Gill v. Brescome Barton, Inc.

• Citation: 317 Conn. 33,114 A.3d 1210
• Decision Date: 26 May 2015
• Docket Number: No. 19201.,19201.
• Court: Supreme Court of Connecticut
• Parties: Ronald F. GILL, Jr. v. BRESCOME BARTON, INC., et al.

317 Conn. 33

114 A.3d 1210

Ronald F. GILL, Jr.

v.BRESCOME BARTON, INC., et al.

No. 19201.

Supreme Court of Connecticut.

Argued Dec. 10, 2014.

Decided May 26, 2015.

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

Michael J. Finn, Glastonbury, with whom were Ryan D. Ellard, Shanique D. Fenlator and, on the brief, Brittany T. DeLieto, for the appellee (defendant Chubb & Son).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

Opinion

ROBINSON, J.

The principal issue in this certified appeal is whether, under the unique factual circumstances of this case, a workers' compensation commissioner had the authority to require one insurance carrier to reimburse another insurance carrier for one half of a claimant's temporary total disability payments—given that the commissioner was authorized to impose the full amount of such payments on either insurance carrier under a literal reading of the relapse statute, General Statutes § 31–307b.¹ The defendant Liberty Mutual Insurance Group (Liberty Mutual) appeals, upon our grant of its petition for certification,² from the judgment of the Appellate Court affirming the decision of the Workers' Compensation Review Board (board), which had affirmed the corrected finding and award of the Workers' Compensation Commissioner for the Eighth District (commissioner) requiring Liberty Mutual to reimburse the defendant Chubb & Son (Chubb) for 50 percent of the temporary total disability payments due to the plaintiff, Ronald F. Gill, Jr. (claimant), after his bilateral knee replacement surgery.³ Gill v. Brescome Barton, Inc., 142 Conn.App. 279, 281–82, 68 A.3d 88 (2013). On appeal, Liberty Mutual claims, inter alia, that the commissioner lacked the authority to order the reimbursement. We disagree and, accordingly, affirm the judgment of the Appellate Court.

The record reveals the following undisputed facts and procedural history. The claimant suffered a compensable work-related injury to his left knee on July 2, 1997. At the time of the left knee injury

, Liberty Mutual was the workers' compensation insurance carrier for the claimant's employer, the named defendant, Brescome Barton, Inc. (employer). Subsequently, the claimant suffered a compensable work-related injury to his right knee on April 3, 2002. At the time of the right knee injury, Chubb was the workers' compensation insurance carrier for the employer. These knee injuries were completely unrelated to each other. Liberty Mutual has not disputed its responsibility for the left knee injury and Chubb has not disputed its responsibility for the right knee injury.

At the recommendation of his physician, the claimant was scheduled to have bilateral knee replacement surgery on February 24, 2011. Liberty Mutual and Chubb agreed that this type of surgery was medically necessary and, moreover, that it was reasonable for both knees to be operated on at the same time. On March 10, 2010, the insurance carriers⁴ entered into a voluntary agreement stating that Chubb would administer the payment for the surgery and, in turn, that Liberty Mutual would reimburse Chubb for 50 percent of the surgery costs and incidental expenses.

Although the insurance carriers agreed about paying for the claimant's surgery, they were unable to reach a similar agreement about paying for the claimant's temporary total disability benefits, to which he would be entitled while he recuperated. Initially, Liberty Mutual offered to reimburse Chubb for these benefits at less than one half of the claimant's relapse rate—but Chubb did not accept. Consequently, the insurance carriers proceeded to a formal hearing to resolve their dispute before the commissioner on January 10, 2011.

At the formal hearing, the commissioner heard arguments from the insurance carriers regarding the amount of the claimant's temporary total disability benefits that each should be required to pay. Chubb noted, and Liberty Mutual did not dispute, that the knee injuries

were “separate and distinct,” and that undergoing replacement surgery for either knee would leave the claimant temporarily totally disabled. The commissioner informed the claimant, who was present at the formal hearing, that he would have his upcoming surgery and be paid temporary total disability benefits at his relapse rate. The commissioner added that Chubb would administer the claim for benefits and, further, that his determination would effectively be limited to the amount, if any, that Liberty Mutual should reimburse Chubb for the temporary total disability benefits.

