CASE NO. 649 CRD-3-87
JULY 26, 1989
Claimant was represented by Alan Silver, Esq.
Respondent-Employer and Insurer were represented by James L. Pomeranz and Jason M. Dodge, Esq., Pomeranz, Drayton Stabnick.
Respondent-Appellant Second Injury and Compensation Assurance Fund was represented by Robert W. Murphy, Esq. and Robin L. Wilson, Esq., Assistant Attorneys General.
This Petition for Review from the October 7, 1987 Finding and Award of the Third District was heard February 24, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Andrew Denuzze.
Apportionment of liability issues continue to provide a prolific source of litigation in workers' compensation law. The instant appeal involves a subset within that group of cases. It concerns those matters where the primary obligor, the employer, seeks to shift part of its liability to the guarantor, the Second Injury Fund. Here, the decedent employee, Edward Funaro, sustained a compensable injury April 4, 1975, a heart attack. He was paid one hundred four weeks of benefits by the employee's carrier and liability was then transferred to the Second Injury and Compensation Assurance Fund pursuant to Sec. 31-349, C.G.S. On July 6, 1977 Funaro died as a result of his injury. His widow, Judith Funaro, therefore became entitled to survivors' benefits.
Sec. 31-349. Compensation for second disability. Payment of insurance coverage. (a) The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom. If an 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 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, he shall receive compensation for the entire amount of disability, including total disability, less any compensation benefits payable or paid with respect to the previous disability, and necessary medical care, as elsewhere provided in this chapter, notwithstanding the fact that part of such disability was due to prior accidental injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. . . Thereafter all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund. 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 preexisting permanent physical impairment, the employer or his insurance carrier shall, in the first instance, pay the funeral expense described in this chapter, and shall pay death benefits as may be due for the first one hundred four weeks. . . Thereafter all responsibility for compensation shall be with the custodian of the second injury fund.
The Third District Commissioner ordered the Fund to make payments to the widow. But the Fund in the appeal contends that another one hundred four week waiting period must intervene under Sec. 31-349 and that the primarily liable employer must pay survivors' benefits for that number of weeks before liability can again be transferred to the Fund. It bases its argument on the theory that surviving dependents' benefits constitute a separate class from those compensation payments made to an injured live employee. In the Fund's view this argument is buttressed by the statutory design. The statute contains two separate provisions regarding the one hundred four week condition precedent payments: (1) "shall in the first instance pay all awards of compensation . . . for the first one hundred four weeks of disability"; and (2) "shall, in the first instance, . . . pay death benefits as may be due for the first one hundred four weeks."
We do not so read the statute. As discussed in Jacques v. H. O Penn Machinery Co., 166 Conn. 352 (1974), Connecticut law on the apportionment of liability began to develop in the first decade of the Act, e.g. Fair v. Hartford Rubber Works Co., 95 Conn. 350 (1920). Fair had been blind in his left eye. A work injury blinded the right eye also causing total incapacity as defined by the statute. The commissioner awarded benefits for total disability. The carrier appealed claiming the award should have only been for the right eye disability caused by the injury. The court affirmed the commissioner's award holding that the statute did not then provide for apportionment.
Understandably, employers' reluctance to hire handicapped workers was augmented by the Fair holding. To allay employer fears the legislature enacted provisions permitting handicapped employees to sign waivers excusing employers from payment of any future compensation attributable to the waived defects. This protected the employer and encouraged the hiring of the handicapped but then left the injured worker in a vulnerable position. So a process for apportioning liability and payment was created in 1945 with the establishment of the Second Injury Fund. The Fund was to pay those benefits attributable to the old injury or defect and the employer was responsible only for paying those benefits resulting from the new injury.
