CASE NO. 1232 CRD-2-91-5Workers’ Compensation Commission
FEBRUARY 4, 1993
The claimant was represented by Frederick C. Berberick, Jr. Esq.
The respondents Colchester Egg Farms, Inc. and Kemper Insurance Group, were represented by Tracy Green Cleary, Esq.
The respondents, Home Insurance Company and Zurich American Insurance Company, were represented by Kevin Maher, Esq., and Scott Wilson Williams, Esq., Maher Williams.
The respondent, CIGNA, was represented at the trial level by David Schoolcraft, Esq., Trowbridge, Ide, Mansfield Schoolcraft, but did not appear on appeal.
The respondent, Guaranty Fund Management Associates did not appear at either the trial level or on appeal.
The Second Injury Fund was represented by Brewster Blackall, Esq., Gerard Rucci, Esq. and Taka Iwashita, Esq., Assistant Attorneys General.
This Petition for Review from the April 30, 1991 Finding and Award and May 10, 1991 Corrected Finding and Award of the Commissioner for the Second District was heard March 27, 1992 before a Compensation Review Board panel consisting of the then Commission Chairman, John Arcudi and Commissioners A. Thomas White Jr. and Roberta D’Oyen.
OPINION
JOHN ARCUDI, COMMISSIONER.
Two decisions were issued by the Second District in this matter, the April 30, 1991 Finding and Award of Compensation and the May 20, 1991 Corrected Finding and Award of Compensation. It appears that the only correction contained in the May 20 ruling was the addition of the Second injury Fund as a respondent. Respondents have appealed the commissioner’s ruling.
Claimant suffered a disabling lung disease March 15, 1986, the compensability of which was accepted by the employer, Colchester Egg Farms, Inc. and its then insurer, Kemper Insurance Group, in a Voluntary Agreement approved by the Second District November 25, 1987. The Voluntary Agreement established claimant’s average weekly wage as $735.96 and his basic compensation rate as $397.00 with a dependency allowance for one child of $10.00 per week. In his two 1991 rulings the commissioner found that the employer and its insurer at the time of the 1986 injury were to pay temporary total benefits, temporary partial benefits, a Sec. 31-308(d) permanent partial impairment benefit and some permanent partial wage loss benefits. However he ruled that under Sec. 31-299b the benefits were to be apportioned among all the insurers who insured the employer during claimant’s period of exposure to the work substances causing the injury. He also ruled that liability for payment was to be transferred to the Second Injury Fund after 104 weeks of benefits were paid.
Claimant from 1958 to 1969 was self-employed in the poultry business either part time or full time. During part of that period he was also employed as a machinist for the LaRosa Macaroni Factory in Danielson, CT. From 1969 and through March 16, 1986 he worked as a transportation manager for the respondent Colchester Egg Farms. Claimant’s office location in the garage where eggs were received from various egg farms, processed and placed in trucks for delivery, exposed him to eggs fresh from the farm as well as those which had been processed and washed.
The trier concluded that claimant’s exposure to chicken products between 1959 and 1986 resulted in a hypersensitivity reaction on March 16, 1986 which was “in effect a response to accumulated trauma.” See April 30 and May 10, 1991 Finding and Award, #30. He found claimant was totally disabled from the March 16, 1986 hypersensitivity reaction until June 15, 1988 when maximum medical improvement was reached. At the date of maximum improvement claimant was found to have sustained a ten percent (10%) permanent partial disability to his lungs. It was also found that this permanent partial impairment resulted in a diminution of earning capacity entitling claimant to partial wage loss benefits under Sec. 31-308a.
The commissioner then applied Sec. 31-299b C.G.S. and apportioned the liability over a period of 17 years, thereby excluding the time during which claimant was self-employed in the poultry business. In paragraphs #30 and #31 of his Finding the commissioner held that claimant prior to March 16, 1986 experienced an occupational sensitivity to chicken products and “on that date he suffered a second injury” causing liability for benefits to be transferred to the Second Injury Fund after 104 weeks of disability under Sec. 31-349(a).
The respondent insurers who preceded Kemper Insurance in providing coverage to the employer respondent, Colchester Egg Farms, i.e. Home Insurance, and Zurich Insurance, argue in their appeal that the period over which liability should have been apportioned was twenty-eight years and not seventeen years as found by the commissioner in applying Sec. 31-299b. In other words they contend that part of the causation for the March, 1986 injury occurred during the eleven years of self employment in the poultry business and not exclusively during the seventeen years of employment by Colchester Egg Farms. The Second Injury Fund appeal denies that there was any preexisting permanent impairment which could give rise to a transfer of liability to the Fund under Sec. 31-349(a).
