Gill v. Brescome Barton, Inc.

• Decision Date: 30 April 2013
• Docket Number: No. 34749.,34749.
• Citation: 142 Conn.App. 279,68 A.3d 88
• Court: Connecticut Court of Appeals
• Parties: Ronald F. GILL, Jr. v. BRESCOME BARTON, INC., et al.

142 Conn.App. 279

68 A.3d 88

Ronald F. GILL, Jr.

v.BRESCOME BARTON, INC., et al.

No. 34749.

Appellate Court of Connecticut.

Argued Jan. 22, 2013.

Decided April 30, 2013.

Marian H. Yun, Glastonbury, for the appellant (defendant Liberty Mutual Insurance Group).

Michael J. Finn, Glastonbury, with whom was Philip Markuszka, for the appellee (defendant Chubb & Son).

LAVINE, ALVORD and HARPER, Js.

LAVINE, J.

In this workers' compensation action, the defendant insurance carriers (insurers) for the named defendant, Brescome Barton, Inc. (employer), contest their rights of apportionment, if any, for indemnity benefits paid to the plaintiff, Ronald F. Gill, Jr.¹ The defendant Liberty Mutual Insurance Group (Liberty Mutual) appeals from the decision of the workers' compensation review board (board) affirming the finding and award of the compensation commissioner that it reimburse the defendant Chubb & Son (Chubb) 50 percent of the temporary total disability payments (indemnity) paid to the plaintiff following his bilateral knee replacement surgery. On appeal, Liberty Mutual claims that the board (1) applied an incorrect standard of review, (2) drew illegal or unreasonable inferences from the commissioner's findings of fact regarding an agreement between the insurers, (3) substituted its inferences for those drawn by the commissioner, (4) exceeded its authority by retrying the facts, (5) failed to adhere to the doctrine of stare decisis and (6) improperly affirmed the commissioner's finding and award that it pay 50 percent of the plaintiff's indemnity (a) on the basis of the facts and (b) as a matter of law. We affirm the decision of the board.

The commissioner found the following facts concerning the plaintiff's injuries, which the insurers do not dispute. The plaintiff sustained an injury to his left knee that arose out of and in the course of his employment on July 2, 1997 (first injury). The plaintiff, employer and Liberty Mutual entered into a voluntary agreement as to the plaintiff's permanent partial disability rating. Attached to the voluntary agreement is an office note dated April 10, 2008, from Norman R. Kaplan, the plaintiff's treating orthopedic surgeon. Kaplan stated in the note that the plaintiff's condition had worsened since 2003 and that he “will definitely need a total knee replacement” within the next three to five years. On April 3, 2002, the plaintiff sustained an injury to his right knee that arose out of and in the course of his employment (second injury). The employer, who was then insured by Chubb, accepted the second injury.

The commissioner found that the plaintiff was scheduled for bilateral knee replacement surgery (surgeries) pursuant to the recommendation of his physician and that the insurers agreed that the surgeries were reasonable and medically necessary. Pursuant to an agreement dated March 10, 2010 (2010 agreement), the insurers agreed that Chubb would authorize and administer the surgeries and that Liberty Mutual would reimburse Chubb 50 percent of the surgical costs, incidental expenses and prescriptions related to the surgeries.

The commissioner also found that the plaintiff had accepted, without prejudice, Chubb's offer to pay him indemnity at the relapse rate of $692.75 for his disability period following the surgeries pursuant to General Statutes § 31–307b, commonly known as the relapse statute. Liberty Mutual, however, contended that it is not responsible for 50 percent of the indemnity and offered to pay 37 percent of Chubb's base rate, or $181.36. Chubb rejected the offer.²

A formal hearing was held before the commissioner on January 10, 2011, and the record was closed on February 14, 2011. The commissioner framed the hearing issue as what amount are the insurers, respectively, obligated to pay the plaintiff for periods of total and temporary partial disability following the bilateral knee surgeries, where each surgery concurrently disables the plaintiff.³ The commissioner found the situation unique in that one knee injury does not affect the other knee injury. “The two injuries are separate and distinct injuries that do not, in concert, totally disable the plaintiff. Instead, they are concurrent to each other.” Moreover, the plaintiff's decision to have both knees replaced at the same time benefits him in that he will have only one period of recovery and also benefits both insurers in that they are able to divide many of the surgical and postsurgical costs that would have been duplicative had the plaintiff opted to have his knees replaced at separate times.⁴

