Jacques v. H. O. Penn Machinery Co., Inc.

• Decision Date: 14 May 1974
• Citation: 166 Conn. 352,349 A.2d 847
• Court: Connecticut Supreme Court
• Parties: Iris R. JACQUES et al. v. H. O. PENN MACHINERY COMPANY INC. et al.

Page 847

349 A.2d 847

166 Conn. 352

Iris R. JACQUES et al. v. H. O. PENN MACHINERY COMPANY INC. et al.

Supreme Court of Connecticut.

May 14, 1974.

Marshall S. Feingold, Hartford, with whom, on the brief, was Edward D. O'Brien, Jr., for appellants (named defendant and others).

Edward D. O'Brien, Asst. Atty. Gen., with whom were William J. Friedeberg, Asst. Atty. Gen., and, on the brief, Robert K. Killian, Atty. Gen., for appellant (defendant the Second Injury and Compensation Assurance Fund).

No appearance for plaintiffs.

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

BOGDANSKI, Associate Justice.

This appeal requires this court to construe portions of General Statutes § 31-349, which governs payments to disabled employees from the Second Injury and Compensation Assurance Fund. The respondents, the H. O. Penn Machinery Company (the Penn Company) and the Aetna Casualty and Surety Company (Aetna), appealed to the Superior Court from an award of the workmen's compensation commissioner at large. From the judgment dismissing the appeal, the respondents have appealed to this court and the defendant, the Second Injury and Compensation Assurance Fund, has cross appealed.

On April 15, 1970, Paul C. Jacques injured his right knee in the course of his employment with the Penn Company. Immediately after surgery for his knee on October 29, 1970, Jacques died of a coronary occlusion. The compensation commissioner found the Jacques' death resulted from the surgery and ordered the respondents to pay Jacques' burial exenses and to pay weekly compensation benefits to his dependents. The respondents did not contest the compensability of Jacques' injury and his subsequent death.

The commissioner also found that Jacques had had arteriosclerotic heart disease, of which he had been unaware. The existence of the heart disease was first discovered during the autopsy. The respondents contended that the heart disease was a 'pre-existing permanent physical impairment,' within the meaning of General Statutes § 31-349, and that Jacques' death would not have occurred except for that impairment. Accordingly, they argued, § 31-349 limited their liability to 104 weeks. The commissioner denied both claims of the respondents. On appeal, however, the Superior Court concluded that Jacques' arteriosclerotic heart disease did constitute a 'pre-existing permanent physical impairment' within the meaning of General Statutes § 31-349. But the court also held that the commissioner had not erred in refusing to find that his death would not have occurred except for that impairment.

In its cross appeal the second injury fund argues that Jacques' arteriosclerotic heart disease was not a 'pre-existing permanent physical impairment' because it had not manifested itself during his life or, alternatively, because his employer had no prior knowledge of the heart disease. In their appeal the respondents claim that the medical evidence required a finding that the death would not have occurred in the absence of his heart disease.

To prevent discrimination against handicapped workers, while providing the benefits of workmen's compensation to such workers, virtually every state has enacted some form of second injury fund legislation. See Lawson v. Suwannee Fruit & Steamship Co., 336 U.S. 198, 69 S.Ct. 503, 93 L.Ed. 611 (involving the second injury fund provisions of the federal Longshoremen's and Harbor Workers' Compensation Act); 2 Larson, Workmen's Compensation Law § 59.31, p. 88.119. Such legislation is also designed to relieve employers from the hardship of liability for those consequences of compensable injury not attributable to their employment. 2 Larson, op. cit. § 59.33, p. 88.153. In the early days of workmen's compensation, employers were often held liable for the full consequences of work-related accidents suffered by their employees, even though those consequences were aggravated by preexisting disabilities. For example, in Fair v. Hartford Rubber Works Co., 95 Conn. 350, 11 A. 193, a one-eyed employee who lost the sight of his remaining eye in a compensable accident was held to be entitled to compensation for his total incapacity rather than to the lesser sum specifically provided in the Workmen's Compensation Act for the loss of one eye. As a result of such holdings, compensation insurance premiums on handicapped employees increased significantly. Employers had a strong economic incentive for firing and refusing to hire handicapped employees. ¹ 2 Larson, op. cit. § 59.31, pp. 88.118, 88.119.