Implicit in the commissioner’s analysis of and interaction between Secs. 31-299b and 31-349(a) was an unstated theory that some permanent impairment had been created by exposure to chicken products during the eleven years of self employment and that the seventeen years of employment with the respondent had so aggravated this preexisting condition to cause the disabling injury of March, 1986. Under Sec. 31-349(a), if there is a preexisting permanent physical impairment which contributes to greater disability from a second injury, then the employer at the time of the second injury is responsible for the entire resultant disability. If the previous impairment had been caused by employment covered under the Act, the employee receives benefits for the entire disability “less any compensation benefits payable or paid with respect to the previous disability.” If the previous impairment was not employment caused, then Sec. 31-349(a) does not provide for any apportionment. Such a situation is different from that presented in Brown v. Bon Dental Lab, 6 Conn. Workers’ Comp. Rev. Op. 132, 594 CRD-7-87 (1989). In that case the employments out of state over which the commission had no in personam jurisdiction intervened between periods of in state employment. Here the periods involved were times of self employment over which the commission did not even have subject matter jurisdiction. Besides the self employment occurred prior to the Colchester Egg Farms employment and did not intervene between periods of covered employment.
Such a theory would justify the commissioner’s conclusion that liability for causation should only be apportioned to the time worked at Colchester Egg Farms. Also, it provides a for liability against the Fund after 104 weeks. However, the commissioner did not articulate such a theory. Instead he “found that claimant’s exposure to chicken products over the period 1959 to 1986 sensitized him so that his hypersensitivity reaction in March 1986 was in effect a response to accumulated trauma” and “prior to March 16, 1986 claimant had previously incurred an occupational sensitivity to chicken products and that on that date he suffered a second injury 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,” Finding, #30 and #31.
The Fund contends that the commissioner’s conclusions are inconsistent. It argues that as the commissioner only apportioned liability to the seventeen year employment period, he in effect found that no physical damage or impairment had occurred before the 1969 employment by the respondent. The argument continues, if all the injury or physical damage occurred during employment with this one employer, and if compensability to be based on repetitive trauma or occupational disease contracted over the period of that employment, how can there be a second injury? Sec. 31-349(a) provides:
If an employee who has previously incurred . . . permanent physical impairment, incurs a second disability . . . 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 . . ., notwithstanding the fact that part of such disability was due to prior . . . injury, disease or congenital causes.
Unless the theory of Fund liability is as stated above, there would seem to be some inconsistencies in the commissioner’s conclusions. Consequently, the matter needs to be remanded for clarification of the facts found and the theory of liability.
As remand is necessary on the Fund’s appeal, of necessity in further proceedings, the issues raised in the insurer respondents’ appeals will need to be considered. In this regard the testimony of Dr. Thomas Godar, M.D., a Hartford lung specialist, who had examined claimant for the respondents, is relevant. His report of September 10, 1986 states, “However, it should be noted that it does require some previous exposure to eventually produce a state of sensitization and that his previous exposure to chicken eggs, chicken excreta, and chicken feathers not only during his period of employment at the Colchester Egg Farm, but also for the period of his employment as a self-employed poultry farmer. Therefore, to a minor extent his previous exposure served as part of the mechanism to eventually sensitize him to the materials on the eggs.” Claimant’s Exhibit A-2 January 23, 1990. Dr. Godar also testified in person, January 23, 1990 TR, pp. 38-43, that in all likelihood the claimant’s sensitization occurred over the entire period of exposure to chicken products, i.e. during both the self employment and the employment segments. He stated that the sensitization process accelerated in the more recent employment and that the process did not become an occupational disease until 1986.
Based on Dr. Godar’s testimony, the commissioner found claimant had incurred a ten percent permanent partial impairment of his lungs and that maximum medical improvement was reached June 15, 1988. He also found the claimant to be totally disabled from March 15, 1986 until June 15, 1988, Finding #29. This is inconsistent with Finding #9 in which it is stated claimant had “current employment from November 12, 1986 until July 18, 1989” and the statement in the second paragraph of #29 that because of the wage differential between the claimant’s present weekly earning capacity and the amount he would have been earning at his pre-injury job, the claimant was entitled to $333.33 per week to compensate him for his partial wage loss.
Also in evidence before the commissioner were the reports of a Norwich internist, Dr. Paul H. Deutsch, M.D., and a second Hartford lung specialist, Dr. Eric H. Gluck, M.D., both of whom had treated claimant. Dr. Gluck stated “sensitization did occur when he himself was a poultry farmer, but that is basically irrelevant, since the fact that one has the potential to develop disease is not as important as the fact that the patient did develop the disease and impairment and required the therapy due to his exposure to those products of chicken at his present employment.” Claimant’s Exhibit D. He also stated, “His case is quite appropriate for the second injury fund, since the prior sensitization might not have resulted in any injury were it not for the re-exposure at Colchester Farms.” Respondent’s Exhibit 1. Finally, Dr. Gluck seemingly differed from Dr. Godar saying “there will be no permanent disability in lung function as a result of this illness. However, he is totally disabled from working with or having any contact with eggs, chickens, or their byproducts.” Respondent’s Exhibit 1.
We have cited the evidence of these two lung physicians to indicate the complexity of the issues which the commissioner needed to determine and which must now be reexamined. In further proceedings the trier must resolve the inconsistency in finding claimant totally disabled during a time that he was actively employed albeit earning less than his previous job paid. Also resolved must be the inconsistency between the finding that sensitization occurred during all the times of exposure to chicken products and the finding that causation for the injury was only ascribed to the 17 years employment at Colchester Farms.
We sustain the respondents’ appeal and remand to the Second District for further proceedings consistent with this opinion.
Commissioner’s A. Thomas White, Jr. and Roberta D’Oyen concur.