Lovett v. Atlas Truck Leasing

• Decision Date: 14 September 1976
• Citation: 370 A.2d 1061,171 Conn. 577
• Court: Connecticut Supreme Court
• Parties: Donald W. LOVETT v. ATLAS TRUCK LEASING et al.

Page 1061

370 A.2d 1061

171 Conn. 577

Donald W. LOVETT v. ATLAS TRUCK LEASING et al.

Supreme Court of Connecticut.

Sept. 14, 1976.

Howard B. Field III, East Hartford, with whom, on the brief, were George A. Downing, East Hartford, and Mark R. Perkell, New London, for appellants (named defendant and Liberty Mut. Ins. Co.).

L. Paul Sullivan, Hartford, for appellee (plaintiff).

Edward D. O'Brien, Sr., Asst. Atty. Gen., with whom were William J. Friedeberg, Asst. Atty. Gen., and, on the brief, Carl R. Ajello, Atty. Gen., for appellee (defendant Henry E. Parker, state treasurer).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ. BOGDANSKI, Associate Justice.

This case requires this court to construe portions of General Statutes § 31-349, which governs the respective liabilities of an employer and the second injury and compensation assurance fund to an employee who has a preexisting permanent physical impairment and who subsequently suffers a second injury arising out of and in the course of his employment, resulting in a permanent disability. The respondents, Atlas Truck Leasing and the Liberty Mutual Insurance Company, appealed to the Court of Common Pleas from a finding and award of compensation by the workmen's compensation commissioner for the fifth congressional district. From the judgment dismissing the appeal the respondents have appealed to this court, assigning error in the court's refusal to correct the finding and in the overruling of their claims at law.

On November 7, 1968, the claimant, Donald W. Lovett, sustained numerous severe injuries when a large truck tire, which he was repairing in the course of his employment, exploded. ¹ The force exerted by the explosion caused a derangement of the rear portion of the eye, or retina, and lesions on the retina, known as macula, in each of the claimant's eyes. As a result of this injury, the vision in the left eye was reduced to 20/200, and the vision in his right eye was reduced to 20/60.

Prior to the accident, a routine employment-type physical examination revealed that the claimant had a condition in each eye known as 'astigmatism.' An examination of his eyeglasses disclosed that the astigmatism, uncorrected, would reflect a 33 percent diminution of vision in the left eye, and a 20 percent diminution of vision in the right eye. Astigmatism involves the shape of the front portion of the eye, the lens: the eye injuries caused by the accident of November 7, 1968, however, involved the retina at the rear of each eye.

The commissioner found that the injury to the retina of the left eye, in and of itself, could and did cause a 100 percent loss of vision in the left eye, and that the ultimate disability was not made substantially greater by the preexisting astigmatism. He also found that the claimant had a preexisting diminution of uncorrected vision in the right eye of 20 percent, and that, because of the second injury to the right eye, the disability of the right eye caused by both conditions was materially and substantially greater than that which would have resulted from the second injury alone. He concluded that there was a 40 percent loss of uncorrected vision in the right eye.

Based on those findings, the commissioner awarded the claimant compensation for 235 weeks for the total loss of vision in the left eye, pursuant to provisions of General Statutes § 31-308, and 93 weeks of compensation for the 40 percent loss of vision in the right eye, pursuant to General Statutes § 31-349. ²

The respondents have briefed only three of their assigned errors concerning the court's failure to correct the finding. All other errors directed at the finding are therefore considered abandoned. Pappas v. Pappas, 164 Conn. 242, 243-44, 320 A.2d 809; State v. Grayton, 163 Conn. 104, 109, 302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S.Ct. 542, 34 L.Ed.2d 495.

The respondents claim that the court should have found that the astigmatism together with the nearsightedness, rather than astigmatism alone, were the cause of the prior impairment of both eyes, and that the post-accident vision of the left eye was correctible with glasses. The inclusion of those facts in the finding would not affect the conclusions reached nor benefit the respondents in presenting the questions of law which they desire to have reviewed by this court. See Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 381, 311 A.2d 77; State v. Carnegie, 158 Conn. 264, 266, 259 A.2d 628.

The respondents raise the issue whether the trial court erred in sustaining the commissioner's conclusion that the accident in itself produced the entire loss of vision in the left eye and that the preexisting astigmatism did not 'materially and substantially' increase that loss of vision.

To prevail on that assignment of error, it is necessary to show that the conclusion reached by the trial court was legally or logically inconsistent with the facts found or that it involved the application of some erroneous rule of law material to the case. New Haven v. United Illuminating Co., 168 Conn. 478, 483, 362 A.2d 785; Hutensky v. Avon, 163 Conn. 433, 437, 311 A.2d 92. In answer to the question whether the injuries to the eyes caused by the accident were made greater because of the original astigmatism, Dr. William B. Brewster, Jr., the principal medical witness, testified that the injury to the back of the eye caused by the accident, in itself, was sufficient to cause total loss of vision to the left eye. He further stated that the preexisting problem made no difference at all. That testimony fully and reasonably supported the trial court's challenged conclusion.

The respondents next contend that where the accident, independent of any preexisting impairment, produces total disability, the employer should be entitled to deduct compensation for the amount of any preexisting disability.

In workmen's compensation cases, the general rule is that where the accident, in and of itself, causes total disability, the accident is deemed to be the entire cause of the resultant total disability despite the existence of a preexisting impairment. Jacques v. H. O. Penn Machinery Co., 166 Conn. 352, 356, 349 A.2d 847; Fair v. Hartford Rubber Works Co., 95 Conn. 350, 111 A. 193. The rule is that the employee is entitled to full compensation where the accident is a substantial factor in producing the resultant disability. 'Apportionment' between employer and employee exists solely by statute and is an exception to the rule. But even statutory apportionment is never relevant unless the preexisting impairment was 'an essential factor' in causing the end result. The harshness of this rule has in recent times been mitigated by the adoption in most states of some form of second injury fund legislation whereby employer liability can be limited in certain circumstances as where an employee's preexisting permanent impairment, whether by prior accident, disease or congenital causes, combines with a second injury resulting in a materially and substantially greater disability. See Jacques v. H. O. Penn Machinery Co., supra, 166 Conn. 357, 349 A.2d 847. We nonetheless conclude that the manner of apportionment as advanced by these respondents does not apply to the present situation. See Jacques v. H. O. Penn Machinery Co., supra; Hartz v. Hartford Faience Co., 90 Conn. 539, 543, 97 A. 1020.

'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. . . . 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....