Davis v. City of Norwich

• Decision Date: 28 February 1995
• Docket Number: No. 15066,15066
• Citation: 232 Conn. 311,654 A.2d 1221
• Court: Connecticut Supreme Court
• Parties: Lucy DAVIS v. CITY OF NORWICH et al.

Page 1221

654 A.2d 1221

232 Conn. 311

Lucy DAVIS v. CITY OF NORWICH et al.

No. 15066.

Supreme Court of Connecticut.

Argued Jan. 3, 1995.

Decided Feb. 28, 1995.

Richard S. Bartlett, Vernon, for appellants (named defendant et al.).

Carolyn A. Signorelli, Asst. Atty. Gen., with whom, on the brief, were Richard Blumenthal, Atty. Gen., and William J. McCullough, Asst. Atty. Gen., for appellee (defendant Second Injury Fund).

Before PETERS, C.J., and BERDON, NORCOTT, KATZ and PALMER, JJ.

KATZ, Associate Justice.

The dispositive issue in this appeal is whether the failure by the named defendant, the city of Norwich, timely to file a notice of its intent to transfer to the defendant second injury fund (fund) its liability for its employee's claim for disability compensation prevents it from later transferring a claim by the employee's widow for death benefits. We conclude that it does.

The following facts are undisputed. On March 24, 1984, Leo Davis (decedent) suffered a myocardial infarction that arose during and in the course of his employment as a firefighter with Norwich. As a result of the infarction, the decedent was unable to continue working and on May 2, 1985, he retired from his employment with Norwich. Norwich paid workers' compensation benefits to the decedent at various times between March 24, 1984, and May 2, 1985, and on a continuous basis from May 2, 1985, until February 25, 1988. At no time did Norwich provide the fund with any notice of its intent to transfer the benefits pursuant to General Statutes (Rev. to 1983) § 31-349. ¹ Accordingly the claim was not transferred to the fund, and Norwich remained liable for the payment of the decedent's disability benefits.

On February 25, 1988, the decedent died as a result of an acute myocardial infarction, arteriosclerotic heart disease and hypertension. The decedent's treating physician stated that it was highly probable that the decedent's death was attributable to the 1984 infarction, which in turn had been caused by a preexisting impairment comprised of hypertension presumed hyperlipidemia and coronary artery disease. Thereafter, on May 16, 1989, Lucy Davis, the decedent's widow (widow) was awarded dependent's benefits pursuant to General Statutes (Rev. to 1987) § 31-306. ² On May 22, 1989, Norwich filed a notice with the fund indicating its intention to transfer its liability for the widow's benefits under § 31-349. ³ The parties agree that, apart from the issue of timeliness, the claim complied with the notice requirements and met the medical qualifications for transfer under § 31-349. They disagree, however, about whether Norwich's undisputed failure to file a notice of its intent to transfer to the fund the decedent's disability claim ninety days before the expiration of the 104 weeks of disability precluded it from transferring the widow's death benefits claim.

Norwich argues that § 31-349 provides for two distinct and separate claims, one for disability and one for death benefits. According to Norwich, an employer may transfer either or both claims to the fund and must incur a separate 104 week period of liability for each claim. Therefore, Norwich contends that notice of its intent to transfer the death benefits claim to the fund was timely because it furnished notice of that claim to the fund ninety days before the expiration of the first 104 weeks of liability for that distinct claim as required by the statute.

The fund contends that § 31-349 contemplates a single 104 week period of employer liability for any injury regardless of whether the initial claim is for disability, death or a combination of both. Therefore, the fund argues that because the second injury occurred on March 24, 1984, and benefits were payable continuously from May 2, 1985, Norwich should have given notice ninety days before the expiration of the 104 week period after the decedent's 1984 heart attack. Accordingly, it contends that Norwich's notice of May 22, 1989, of its intent to transfer the death benefits claim was untimely. ⁴

After hearings held on March 6, 1992, and July 17, 1992, the workers' compensation commission ordered the fund to assume liability for the death benefits claim. The fund appealed the commission's decision to the compensation review board, which reversed the commission's determination and concluded that because there is only one 104 week period of employer liability for the purposes of § 31-349, the employer has a single opportunity to transfer its liability for benefits to the fund. Because Norwich did not file a notice of its intent to transfer the decedent's disability benefits claim to the fund after the decedent's 1984 infarction, the notice to transfer the widow's 1989 death benefits claim was untimely. Norwich appealed from the decision of the compensation review board to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We agree with the compensation review board's conclusion and, accordingly, affirm the judgment.

