Plesz v. United Technologies Corp.

• Citation: 174 Conn. 181,384 A.2d 363
• Court: Supreme Court of Connecticut
• Decision Date: 17 January 1978
• Parties: Edward B. PLESZ v. UNITED TECHNOLOGIES CORPORATION et al.

Page 363

384 A.2d 363

174 Conn. 181

Edward B. PLESZ v. UNITED TECHNOLOGIES CORPORATION et al.

Supreme Court of Connecticut.

Argued Nov. 2, 1977.

Decided Jan. 17, 1978.

Howard B. Field III, East Hartford, with whom, on the brief, were George A. Downing and Mark R. Perkell, East Hartford, for appellants (named defendants et al.).

Robert W. Murphy, Asst. Atty. Gen., with whom, on the brief, was Carl R. Ajello, Atty. Gen., for appellee (defendant second injury and compensation assurance fund).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

BOGDANSKI, Associate Justice.

The defendants United Technologies Corporation and Liberty Mutual Insurance Company, hereinafter the defendants, appealed to the Court of Common Pleas from a finding and award of the workmen's compensation commissioner at large, acting for the first district. From a judgment dismissing the appeal, the defendants appealed to this court, assigning error in the court's refusal to correct the finding, in the conclusions reached, and in the overruling of their claims of law.

In his finding and award filed January 3, 1976, the compensation commissioner found the following: On October 31, 1969, while in the employ of the defendant employer, the plaintiff sustained an injury to his back, requiring surgery, and that injury arose out of and in the course of his employment. Previous to the accident of October 31, 1969, the plaintiff had incurred a prior physical impairment to his back, which had required three surgical procedures, and the plaintiff's present total disability is caused by both conditions and is materially and substantially greater than that which would have resulted from the second injury alone. The defendant insurer paid the plaintiff compensation, together with his medical expenses, from November 4, 1969, to date. On June 1, 1973, the defendants filed a claim with the custodian of the second injury and compensation assurance fund requesting that the fund assume responsibility under § 31-349 of the General Statutes.

In his finding the compensation commissioner also noted that the custodian of the second injury fund contended that the fund would not assume responsibility because the defendants failed to comply with the provisions of § 31-349 which sets forth the procedure to be followed by them to limit their liability. The commissioner found that the defendants failed to comply with the provisions of § 31-349 in not submitting a voluntary agreement or award, in not giving the custodian of the second injury fund notice of the pending case ninety days prior to the expiration of the 104-week period, and in not filing with the commissioner and with the custodian a form indicating that all compensation and medical bills had been paid for a period of 104 weeks.

The commissioner then sustained the claims of the custodian and ordered the defendants to continue paying temporary total compensation and medical benefits to the plaintiff until it is shown that his incapacity has diminished or ceased.

On this appeal the defendants have assigned error in the failure of the trial court to correct the finding and award, in the court's conclusion that § 31-325 of the General Statutes, pertaining to waivers, did not apply, in the conclusion that a failure to give the ninety days notice was a bar to recourse to the second injury fund, and in the overruling of their claims of law.

As to the assignment of error addressed to the motion to correct, the motion to correct the finding and award as filed in this case was properly denied since it amounted to nothing more than a series of claims of law in the nature of an assignment of error rather than a motion to correct as required by the rules. Practice Book § 567G; see Maltbie, Conn.App.Proc. § 153. With respect to the error claimed as to the conclusion that § 31-325, pertaining to waivers, did not apply, the commissioner's finding that the accident of October 31, 1969, was not attributable in a material degree to the physical defects which had been waived fully supports that conclusion. ¹ That factual finding has not been challenged. The claim lacks merit.

The principal issue on this appeal is whether the defendants' failure to comply with the provisions of § 31-349 acts as a bar to recourse against the second injury fund.

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, 354, 111 A. 193. The harshness of that rule has in recent times been mitigated by the adoption by most states of some form of second injury fund legislation by which employer liability can be limited in certain circumstances such as where an employee's preexisting impairment, whether by prior accident, disease or congenital causes, combines with a second injury resulting in a materially and substantially greater disability. Jacques v. H. O. Penn Machinery Co., supra, 166 Conn. 357, 349 A.2d 847.

" '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. H. O. Penn Machinery Co., supra (166 Conn.), 355-56 (349 A.2d 847). The current second injury legislation of this state, found in General Statutes §§ 31-349 through 31-355 is a product of evolution, having its roots in 1945 Public Acts, No. 188. The General Statutes presently provide that 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...