Hatt v. Burlington Coat Factory, (SC 16737).

• Citation: 819 A.2d 260,263 Conn. 279
• Decision Date: 22 April 2003
• Docket Number: (SC 16737).
• Court: Supreme Court of Connecticut
• Parties: MARY ANN HATT v. BURLINGTON COAT FACTORY ET AL.

263 Conn. 279
819 A.2d 260

MARY ANN HATT
v.
BURLINGTON COAT FACTORY ET AL

(SC 16737).

Supreme Court of Connecticut.

Argued September 24, 2002.

Officially released April 22, 2003.

Borden, Norcott, Katz, Vertefeuille and Zarella, Js.

263 Conn. 280

Joseph J. Passaretti, Jr., with whom was Karen A. Wright, for the appellants (named defendant et al.)

Lori D. McHugh, for the appellee (defendant Fireman's Fund Insurance Company).

Opinion

NORCOTT, J.

This appeal presents the issues of whether the workers' compensation review board (board) improperly: (1) concluded that General Statutes § 31-349¹ abrogated common-law apportionment in

263 Conn. 281

workers' compensation cases and that § 31-349 (d),

263 Conn. 282

which closed the second injury fund to new claims, renders the insurer at the time of the claimant's second injury solely liable for those disability claims; (2) concluded that General Statutes (Rev. to 1999) § 31-299b² permits apportionment only in cases of repetitive

263 Conn. 283

trauma or occupational disease and, therefore, does not provide a basis for apportionment of liability among insurers when the claimant has suffered two separate and distinct injuries; and (3) denied the motion of the defendant Atlantic Mutual Insurance Company (Atlantic Mutual) to dismiss the appeal of the defendant Fireman's Fund Insurance Company (Fireman's Fund) from the decision of the workers' compensation commissioner (commissioner). The board concluded that Atlantic Mutual was solely responsible for the medical and disability expenses of the plaintiff, Mary Ann Hatt,³ and could not seek apportionment of any part of its liability for those expenses from Fireman's Fund. Atlantic Mutual appeals⁴ from, and we affirm, the decision of the board

The record reveals that the facts and procedural history relevant to the disposition of this appeal are not in dispute. The plaintiff has worked full-time for the named defendant, Burlington Coat Factory, since September, 1982. She initially was hired as a sales associate and then was promoted to department manager in 1986.

263 Conn. 284

The plaintiff's work duties in both positions required her to be on her feet constantly for approximately eight hours per day. On February 19, 1988, she suffered an injury to her left ankle and foot when she stepped on the base of a clothing rack while moving it through the store. The plaintiff promptly reported her injury and was treated by William Jones, an orthopedist. She was disabled for ten to fourteen days following this injury, and she continued to suffer "knife-like" pain in her left foot after she returned to work. Despite her constant pain, the plaintiff's duties did not change when she returned to work and continued to require her to stand for long hours. She returned to Jones in June, 1989, because of her continuing pain. He diagnosed her with a severe muscle and ligament strain to her left foot, noting a deformity, but concluded that X rays showed no evidence of a fracture or of other bone or joint abnormalities. At that examination in June, 1989, Jones found that the plaintiff had suffered a permanent impairment as a result of the injury and rated her as having a 10 percent disability of the left foot. Jones then prescribed orthotic supports for the plaintiff's foot. Fireman's Fund, as the workers' compensation liability insurer for Burlington Coat Factory at that time, issued a voluntary agreement, which a commissioner approved on January 24, 1990, indemnifying the plaintiff for this disability, and paying her other disability and medical benefits

The plaintiff continued to see Jones for treatment of her injury into the 1990s. She also continued to work for Burlington Coat Factory, remaining constantly on her feet for more than forty hours per week. During the early 1990s, her pain progressively worsened. The plaintiff's injury and its accompanying pain grew progressively worse to the point that, by 1994, the appearance of her left foot had changed dramatically.⁵ She

263 Conn. 285

continued to see Jones for treatment; in October, 1995, after taking X rays, he prescribed new orthotics and increased her disability rating to 25 percent.