We first look to the controlling statute, § 31-349. Statutory construction is a question of law and therefore our review is plenary. North Haven v. Planning & Zoning Commission, 220 Conn. 556, 561, 600 A.2d 1004 (1991). It is well established that "[a]lthough not dispositive, we accord great weight to the construction given to the workers' compensation statutes by the commissioner and review board." Civardi v. Norwich, 231 Conn. 287, 298-99, 649 A.2d 523 (1994). A state agency is not entitled, however, to special deference when its "determination of a question of law has not previously been subject to judicial scrutiny." Dept. of Administrative Services v. Employees' Review Board, 226 Conn. 670, 679, 628 A.2d 957 (1993). Therefore, although we agree with the compensation review board's conclusion, we do not accord special weight to its construction of § 31-349.

Section 31-349 provides for shared liability for disability and death benefits compensation. In the case of "an employee who has previously incurred ... [a] permanent physical impairment, [and who] 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 ... [the employer is responsible for paying the injured employee] compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability." General Statutes (Rev. to 1983) § 31-349. Thereafter, if proper notice is filed with the fund ninety days before the expiration of the 104 week period, liability for compensation may be transferred to the custodian of the fund. Separately, § 31-349 provides that "[i]f the subsequent injury ... result[s] in the death of the employee, and it shall be determined that either the injury or death would not have occurred except for such preexisting permanent physical impairment, the employer or his insurance carrier shall ... pay death benefits as may be due for the first one hundred four weeks." Again, if proper notice is filed with the fund ninety days before the expiration of the 104 week period, liability for death benefits may be transferred to the custodian of the fund.

We conclude that there are at least two possible interpretations of the language of § 31-349. The statute could be interpreted to require the employer to incur a single 104 week period of liability per injury for a transferable claim beginning with the onset of liability for either disability compensation or death benefits. An alternative interpretation would be that the statute includes two separate and distinct possible claims that may be transferred to the fund: one claim for disability compensation and one claim for death benefits. Such an interpretation would recognize that the two claims are discussed separately in the statute and that each claim depends on different criteria to show the appropriateness of the transfer to the fund. ⁵

When we interpret a statute, we search for an effective construction that reasonably accords with the legislature's intent. Bartholomew v. Schweizer, 217 Conn. 671, 675-76, 587 A.2d 1014 (1991). Because the statutory language is susceptible to more than one plausible interpretation, we look to the statute's legislative history and the purpose the statute is to serve to ascertain and give effect to the intent of the legislature. Mercado v. Commissioner of Income Maintenance, 222 Conn. 69, 74, 607 A.2d 1142 (1992).

We begin our analysis with a discussion of the fund's history and the purpose underlying its enactment. The Workers' Compensation Act (act) initially was interpreted to require an employer to assume total liability for any work related injury suffered by an employee even if the severity of such an injury had been aggravated by a preexisting disability. See, e.g., Fair v. Hartford Rubber Works Co., 95 Conn. 350, 111 A. 193 (1920), superseded by statute as stated in Jacques v. H.O. Penn Machinery Co., 166 Conn. 352, 357, 349 A.2d 847 (1974). Employers therefore hesitated to hire handicapped persons because if a previously injured or disabled employee were then injured on the job, the employer would be required to compensate the employee for the entire resulting disability even though the severity of the second injury might have been attributable substantially to the preexisting condition.

In response, the legislature amended the act to permit employers "to condition the employment of handicapped workers on their written waiver of any future compensation attributable to their physical defects." Jacques v. H.O. Penn Machinery Co., supra, 166 Conn. at 356-57, 349 A.2d 847. This protected employers, but left handicapped employees vulnerable to total loss of income if they ever became completely disabled due to a...