Larson's treatise, 2 Larson Workmen's Compensation Law Sec. 59.34 describes this type of apportionment scheme and the difficulties sometimes encountered in its application. Probably, because of these difficulties our legislature amended the 1945 law at various times until in 1967 the basic provisions of the present Sec. 31-349, C.G.S. emerged. Essentially, the Fund is now held liable where there was any pre-existing permanent physical impairment from any cause. Further the 1967 Act limited the employer's liability to the first 104 weeks thereby eliminating the administrative problems involved in a case by case apportionment process. Larson tells us that some seven states besides Connecticut enacted similar arbitrary division of liability procedures. In addition to those changes and most relevant to the instant matter, the 1967 legislation for the first time imposed death benefits liability on the Fund. In doing so, however, it enacted a different legal standard for transfer of death benefits liability. In cases of disability benefits during the worker's lifetime transfer of liability was simply bottomed on a cumulative standard, i.e. if the resulting "disability caused by both conditions" was materially and substantially greater than . . . from the second injury alone," Fusco v. TRW Geometric Tool, 4 Conn. Workers' Comp. Rev. Op. 132, 472 CRD-3-86 (1987) and Pich v. Pratt Whitney, 4 Conn. Workers' Comp. Rev. Op. 163, 354 CRD-6-84 (1988). In death benefits the standard became one of proximate causation, i.e. "either the injury or death would not have occurred except for such preexisting permanent physical impairment."
As stated earlier this appeal relies on that distinction and the fact that Sec. 31-349 repeats the one hundred four weeks waiting period language in the death benefits section. It is interesting that prior to the enactment of P.A. No. 78-369 in 1978 and including the period when Sec. 31-349 was passed in its present form, our law treated death benefits and the preceding disability benefits paid during the decedent's life as one continuum. Justice Covello analyzed this concept in Iacomacci v. Trumbull, 209 Conn. 219 (1988). That case concerned an injury occurring before passage of P.A. 78-369 and death from that injury subsequent to 1978. It involved Sec. 31-306(i) which had been repealed by P.A. 78-369.
Sec. 31-306(i) provided in part "If death occurs later than two years from the date of injury . . . the period for which compensation shall be due hereunder shall be reduced by the period for which compensation payments have been made to the deceased employee. . ."
In a different context from the Second Injury Fund legislation, Sec. 31-306(i) also provided a waiting period. Admittedly Sec. 31-306(i) derived from a period in our law when the number of weeks for benefits to be paid was limited, even benefits for total incapacity. In 1953 the legislature eliminated the 780 weeks limitation on total incapacity benefits, but if death occurred later than two years after injury it maintained the 780 weeks limitation for widows' benefits "less any period for which compensation payments shall have been made to the deceased employee on account of such injury or occupational disease," Sec. 7428, Conn. General Statutes, Rev. of 1949, as amended by Sec. 1312b, 1953 Supplement. The 1955 legislature eliminated the limitation on widow's benefits so that she was eligible for life or until remarriage, but it continued to maintain the linkage between disability benefits before death and widows' benefits subsequent to it. In case of death more than two years after injury the same reduction in benefits language employed previously now in effect created the waiting period concept interpreted in Iacomacci.
As this history shows, the legislature was well aware of this benefits continuum, the linkage between disability compensation to the employee and survivors' compensation to dependents, in 1967 when it wrote Sec. 31-349. "In the interpretation of a statute, a radical departure from an established policy cannot be implied. It must be expressed in unequivocal language," Jennings v. Connecticut Light Power Co., 140 Conn. 650, 667 (1954) cited in Iacomacci, supra, 222.
Besides the legislative history the social policy objectives of our Second Injury Fund law need to be examined. Jacques. made clear that such legislation had the dual purpose of encouraging the hiring of the handicapped and relieving the employer "from the hardship of liability for those consequences of compensable injury not attributable to their employment," supra, 356. New York has a similar 104 week apportionment device. Larson pointed out in analyzing that state's law. . . "there is no denying that the provision furnished a powerful inducement to the hiring of handicapped workers, . . ." 2 Larson, op. cit. Sec. 59.34(b) p. 10-546, note 44.
On that same page of the treatise, Larson discusses the Council of State Governments' Draft Workmen's Compensation and Rehabilitation Law which he had drafted. He refers to the apportionment of liability problem between employers and second injury funds first considering the case by case apportionment process which obtained in Connecticut between 1945 and 1967:
". . . The only trouble with this solution is that it poses almost insuperable problems when an attempt is made to apply it to the various new kinds of conditions covered by the draft. It can work reasonably well as to simple amputations and blindness. But how do you calculate sharing when the problem involves preexisting tuberculosis and aggravated tuberculosis, or a rather mildly herniated disc and a later more severe herniated disc? Above all, how do you make a division between a preexisting heart condition and the final indivisible act of death?. . ." 2 Larson, op. cit. Sec. 59.34(b), p. 10.546, note 45.