Legislative response was not long in coming. In Connecticut, the rule of Fair v. Hartford Rubber Works Co., supra, was statutorily abandoned in favor of an apportionment scheme; ² see Cashman v. McTernan School, Inc., 130 Conn. 401, 404, 34 A.2d 874; Henry v. Keegan, 121 Conn. 71, 74-76, 183 A. 14; and employers were permitted to condition the employment of handicapped workers on their written waiver of any future compensation attributable to their physical defects. General Statutes § 31-325. The legislature thus removed the reason for discrimination against handicapped workers and protected the employer from hardship. But handicapped employees were deprived of adequate protection in the event of a second disability.

To remedy that situation this state adopted second injury fund legislation in 1945. Public Acts 1945, No. 188. The present statutory provisions, General Statutes §§ 31-349 to 31-355, are the product of considerable evolution. Originally, only employees who had previously incurred 'permanent partial incapacity by means of the total loss of, or the total loss of use of, one hand, one arm, one foot, one leg or one eye, or the reduction of sight in one eye to one-tenth or less of normal vision with glasses,' had recourse to the second injury fund. Public Acts 1945, No. 188. In 1959 the General Assembly deleted all reference to specific disabilities, so that the second injury fund statute applied to any employee with a previously incurred 'permanent partial incapacity.' Public Acts 1959, No. 580. In 1967 the General Assembly substituted the present statute, which applies to any employee 'who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other (preexisting) permanent physical impairment.' General Statutes § 31-349. The new term, 'permanent physical impairment,' is not defined in the statute.

Any covered employee who '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, . . . shall receive compensation for the entire amount of disability, including total disability, and necessary medical care, . . . notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes.' General Statutes § 31-349. By following the prescribed procedures, the employer may limit his liability to payments due in the first 104 weeks of the employee's second disability, after which the second injury fund assumes responsibility for compensation and medical treatment. Another portion of § 31-349 specifically governs death benefits: 'If the subsequent injury of such an employee resulting from an accident arising out of and in the course of his employment shall result in the death of the employee, and it shall be determined that either the injury or death would not have occurred except for such pre-existing permanent physical impairment,' the employer is entitled to limit his liability to funeral expenses plus death benefits for the first 104 weeks. General Statutes § 31-349.

Our first task is to determine whether the phrase 'permanent physical impairment' must be construed to include the decedent's heart disease, although that disease had neither manifested itself so as to be a hindrance to obtaining employment nor come to the attention of the employer. ³ The courts of several jurisdictions have read one or the other requirement into statutes similar to our own. The New York statute also employs the phrase 'permanent physical impairment,' defining it to mean 'any permanent condition due to previous accident or disease or any congenital condition which is or is likely to be a hindrance or obstacle to employment.' N.Y.Workmen's Comp.Law § 15(8) (b). McKinney's Consol.Laws, c. 816. The New York Court of Appeals has implied a requirement that the employer have knowledge of the employee's impairment and a good faith belief of its permanecy. Matter of Bellucci v. Tip Top Farms, Inc., 24 N.Y.2d 416, 420, 301 N.Y.S.2d 14, 248 N.E.2d 864. The court reasoned (pp. 419-420, 301 N.Y.S.2d p. 17, 248 N.E.2d p. 866): 'That some knowledge by the employer of the permanent and disabling nature of the pre-existing impairment of its employee is required by section 15 (subd. 8) . . . is indicated by the express policy of the statute to encourage employment of the handicapped. This policy is based upon the reluctance of employers to hire or retain employees whose possible subsequent injuries could result in increased financial burdens upon the employer because of the existence of a prior permanent impairment. Obviously, the legislature would have no need to encourage employment of workers whose impairments are unknown to employers since such workers would meet no special barriers to general employment.' Other courts have not required actual employer knowledge, but have reasoned that the policy of second injury fund legislation requires them to distinguish between 'manifest' and 'latent' preexisting conditions. See American Mutual Ins. Co. of Boston v. Jones, 138 U.S.App.D.C. 269, 426 F.2d 1263, 1267; Boyd-Campbell Co. v. Shea, 254 F.Supp. 483, 486 (S.D.Tex.); ...