The commissioner issued a corrected finding and award on June 7, 2011.⁵ The listed issue for determination was: “What amount are [Liberty Mutual and Chubb] obligated to pay the claimant for periods of total and temporary partial disability following bilateral knee replacement where each surgery concurrently disables the claimant?” The commissioner found that the claimant “had reached maximum medical improvement for both injuries and now needs a total knee replacement

for both knees.” The commissioner added: “This is a unique situation where neither knee injury affects the other injury. The combination of the two surgeries does not result in the claimant being totally disabled—either knee replacement would totally disable the claimant following surgery. The two injuries are separate and distinct injuries that do not in concert totally disable the claimant. Instead, they are concurrent to each other. The decision to undergo both knee replacements simultaneously benefits the claimant in that he has only one period of recovery and also benefits both insurance carriers in that they are able to split many of the surgical and postsurgical costs that would be duplicative had the claimant opted for two separate surgeries.” Ultimately, the commissioner determined that the relapse

statute, § 31–307b, applied to either knee injury and, therefore, the claimant was entitled to receive temporary total disability payments at his relapse rate of $692.75 per week.⁶ The commissioner ordered Liberty Mutual to reimburse Chubb for 50 percent of such payments.

Liberty Mutual appealed from the corrected finding and award to the board, primarily claiming that the commissioner had failed to follow precedent precluding apportionment in circumstances where a claimant's separate and distinct injuries combine together and cause disability.⁷ Chubb, for its part, argued that the commissioner's corrected finding and award was supported by precedent permitting apportionment in circumstances where a claimant's single preexisting injury is aggravated over time and causes disability.⁸ On June 1, 2012, the board affirmed the commissioner's corrected finding and award, concluding that none of the apportionment precedent cited by the parties governed the sui generis factual circumstances of the case. The board then determined that the commissioner had properly exercised the authority granted to him under General Statutes § 31–278⁹ by equitably resolving the insurance carriers' dispute over the temporary total disability payments that were due to the claimant under the relapse statute, § 31–307b. The board opined that the commissioner could not have lawfully required both of the insurance carriers to remit the total amount of temporary total disability payments, as doing so would have violated Connecticut's well established prohibition on double recoveries. Moreover, the board observed that, if one knee were to recover before the other and was no longer disabling to the claimant, the responsible insurance carrier could file a motion to modify the award, therein asserting that the changed circumstances should require the other insurance carrier to bear the payments in full going forward. The board, however, also reasoned that the commissioner's corrected finding and award was supported implicitly by the insurance carriers' March 10, 2010 agreement, stating: “The agreement in question does not define the term ‘surgical costs' or ‘incidental expenses.’ We believe in this instance ‘incidental expenses' would include the unavoidable expense of ... benefits due [to] the claimant postsurgery.”

Liberty Mutual appealed from the board's decision to the Appellate Court, claiming, inter alia, that the board failed to apply controlling apportionment precedent and improperly analyzed the March 10, 2010 agreement. The Appellate Court disagreed as to the first claim, concluding that none of the precedent cited by Liberty Mutual was “on point with the facts presented here.” Gill v. Brescome Barton, Inc., supra, 142 Conn.App. at 288, 68 A.3d 88. As for the second claim, the Appellate Court concluded that, even if the board had improperly reached a conclusion about the intended meaning of “incidental expenses” under the March 10, 2010 agreement, any such error was harmless because “[t]he findings of the commissioner are sufficient to support his award, which is grounded in the remedial purpose of the [Workers' Compensation Act, General Statutes § 31–275 et seq. ].” Id., at 292, 68 A.3d 88. Specifically, the Appellate Court noted that it would be absurd to “require the [claimant] to undergo two surgeries at different times ....” Id., at 295, 68 A.3d 88. The Appellate Court further cited § 31–278 as a source of authority for the commissioner to resolve statutory lacunae in a remedial manner. Id., at 299, 68 A.3d 88. Accordingly, the Appellate Court unanimously affirmed the decision of the board. Id., at 300, 68 A.3d 88. This certified appeal followed. See footnote 2 of this opinion.

On appeal, Liberty Mutual claims that certain aspects of the decisions of the board and the Appellate Court were inconsistent with the commissioner's findings. See footnote 14 of this opinion. The dispositive thrust of Liberty Mutual's argument, however, is that the commissioner lacked any statutory authority to order the reimbursement to Chubb. Specifically, Liberty Mutual contends that the...