The commissioner's findings and award is dated May 19, 2011. In it he found that the plaintiff had reached maximum medical improvement for both injuries, but his conditions had worsened, necessitating that both of his knees be replaced and that § 31–307b applied to each injury. He further found that the injuries were separate and distinct, and that the plaintiff could have elected to undergo separate surgeries resulting in duplicative medical costs. Each knee replacement surgery concurrently disabled the plaintiff, who was entitled to indemnity at the relapse rate of $692.75. Chubb was to administer the surgeries and payments. Liberty Mutual was to reimburse Chubb 50 percent of the indemnity it paid the plaintiff in addition to 50 percent of the medical costs agreed upon by the insurers.⁵

Liberty Mutual appealed from the corrected finding and award to the board, primarily claiming that the commissioner erred by requiring Liberty Mutual to reimburse Chubb 50 percent of indemnity paid the plaintiff postsurgery. ⁶ The board issued a decision dated June 1, 2012, in which it identified the issue before it as “whether a trial commissioner failed to follow appropriate precedent in determining that two insurance carriers should apportion the temporary total disability resulting from the [plaintiff's] bilateral knee replacement surgery.” The board found that Liberty Mutual relied on Hatt v. Burlington Coat Factory, 263 Conn. 279, 819 A.2d 260 (2003), and Malz v. State/University of Connecticut Health Center, No. 4701 CRB–6–03–7 August 20, 2004), to support its position that the commissioner had no authority to apportion liability in the manner implemented in this case; and that Chubb relied on Mund v. Farmers' Cooperative, Inc., 139 Conn. 338, 94 A.2d 19 (1952), as authority supporting the commissioner's finding and award. The board found, however, that none of the cases cited by the insurers pertained to the facts of this case, which it determined was sui generis. Nonetheless, the board concluded that the commissioner properly had exercised his powers pursuant to General Statutes § 31–278⁷ to resolve the dispute between the insurers equitably, and that his finding and award were consistent with the 2010 agreement.

In affirming the commissioner's finding and award, the board reasoned that if the plaintiff had not sustained the second injury, Liberty Mutual would have been obligated to pay the entire cost and indemnity attributable to knee replacement surgery resulting from the first injury. The board noted that double recoveries are disfavored under the Workers' Compensation Act (act); see Nichols v. Lighthouse Restaurant, Inc., 246 Conn. 156, 164, 716 A.2d 71 (1998); Pokorny v. Getta's Garage, 219 Conn. 439, 454, 594 A.2d 446 (1991); and that any award that paid the plaintiff a full disability benefit simultaneously for each knee injury would be void as against public policy. The board agreed with the commissioner that it would be irrational to force the plaintiff to undergo two knee replacement surgeries at different times and noted that the act cannot be construed in a manner that creates an “absurd or unworkable result.” See First Union National Bank v. Hi Ho Mall Shopping Ventures, Inc., 273 Conn. 287, 291, 869 A.2d 1193 (2005).

The board, however, foresaw a potential for inequity in the award during the period of the plaintiff's recovery. The board found that the commissioner's award operates only as long as each of the plaintiff's knees renders him totally disabled, but the board recognized that one of the plaintiff's knees may recover its function before the other. At that time, the insurer on the risk for the “healthy knee” will be forced to pay one half of the cost of § 31–307b benefits and the insurer on the risk for the “injured knee” will reap a windfall. The board stated that postsurgical apportionment of disability benefits must be based on contemporaneous medical evidence: “Once it is possible to ascertain which body part is responsible for disabling the [plaintiff], the burden of continuing temporary total disability benefits should rest on the [insurer] responsible for [that] body part.” For this reason, the board found that any challenge to the commissioner's award regarding indemnity apportionment was premature. The board stated that when one of the plaintiff's knees is responsible for disabling the plaintiff, the insurer responsible for that injury may file a motion pursuant to General Statutes § 31–315. The board affirmed the commissioner'sfinding and award. Thereafter, Liberty Mutual appealed to this court.

Our resolution of the claims on appeal begins with the applicable standard of review. “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.... 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.... Where [a workers'...