Opinion
CASE NO. 836-CRD-8-89-3
JUNE 6, 1990
The claimant was represented by Anthony Polvino, Esq., Peters Polvino, P.C. As the appeal did not affect claimant's entitlement, the claimant did not participate.
The respondent-insurer, CIGNA W/C CENTER was represented by Mark Leighton, Esq., and David Schoolcraft, Esq., Trowbridge, Ide, Courtney Mansfield.
The respondent-insurer, American International Adjusting Company was represented by Thomas Mulligan, Esq., McNamara Kenney.
This Petition for Review from the March 21, 1989 Finding and Award and the July 21, 1989 Amended Finding and Award of the Commissioner at Large acting for the Eighth District was heard February 2, 1990, before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Paul Berte and Frank Verrilli.
OPINION
Apportionment of liability between two insurance carriers constitutes the basis of this appeal. Claimant suffered compensable back injuries June 25, 1976, February 24, 1978 and February, 1985, all while in Portland Chemical's employ. In 1976 and 1978 Portland was insured by INA/CIGNA; in 1985, by National Union Fire Insurance Co./American International Adjusting Co.
In rulings of March 21 and July 21, 1989 the trial commissioner found claimant had sustained a ten per cent permanent partial disability of the back. He credited the testimony of the Hartford neurosurgeon, Dr. Melville Roberts. Dr. Roberts testified that although the effect of the three injuries was cumulative, nonetheless the final ten per cent permanent partial disability was due to a frank rupture of the disc caused by the 1985 injury. He then found that the 1985 carrier, American International was responsible for paying the compensation due for the ten per cent permanent partial disability both because of "all of the evidence available to the respondent insurer and more importantly due to the carrier's own statement claiming a right of allocation by a commissioner under Sec. 31-299b."
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 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.
In the next paragraph of the award, #11d, he found the 1970's carrier, CIGNA "responsible for payment of 2/3's of all the claimant's current claims for temporary total, temporary partial and medical expenses that were incurred by the claimant due to the most recent 1985 injury." In the remaining paragraphs of the award he found that CIGNA had unreasonably withheld part of the payment due on the ten per cent permanent partial disability and therefore ordered interest against that carrier for the unproffered part of that award. He ordered payment of an expert witness fee to be shared by both carriers. Additionally because of the unreasonable contest he awarded an attorney's fee of $1,500.00 without specifying which carrier was to pay or whether that obligation was to be shared.
On their face these findings seem inconsistent. If all three injuries were equal contributing causes to the 1985 result, why would not Mund v. Farmers' Cooperative, Inc., 139 Conn. 338 (1952) be the applicable precedent? In that case responsibility for all compensation was apportioned equally. If on the other hand the commissioner considered that the 1970 injuries were relatively minor and the last event in the chain, the 1985 injury was really the precipitating cause of all the disability, then would not Sec. 31-349 dictate that the last carrier bear all the responsibility? See Levanti v. Dow Chemical Co. et al., 815 CRD-2-89-1 (5/15/90).
Instead, the commissioner seems to have ruled that the last carrier was responsible for the post 1985 permanent partial disability and that all carriers were to share the temporary disability and the medical expense. Admittedly in ordering the last carrier to pay the permanent partial disability he referred to Sec. 31-299b. That statute obligates the final carrier in the chain to pay claimant but then permits apportionment among all carriers if the circumstances warrant. But no apportionment of that permanent partial payment was included in the findings. It may be therefore that reference to Sec. 31-299b simply buttressed the finding that twelve per cent interest was due since two thirds of the payment had been unreasonably withheld.
Given these inconsistencies we must remand the entire matter to the trial commissioner for further findings to clarify the rulings made and for further evidentiary proceedings if necessary.
Commissioners A. Paul Berte and Frank Verrilli concur.