In August, 1997, Fireman's Fund filed notice with the commissioner that it intended to contest liability for the plaintiff's continued treatment on the ground that the treatment was unrelated to the original 1988 injury. At that point, the plaintiff was still seeking additional medical opinions. In October, 1997, the plaintiff returned to Jones, who stated that, despite her continued pain, he did not think surgery was warranted for her injured foot. In 1998, Fireman's Fund sent the plaintiff to Vincent Santoro, another orthopedist, for an independent medical evaluation. In a May, 1998 report, Santoro concluded that the plaintiff had developed arthritis in her left foot, along with a progressive deformity and flattening of the arch. Santoro found that the arthritis was a more recent development because, in his opinion, the 1995 X rays showed that the plaintiff did not suffer arthritis at that time. He diagnosed her condition in 1998 as posterior tendon dysfunction with a secondary flat foot deformity. Santoro concluded that the plaintiff's left foot condition was unrelated to aging and was caused by aggravation of her initial compensable injuries resulting from her work duties from 1988 to 1999. He also determined that this condition could have resulted from a single trauma, or through a progressive degenerative process. Santoro concluded that the plaintiff had a 25 percent permanent disability of her left foot, and that it required surgery. Subsequently, in 1998, the plaintiff adopted Santoro as her treating physician. In March, 2000, Santoro performed corrective surgery on the plaintiff's left foot.

When Santoro examined the plaintiff in May, 1998, Burlington Coat Factory was no longer insured for workers' compensation by Fireman's Fund, and was insured by Atlantic Mutual. In August, 1998, the plaintiff

263 Conn. 286

filed, with the commissioner, a notice of claim for compensation "for May 19, 1998 left and right foot injuries sustained after February 19, 1988, caused by continued exposure to her occupation at [Burlington Coat Factory]."⁶ In September, 1998, Atlantic Mutual filed notice with the commissioner of its intention to contest liability for these injuries. In September, 1999, Stephen Selden, an orthopedist, examined the plaintiff at the request of Atlantic Mutual. Selden agreed with Santoro's diagnosis of a left posterior tendon dysfunction and his conclusion that surgery was a reasonable treatment. Selden disagreed, however, with Santoro's conclusion as to the etiology of the plaintiff's condition. Selden concluded that her condition in 1999 was the result of a combination from her initial 1988 injury, aging and excess weight.

At a hearing on the matter, the commissioner accepted Santoro's conclusions rather than Selden's, concluding that Santoro was in a better position to assess the etiology of the plaintiff's condition. The commissioner determined that the plaintiff's condition on May 19, 1998, was "an injury which arose during and out of the course of her employment . . . ." The commissioner stated that this condition was a cumulative injury that was the result of work activities following the initial 1988 injury. The commissioner further concluded that the liability for the plaintiff's post-May 19, 1998 disability from work and all associated medical expenses should be shared between the two insurers, Fireman's Fund and Atlantic Mutual, allocating 75 percent of the liability to Fireman's Fund and the remaining 25 percent to Atlantic Mutual. Pursuant to § 31-299b,

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the commissioner ordered Atlantic Mutual, as primary payor, to pay the plaintiff's total compensation and the associated medical expenses, and then ordered Fireman's Fund to reimburse Atlantic Mutual for 75 percent of those expenses.

Fireman's Fund then petitioned the board for review of the commissioner's decision. Fireman's Fund claimed that the commissioner improperly had apportioned to it 75 percent of the liability for the plaintiff's medical and disability benefits. Fireman's Fund contended that the entire liability should have been assigned to Atlantic Mutual because it was the employer's insurance carrier at the time of the second injury. Atlantic Mutual moved to dismiss Fireman's Fund's appeal to the board as untimely filed.

The board denied Atlantic Mutual's motion to dismiss because it concluded that Fireman's Fund lacked proper notice of the commissioner's decision, and reversed the commissioner's decision, holding that Atlantic Mutual, as Burlington Coat Factory's workers' compensation carrier at the time of the plaintiff's injury, solely was liable for the plaintiff's medical and disability expenses as a result of the second injury. The board determined that the plaintiff had in fact suffered two separate and distinct injuries to her left foot: (1) the single accident in 1988; and (2) a second injury resulting from multiple years of repetitive trauma. The board concluded that the apportionment scheme under § 31-299b was inapplicable because that statute addresses single injuries such as occupational diseases or repetitive traumas, namely, conditions resulting from a "period of prolonged exposure spanning a time continuum involving multiple employers or insurers." In the board's view, § 31-299b was not intended to "apportion liability among two or more entirely separate and identifiable injuries." The board then relied on our decision in Fimiani v. Star Gallo Distributors, Inc., 248 Conn.

263 Conn. 288

635, 729 A.2d 212 (1999), and concluded that, despite the closing of the second injury fund to new claims and our decision in Mund v. Farmers' Cooperative, Inc., 139 Conn. 338, 94 A.2d 19 (1952), § 31-349 required that the employer and its carrier at the time of the second injury...