Fimiani v. Star Gallo Distributors, Inc.

• Decision Date: 11 May 1999
• Docket Number: (SC 15960)
• Parties: JOSEPH FIMIANI v. STAR GALLO DISTRIBUTORS, INC., ET AL.
• Court: Connecticut Supreme Court

248 Conn. 635

729 A.2d 212

JOSEPH FIMIANI v. STAR GALLO DISTRIBUTORS, INC., ET AL.

(SC 15960)

Supreme Court of Connecticut.

Argued February 17, 1999.

Officially released May 11, 1999.

Callahan, C. J., and Borden, Berdon, Katz and Palmer, Js. David D. Chapman, for the appellants (named defendant et al.).

Richard R. Hine, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough and Anthony Jannotta, assistant attorneys general, for the appellee (defendant second injury fund).

Opinion

CALLAHAN, C. J.

In 1987, the plaintiff, Joseph Fimiani (claimant), suffered two related injuries in the course of his employment with the named defendant, Star Gallo Distributors, Inc. (Star Gallo). The dispositive issue in this certified appeal is whether General Statutes (Rev. to 1987) § 31-349¹ requires the defendant second injury fund (fund) to accept liability only for that portion of the workers' compensation disability benefits due the claimant that is attributable exclusively to his second injury. We conclude that § 31-349 requires the fund to accept liability for all disability benefits due the claimant, not just that portion of compensation benefits that is attributable to his second injury.

The following facts and procedural history are undisputed. On January 6, 1987, the claimant injured his lumbar spine (first injury) in the course of his employment. On that date, the defendant Nationwide Mutual Insurance Company (Nationwide)² was Star Gallo's workers' compensation insurance carrier. The claimant filed a timely application for workers' compensation benefits.³ Nationwide accepted liability for the claim and, on February 24, 1987, the workers' compensation commissioner for the third district (commissioner) approved a voluntary agreement awarding the claimant temporary total disability benefits.⁴ Pursuant to that agreement, Nationwide paid the claimant weekly workers' compensation benefits in the amount of $428 until his return to regular work activity at Star Gallo on February 5, 1987.

On November 30, 1987, the claimant sustained a second lumbar spine injury (second injury) in the course of his employment. On that date, Liberty Mutual Insurance Company (Liberty) was Star Gallo's workers' compensation insurance carrier. The claimant filed a timely application for workers' compensation benefits. Liberty contested its liability for the claimant's second injury, maintaining that the second injury was merely a recurrence of his first injury, not a separate injury, and that, consequently, pursuant to General Statutes (Rev. to 1987) § 31-307b,⁵ Nationwide was responsible for providing coverage for the claimant's second injury. Nationwide argued, however, that the second injury was a separate injury, not a recurrence of the first injury, and that, pursuant to § 31-349, Liberty was responsible for providing coverage for the second injury.⁶

This dispute was the subject of informal hearings before the commissioner. At the informal hearings, the two insurers presented conflicting medical opinions regarding the cause of the claimant's second injury. Liberty relied on medical opinion that indicated that the claimant's second injury was a recurrence; Nationwide relied on medical opinion that indicated that the second injury was a new injury. After the hearings, but before the commissioner had ruled, Liberty and Nationwide entered into an agreement whereby Liberty agreed to accept responsibility for the claimant's second injury and Nationwide agreed to reimburse Liberty for 75 percent of any benefits Liberty paid to the claimant in connection with his second injury. Thereafter, Liberty accepted liability for the claimant's second injury, and a voluntary agreement awarding the claimant permanent partial disability benefits for the second injury was approved by the commissioner on November 13, 1989.⁷

Pursuant to the approved voluntary agreements, Liberty paid benefits to the claimant for a period of 104 weeks.⁸ Liberty then sought to transfer liability for the entire claim to the fund pursuant to § 31-349. The fund, however, agreed to accept liability only for 25 percent of the benefits payable to the claimant. The fund maintained that Nationwide was obligated to pay the remaining 75 percent of the benefits due the claimant. On July 12, 1994, at Nationwide's request, the commissioner held a formal hearing on the issue of whether Nationwide or the fund was responsible for payment of the remaining 75 percent of those benefits. The commissioner found that the claimant's second injury was a separate injury, not a recurrence of his first injury, and that the claimant's first injury was a "substantial factor in [his] disability." Concluding that § 31-349 (a) permitted an allocation between the fund and Nationwide of the benefits due the claimant, the commissioner ordered the fund to accept liability for only 25 percent of the claim and Nationwide to accept liability for the remaining 75 percent of the benefits due the claimant.⁹

Nationwide appealed from the commissioner's decision to the compensation review board (board) pursuant to General Statutes § 31-301.¹⁰ The board concluded that § 31-349 required the fund to accept liability for payment of all benefits due the claimant, without allocation, and reversed the commissioner's decision. The fund appealed from the decision of the board to the Appellate Court pursuant to General Statutes § 31-301b.¹¹ Concluding that, "in cases where an employee has suffered two separate compensable injuries that have contributed to cause a disability, and liability for that disability can be apportioned between the two injuries by the trial commissioner, the apportionment may also be extended to the liability imposed on the fund by § 31-349," the Appellate Court reversed the board's decision. Fimiani v. Star Gallo Distributors, Inc., 48 Conn. App. 474, 480-81, 710 A.2d 1374 (1998).

Thereafter, Nationwide petitioned this court for certification to appeal from the judgment of the Appellate Court. We granted certification limited to the following question: "Under the circumstances of this case, did the Appellate Court properly conclude that, pursuant to General Statutes [Rev. to 1987] § 31-349, the second injury fund was liable only for that percentage of the claimant's total disability attributable to his second injury?" Fimiani v. Star Gallo Distributors, Inc., 245 Conn. 912, 718 A.2d 17 (1998). We answer the certified question in the negative and, accordingly, reverse the judgment of the Appellate Court.

As a threshold matter, we set forth the standard of review applicable to workers' compensation appeals. "The principles that govern our standard of review in workers' compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.... Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). Neither the review board nor this court has the power to retry facts. See Six v. Thomas O'Connor & Co., 235 Conn. 790, 798-99, 669 A.2d 1214 (1996)." (Internal quotation marks omitted.) Doe v. Stamford, 241 Conn. 692, 696-97, 699 A.2d 52 (1997). "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.... 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.... Duni v. United Technologies Corp., 239 Conn. 19, 24-25, 682 A.2d 99 (1996); Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995). Where ... [a workers' compensation] appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision. Doe v. Stamford, supra, 697; see Davis v. Norwich, supra, 317." (Internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 798, 712 A.2d 396, cert. denied, 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998). The issue of whether § 31-349 permits the fund to accept liability only for the portion of benefits due a claimant that is attributable solely to the claimant's second injury has not been subject previously to judicial review and is a question of law involving the interpretation of the relevant statutory provisions. Consequently, we afford the conclusion of the board no special deference.

We begin our analysis by noting that interpretation of § 31-349 is a matter of statutory construction. "Statutory construction is a question of law and therefore our review is plenary.... [O]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) General Motors Corp. v. Dohmann, 247 Conn. 274, 286, 722 A.2d 1205 (1998); Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 195, 708 A.2d 1371 (1998).

"As with any issue of statutory interpretation, our initial guide is the language of the operative statutory provisions." In re Baby Z., 247 Conn. 474, 498, 724 A.2d 1035 (1999); Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 102, 680 A.2d 1321 (1996). General Statutes (Rev. to 1987) § 31-349 (a), which sets forth the statutory scheme relating to compensation for a second injury, provides in relevant part that the "employer by whom the employee is employed at the time of...