CASE NO. 913 CRD-4-89-9Workers’ Compensation Commission
MAY 24, 1991
The claimant was represented by Donald C. Cousins, Esq., Cousins and Johnson. However as the matter on appeal only involved the respondents St. Paul Fire and Marine Insurance and the Second Injury Fund the claimant did not participate in appellate proceedings.
The respondent St. Paul Fire and Marine Insurance Company was represented by David R. Bull, Esq., Chabot Breen.
The Second Injury Fund was represented by Diane Duhamel, Esq. and Michael Belzer, Esq., Assistant Attorneys General.
This Petition for Review from the August 28, 1989 Finding and Award of the Commissioner for the Fourth District was heard November 30, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners George Waldron and Donald Doyle.
OPINION
JOHN ARCUDI, CHAIRMAN.
The Second Injury Fund seeks reversal of the August 28, 1989 order transferring liability to claimant’s myocardial infarction that it cannot be said to be a separate injury and cannot be considered apart from the myocardial infarction.” See Paragraph #14.
What the respondent Second Injury Fund argues essentially is that under Sec. 31-349(a) C.G.S.[1] liability cannot be transferred to the Second Injury Fund absent (1) a finding that claimant had a pre-existing right leg permanent physical impairment which made the resulting leg disability materially and substantially greater, and (2) a finding that respondents had paid 104 weeks of benefits for the leg.
The Fund relies on Jacques v. H. O. Penn Machinery Company, 166 Conn. 352 (1974); and Lovett v. Atlas Truck Leasing, 171 Conn. 577 (1976). The Fund also cites Going v. Cromwell Fire District, 159 Conn. 53, 61 (1970) for the argument Second Injury Fund transfers “should be made only in accordance with express statutory authority.” Justice Bogdanski in Lovett stated:
“The short answer is that the second injury fund may become liable for permanent disability to each part of the body covered by the act, with each disability to be considered a separate injury, notwithstanding the fact that more than one injury may arise out of the same accident.”
Lovett, supra, 585-586
Earlier the decision noted workers’ compensation provides compensation for disabilities, as opposed to injuries. Bogdanski’s language thus underlined a distinction between these two cognate concepts, injury and disability. In a footnote at page 584, the opinion quotes 2 Larson, Workmen’s Compensation Law Sec. 57.10, p. 10-2 to the effect that “the distinctive feature of the compensation system . . . is that its awards . . . are made not for physical injury as such, but for `disability’ produced by such injury.” Lovett, supra at 584, note 3.
Our judicial opinions have struggled with this distinction at least since Miller v. American Steel Wire Co., 90 Conn. 349
(1916). The majority in Miller held that the term “personal injury” in the 1913 statute meant injury by accident. Justice Wheeler’s dissent at page 362 pointedly disagreed. Wheeler stated:
The term “personal injury” as found in the statute is used to indicate “the object of the hurt, rather than the subject of legal injuria.” It does not here designate the Act or omission which harms or damages another, but the harm or damage done to the person.
Miller v. American Steel Wire, supra, 367 (1916).
After Miller the law was amended to conform the Wheeler’s view. The present statute, Sec. 31-275(8), states “Personal Injury,” or injury . . . shall . . . include . . . accidental injury . . . definitely located as to . . . time . . . and . . . place, an injury . . . the direct result of repetitive trauma or repetitive act . . . and occupational disease.
Subsequent to the 1919 occupational disease amendment[2] but before the 1947[3] repetitive trauma addition, Chief Justice Wheeler revisited the same territory:
A compensable personal injury is an abnormal condition of a living body which arises out of and in the course of the employment and produces an incapacity to work for the requisite statutory period. It need not be traced to a definite happening or event. It may be caused by accident or disease, and includes diseases peculiar to an occupation except those of a “contagious, communicable, or mental nature.” The happening or event includes the entire transaction to which the injury is traced, not only the operative causes but their effect on the body of the injured person.
De La Pena v. Jackson Stone Co., 103 Conn. 93, 99-100 (1925).
Thus for Wheeler “the entire transaction” comprehended a process rather than an event. Of necessity, the transaction also comprehended the disability resulting from the process. Wheeler’s “entire transaction” concept is consistent with Larson’s view of the distinctive feature of the compensation system differentiating it from tort liability. Tort liability adjudication tends to concentrate more on fault as an operative cause of injury rather than on the harm or loss produced by the injury.
Lovett holds the language of Sec. 31-349 emphasizes the harm or loss, the disability flowing from the injury. It distinguishes injury, the operative cause, from the effect, permanent disability. In that sense the statute departs from Wheeler’s entire transaction, process rather than single event, concept. It departs also from Sec. 31-275(8) which designates “occupational disease” and “repetitive trauma” as injury. Also, Justice Bogdanski’s language, in the Lovett excerpt we cite above, speaks of “more than one injury” arising from “the same accident”. Those words seem to equate “injury” with “disability” and use the work “accident” to refer to the operative cause as the majority did in miller, supra. Sec. 31-349 itself, except for an early reference to loss or loss of use of the hand, the arm, the foot, the eye from a previous injury, does not mention the disability of specific body parts. It only talks of disability and permanent disability in general. In fact, the statute declares the employee shall receive payment “for the entire amount of disability, including total disability.”
Nonetheless, and possibly because of the Sec. 31-308 schedule for specific loss of separate body parts, Lovett held that the disability alluded to in Sec. 31-349 was the disability of each separate body part. This meant that before transfer of liability for a body part disability, the employer must have paid one hundred for weeks of benefits attributable to that specific body part. This even if one hundred four weeks of benefits had been paid for an eye disability, and the same injury had produced an arm disability, the weeks paid for the eye could not be counted to case transfer of liability for disability of the arm.
Conceivably, Lovett needn’t have reached the result it did. The court could have construed the “entire amount of disability” language of the statute. It could then have employed Wheeler’s “entire transaction” rationale to have ruled that the statute’s disability concept was a monistic rather than a pluralistic one. If the court had so decided, there would be a solid basis for Paragraph #14 of the Fourth District finding, i.e. the “disability of the claimant’s right leg is so inextricably woven into the claimant’s myocardial infarction that it cannot be said to be a separate injury and cannot be considered apart from the myocardial infarction.”
However, the court analyzed the statute differently. As stare decisis binds us to that precedent, Lovett mandates that we sustain the Fund’s appeal.
The appeal is sustained and the Fourth District decision is reversed.
Commissioners George Waldron and Donald Doyle concur.
(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 courts 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, disease or congenital causes. The employer by whom the employee is employed at time of the 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.