Hernandez v. Gerber Group

Citation608 A.2d 87,222 Conn. 78
Decision Date12 May 1992
Docket NumberNo. 14372,14372
CourtSupreme Court of Connecticut
PartiesRamon HERNANDEZ v. GERBER GROUP et al.

David R. Bull, New York City, for appellants (named defendant et al.).

Robert W. Murphy, Asst. Atty. Gen., with whom, on the brief, were Richard Blumenthal, Atty. Gen., and Charles A. Overend and Kathleen R. Smith, Asst. Attys. Gen., for appellee (defendant Second Injury and Compensation Assur. Fund).

Before PETERS, C.J., and SHEA, GLASS, COVELLO and SANTANIELLO, JJ.

PETERS, Chief Justice.

The dispositive issue in this appeal is whether the Second Injury and Compensation Assurance Fund (Fund), which under General Statutes § 31-349 1 assumes responsibility for compensation for injuries arising out of an employee's preexisting injuries, must pay for an employee's leg disability that is sustained as a result of treatment for a compensable heart disability. The defendant Fund appealed to the compensation review division from an order by the workers' compensation commissioner for the fourth district transferring liability to the Fund for an injury suffered by the plaintiff, Ramon Hernandez. The compensation review division sustained the Fund's appeal, and the employer, Gerber Group, and the employer's insurer, St. Paul Fire and Marine Insurance Company, appealed to the Appellate Court. We transferred the case to ourselves pursuant to Practice Book § 4023 and now reverse.

The parties stipulated to the following facts. On December 23, 1985, Hernandez suffered a myocardial infarction (heart attack) that arose out of and in the course of his employment. His employer's insurer acknowledged the compensability of the claim, and on December 16, 1987, issued a voluntary agreement, which was approved by the fourth district commissioner. On March 2, 1988, the Fund agreed to accept transfer of liability for the heart injury pursuant to General Statutes § 31-349(a). 2 On March 24, 1988, the commissioner approved a voluntary agreement for 40 percent permanent partial disability of the heart for Hernandez.

In the course of receiving treatment for the heart injury, Hernandez underwent a cardiac catheterization. As a result of the catheterization, he sustained a permanent partial disability of the right leg. The employer's insurer acknowledged the compensability of the loss of the use of the leg, and issued a voluntary agreement that was approved by the commissioner on May 16, 1988. On March 2, 1989, Hernandez and the insurer agreed upon a 29 percent permanent partial disability of the leg, and the insurer's voluntary agreement to that effect was approved by the commissioner on March 20, 1989.

Thereafter, the insurer sought to transfer liability for the right leg disability to the Fund. The Fund refused to accept transfer of liability, because there was no preexisting disability of the leg. The compensation commissioner for the fourth district ordered the Fund to accept transfer of liability for the leg injury, finding that "the injury to, and resulting disability of the claimant's right leg is so inextricably woven into the claimant's myocardial infarction that it cannot be said to be a separate injury and cannot be considered apart from the myocardial infarction." The Fund appealed to the compensation review division, which reversed the fourth district commissioner's decision.

In their appeal to this court, the employer and the employer's insurer have raised two issues. Their principal contention is that the compensation review division should have concluded, as a matter of law, that § 31-349 imposed liability on the Fund in the circumstances of this case. Alternatively, they maintain that the decision rendered by the compensation review division should be overturned because it constituted an insupportable departure from the factual findings and conclusions of the compensation commissioner. Because we agree with the first of these contentions, we need not address the second. 3

The legislature's remedial purpose in enacting § 31-349 is well established. " ' "To prevent discrimination against handicapped workers, while providing the benefits of [workers'] compensation to such workers, virtually every state has enacted some form of second injury fund legislation.... Such legislation is also designed to relieve employers from the hardship of liability for those consequences of compensable injury not attributable to their employment." Jacques v. H.O. Penn Machinery Co., [166 Conn. 352, 355-56, 349 A.2d 847 (1974) ].' " Plesz v. United Technologies Corporation, 174 Conn. 181, 185, 384 A.2d 363 (1978). Under § 31-349, the Connecticut second injury fund statute, "[i]f an employee who has ... [a] permanent physical impairment, 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's obligation is limited to the first 104 weeks of the employee's disability. Thereafter, liability for all compensation for the injury shifts to the Fund.

In denying the employer's claim in this case, the review division did not question the general rule that the Fund is liable for an employee's second work-related disability. It noted that this court, in De la Pena v. Jackson Stone Co., 103 Conn. 93, 100 130 A. 89 (1925), had described a compensable personal injury as including "the entire transaction to which the injury is traced, not only the operative causes but their effect on the body of the injured person." The review division read Lovett v. Atlas Truck Leasing, 171 Conn. 577, 370 A.2d 1061 (1976), however, as precluding liability in the circumstances of this case. We disagree with the review division's interpretation of Lovett.

As a result of a single accident, the claimant in Lovett sustained several severe injuries, including injuries to his eyes, back, teeth, mouth and jaws. The claimant had suffered from a preexisting astigmatism of both eyes. With respect to the eye injuries sustained in the accident, the commissioner awarded 235 weeks of compensation for total loss of vision in the left eye and ninety-three weeks of compensation for 40 percent loss of vision in the right eye. The commissioner did not transfer liability for any part of either eye injury to the Fund. The commissioner found that the injury to the left eye was sufficient to cause total loss of vision, and that the preexisting problem had not materially and substantially increased that loss of vision. The preexisting astigmatism was found to have made the injury to the right eye materially and substantially greater than that which would have resulted from the second injury alone, but because the employer would not pay 104 weeks of compensation for that injury, the Fund was found to have no liability.

The employer and its insurer in Lovett contended that, in calculating the 104 weeks required to be paid under § 31-349, they were entitled to a contribution from the Fund because they should have received credit for weekly payments already made for other disabilities arising from the accident. We rejected this claim. "The defendants appear to be claiming that the remedial objectives of the workmen's compensation act are restricted to accidents rather than injuries. The short answer is that the second injury fund may become liable for permanent disability to each part of the body covered by the act, with each disability to be considered a separate injury, notwithstanding the fact that more than one injury may arise out of the same accident. See Olmstead v. Lamphier, 93 Conn. 20, 22, 104 A. 488 [1918]; Franko v. Schollhorn Co., 93 Conn. 13, 17-18, 104 A. 485 [1918]." Id., 171 Conn. at 585-86, 370 A.2d 1061.

The compensation review division understood our holding in Lovett to mean "that before transfer of liability for a body part disability, the employer must have paid one hundred four weeks of benefits attributable to that specific body part." The review division recognized that this would be a radical departure from preexisting law, but it believed that it was bound by Lovett to conclude that Hernandez' preexisting heart condition was an injury legally separate from the injury to his leg. The question before us, therefore, is whether Lovett has the draconian consequences attributed to it by the compensation review division.

To place our decision in Lovett in context, we must examine the two cases on which Lovett relied for its holding...

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