More than six decades ago Chief Justice Wheeler had noted this same indivisibility of death, "Death is a fixed fact which cannot be apportioned in the manner provided in the amendment to this section of the General Statutes." Biederczycki v. Farrel Foundry and Machine Co., 103 Conn. 701, 706 (1926). That same case also held that the employer was not entitled to relitigate de novo the compensability of the decedent's original heart disease when the widow claimed survivor's benefits.
When the legislature decided in 1967 to add death benefits to the Fund liability in the apportionment scheme, we must necessarily assume it had all these factors in mind — hiring the handicapped, relief for the employer, the disability and death benefits continuum previously noted the unitary nature of the one injury giving rise first to disability compensation and then to survivors' benefits the indivisibility of death and finally the difficulty of apportioning liability case by case. It therefore chose the arbitrary and administratively simple one hundred and four week apportionment device recommended by Larson. But it did not choose that device only for survivors' benefits arising from the indivisible fact of death. It chose it also for those simpler conditions cited by Larson, i.e. amputations and blindness where a case by case apportionment was relatively easier. After the 1967 amendment limited the employer's liability to the first one hundred and four weeks of disability, it went on to declare "Thereafter all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund." Death benefits are included in the word "compensation." This is clear as the very same amendment after repeating the one hundred and four week language in the surviving dependents' section also repeats "Thereafter all responsibility for compensation shall be with the custodian of the second injury fund." In the earlier use of that phrase, the statute does not limit the Second Injury Fund participation by saying "all responsibility for compensation except for death benefits shall be with the custodian of the second injury fund." It uses the word without qualification in both instances.
We think the reason for the repetition of the one hundred four week language with respect to death benefits is not that the legislature was attempting to impose a two hundred and eight week waiting period. That would lessen the encouragement to the hiring of the handicapped it wished to continue. Rather believe that the introduction of a new causation standard and burden of proof in the dependency benefit portion necessitated the repetition. In this regard it should be noted that the causality standard for death benefit liability was not really a new concept in our law. Sec. 31-284, C.G.S. and its predecessors always included it using the language "on account of death resulting from personal injury so sustained." Sec. 31-306(b) and its antecedents similarly employed the formula "on account of death resulting from an accident arising out of and in the course of employment or from an occupational disease." In both these instances the proof and liability requirements for death benefits had to be restated in language separate from liability for disability benefits. The "except for" formula of Sec. 31-349, C.G.S. is simply a restatement of the proximate causation phrase "resulting from" used in the earlier statutes. Again, to quote Chief Justice Wheeler writing forty-one years before the enactment of the present Sec. 31-349, "All that the dependent must prove are, the employee's death, the dependence, and the causal connection between the injury . . . and the death." Biederczycki v. Farrel, supra, 705.
Consider the situation with respect to Sec. 31-306(i) have shown, continued to be law in 1967 and until 1978. Assume that the injured decedent as in the Iacomacci case received disability benefits for seven and one half years from 1974 to 1981. Assume further it was an apportioned liability Fund case and the matter had been transferred to the Fund in 1976, the Fund paying benefits until December, 1981. At decedent's death the widow needed to wait until 1989 before she could receive dependency compensation. As of that date are to give Sec. 31-349 such a tortured interpretation that the employer's carrier has to come back on the risk after the Fund has paid for five and one half years only to have the Fund reenter the picture in 1991? Such a result can hardly contribute to the administrative simplicity which the one hundred and four week apportionment device was supposed to establish nor would it constitute the encouragement to hiring the handicapped contemplated by the statute. Neither would it comply with the rationale of the Biederczycki holding that disability compensation and dependency benefits arising from the same injury are inextricably entwined.
We conclude Sec. 31-349 contemplates only a single one hundred and four week waiting period for death and disability benefits and not two distinct and separate such periods.
The commissioner's decision is affirmed and the appeal is dismissed.
Commissioners Robin Waller and Andrew Denuzze concur.