what issues are actually in dispute before us. Those concern only the Second Injury Fund's appeals from the March 17, 1989 and the December 26, 1989 awards. The Fund's appeals themselves seem confusing possibly because of the complexities inherent in the number of parties involved and the four resulting decisions. Nine different Reasons of Appeal are cited by the Fund, but many of them are unnecessarily prolix and repetitious. After eliminating excess verbiage and condensing these reasons we understand the Fund to be arguing (1) there was no evidence to support a finding that there was permanent physical impairment resulting from claimant's many years of smoking, (2) there were no subordinate facts found to support the conclusion that claimant's air way disease was made materially and substantially worse due to the pre-existing lung disease. (3) there were no subordinate facts found to substantiate the conclusion that $43,005.40 was due, and (4) that since there were two body parts involved, e.g. the right and the left lung, there had to be 104 weeks of benefit paid for each before liability could be transferred to the Fund.
At the outset it should be noted that the Fund incorporated most of these claims of error in its Motion to Correct of January 4, 1990. We have granted that motion in part and have issued our own consolidated findings incorporating the findings made by the commissioner below and those paragraphs of the January 4 motions we granted.
In issues (1) and (2) listed above the Fund maintains that there was not sufficient evidence to prove claimant had a pre-existing permanent physical impairment from smoking and that that impairment caused the resultant disability to be materially and substantially worse. This argument is based on Sec. 31-349. Dr. Thomas J. Godar, the Director of the Pulmonary Disease Section of St. Francis Hospital and Medical Center in Hartford, claimant's treating physician, testified as the medical expert witness. His testimony (TR, 7/26/85 and TR, 2/3/88) has ample reference to the pre-existing pulmonary damage caused by claimant's smoking. (TR 7/26/85, 42-43, 47, 63-65; TR 2/3/88, 59-60) There the doctor testified that approximately one tenth to one fifth of the fifty percent loss of function in both lungs was attributable to the pre-existing impairment from smoking.
Section 31-349 C.G.S. provides in pertinent part: Section 31-349. Compensation for second disability. Payment of insurance coverage. (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, on 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 received 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.
[**]
That was a sufficient evidentiary basis for the commissioner's finding, #4, March 17, 1989, that claimant had pre-existing lung disease as a result of more than thirty-five years of smoking. We do not understand the Fund's argument to be that the words "pre-existing lung" disease are not the semantic equivalent of the statutory language "permanent physical impairment." If that is in fact the argument, we reject it. Therefore we find no merit in issues (1) and (2).
As to issue (3), the appeal has some merit. If in fact the parties had agreed to this calculation, the December 26, 1989 order that $43,005.40 was due claimant should have been accompanied by the underlying arithmetic facts on which the computation was based. It is true that the December 26 ruling confirmed and incorporated by reference the March 17 one. The March 17 Finding #4 referred to the Voluntary Agreement of the parties approved October 4, 1984. That Voluntary Agreement established a compensation rate of $326.00. Between 1983 and 1989 these were annual cost of living increases to be added to the compensation rate for total disability. Even without weekly cost of living increments, five and one half years of benefits at $326.00 per week would amount to more than $90,000.00, so the $43,005.40 figure needs to be explained.
It is also necessary to establish the exact date for the expiration of the 104 weeks threshold for transfer of liability to the Fund. As we understand the December 26 decision, the Fund was not ordered to pay the entire $43,005.40 but only that part of it falling due after 104 weeks of payment. If the parties have in fact agreed to all these computations, the documents attesting to those agreements need to be made matters of record and needed to be included in the findings on which the order is based. Although we affirm the commissioner's rulings on liability, we need to remand for further proceedings necessary to substantiate and make precise the orders against the Fund.
To support its argument on issue (4) the Fund cites Lovett v. Atlas Truck Leasing, 171 Conn. 577 (1976) and Vieta v. Consolidated Cigar, 7 Conn. Workers Comp. Rev. Op. 48, 677 CRD-6-87 (1989). Its contention is that each lung is a separate body part and therefore the 104 weeks threshold needs to expire for each lung before transfer of liability. Under that analysis the transfer would occur after 208 weeks. That certainly is a correct interpretation of Lovett when the skeletal body parts enumerated in Sec. 31-308(b) are at issue. It is also a correct interpretation of Vieta where a body part under Sec. 31-308(d), the cervical spine, was involved. But under Sec. 31-308(d) there are no statutory parameters defining the boundaries of each part or organ within the body. It is true that for certain determinations there is an informal rule of thumb within the commission assigning numbers of weeks to organs and other body parts not included in Sec. 31-308(b). This informal rule of thumb was mentioned in Balkus v. Terry Steam Turbine Co., 167 Conn. 170 (1974). A loss of lung function was also involved in that case. Justice Bogdanski noted that the informal value given to one lung was 175 weeks. The medical testimony before the commissioner had been either that there had been 25% loss of function of one lung or that there had been 25% loss of total body function depending on how the commissioner interpreted the evidence. The commissioner had actually awarded 50 weeks benefits for the loss of lung function, a figure which was neither 25% of 175 weeks or 25% of 780 weeks for the whole body. The Supreme Court upheld the award under Sec. 31-308(d).
The relevant language of Sec. 31-308(d) states: the commissioner may award such compensation as he deems just for the loss or loss of use of the function of any organ or part of the body not otherwise provided for herein, taking into account the age and sex of the claimant, the disabling effect of the loss of or loss of function of the organ involved and the necessity of the organ or complete functioning of the organ with respect to the entire body.
Balkus made clear that the commissioner must look at all the evidence and not just to an informal understanding of the commissioners. In the instant case, Dr. Godar's testimony (TR 2/3/88, 47) was that claimant's entire lung function was involved. The doctor stated, "a 50 percent loss is for both lungs because there is uniform involvement." The testimony then went on to conclude that the lung function as a whole was incapacitated and not just a piece of each lung. This corresponds with the statutory language "the loss or loss of function of the organ involved." Given the evidence and the fact that Sec. 31-308(d) does not enumerate body parts as Sec. 31-308(b) does, it was proper for the commissioner to transfer liability to the Fund after 104 weeks of payment. However as indicated above, further proceedings must be had to indicate the exact date of the transfer.
The decision of the commissioner is affirmed, the Finding is corrected as appears in this Division's Finding, and the matter is remanded for further proceedings consistent with this opinion.
Commissioners Robin Waller and George Waldron concur.