Abbott v. General Dynamics Corp.

685 A.2d 694, 43 Conn. App. 737, 1996 Conn. App. LEXIS 572
CourtConnecticut Appellate Court
DecidedDecember 10, 1996
Docket15203
StatusPublished

This text of 685 A.2d 694 (Abbott v. General Dynamics Corp.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abbott v. General Dynamics Corp., 685 A.2d 694, 43 Conn. App. 737, 1996 Conn. App. LEXIS 572 (Colo. Ct. App. 1996).

Opinion

FOTI, J.

The employer, the Electric Boat Division of General Dynamics Corporation (Electric Boat), appeals from the decision of the workers’ compensation review board (board) upholding the decision of the compensation commissioner (commissioner) that Electric Boat could not transfer liability to the second injury fund (fund) until it paid benefits for 208 weeks. The issue on appeal is whether the board improperly applied General Statutes § 31-349 to require the employer to pay more than 104 weeks of temporary total disability benefits before transferring liability to the fund.

The commissioner found the following facts. The plaintiff, Michael Abbott,1 had a history of injuries to his back and neck. On August 3,1990, he again sustained injuries to his neck and back from a single accident. After numerous consultations and treatments, the plaintiff underwent cervical surgery. As a result of the surgery, the plaintiff died on November 5, 1992. The plaintiff had received total disability benefits from the date of injury until his death. He is survived by a dependent child, Dustee L. Abbott, whose date of birth is [739]*739August 21, 1975. After her father’s death, she received dependent’s benefits pursuant to General Statutes § 31-306.2

The commissioner ruled that benefit liability was transferable to the fund pursuant to General Statutes § 31-349.3 Because there were two separate preexisting injuries that were aggravated by the single accident, however, the commissioner concluded that Electric Boat could not transfer benefit liability until it paid benefits for 208 weeks.

Electric Boat petitioned for review of the commissioner’s decision to the board. The board upheld the commissioner’s decision. It ruled that “[wjhere a claimant has suffered more than one compensable injury from an accident, and those injuries are not causally related to each other . . . [the term] ‘disability’ as used in § 31-349 (a) refers to each individual injury for the purpose of calculating the 104 week period.”

In appealing the board’s decision to this court, Electric Boat claims that the board improperly interpreted § 31-349 and the Supreme Court decisions of Lovett v. Atlas Truck Leasing, 171 Conn. 577, 370 A.2d 1061 (1976), and Hernandez v. Gerber Group, 222 Conn. 78, [740]*740608 A.2d 87 (1992), in determining that it could not transfer benefit liability to the fund after 104 weeks, but instead had to pay benefits for 208 weeks before the fund would become responsible.

In evaluating the board’s decision, we recognize that “ ‘[t]he power and duty of determining the facts [rest] on the commissioner, the trier of facts. . . .The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.’. . . Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988).” Hernandez v. Gerber Group, supra, 222 Conn. 81-82 n.3. “The board does not retry the facts and ... is bound by the commissioner’s findings.” Rowe v. Plastic Design, Inc., 37 Conn. App. 131, 135, 655 A.2d 270 (1995).

“Under § 31-349, the Connecticut second injury fund statute, [i]f an employee who has ... [a] 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, the employer’s obligation is limited to the first 104 weeks of the employee’s disability. Thereafter, liability for all compensation for the injury shifts to the [f]und.” (Internal quotation marks omitted.) Hernandez v. Gerber Group, supra, 222 Conn. 82. “This allocation of liability was intended to charge the employer only with an approximation of those benefits attributable solely to the second, employment related injury. By charging the employer with a predetermined period of 104 weeks of liability, the legislature sought to eliminate the administrative problems inherent in a case-by-case apportionment process. [2] A. Larson, [741]*741[Workmen’s Compensation Law (1994)] § 59.34 (b), p. 10-553." Davis v. Norwich, 232 Conn. 311, 321, 654 A.2d 1221 (1995). “[T]he legislature established the [second injuiy] fund, primarily to encourage the employment of persons with an existing disability and, at the same time, to provide adequate workers’ compensation benefits for them.” Id., 320.

The board relied on Lovett v. Atlas Truck Leasing, supra, 171 Conn. 577, in affirming the commissioner’s decision that each disability is a separate injury pursuant to § 31-349. In that case, our Supreme Court stated 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.” Id., 585-86. In Lovett, the plaintiff suffered numerous injuries, including damage to both eyes, when a tire exploded. Id., 579. The plaintiff had a preexisting condition in each eye known as an astigmatism.4 Id. After the explosion, the plaintiff had lost 40 percent of the vision in his right eye. Id., 580. The commissioner found that the right eye suffered permanent partial impairment, but that the fund did not have present liability because the compensation award was less than 104 weeks. Id., 580 n.2. The plaintiff completely lost vision in his left eye as a result of the explosion. Id. The commissioner did not allow transfer of the benefits for the injury to the left eye because the disability in that eye would have been the same after the explosion regardless of whether the plaintiff had the preexisting astigmatism. Id., 581.

Electric Boat argues that Hernandez v. Gerber Group, supra, 222 Conn. 78, rejects the board’s interpre[742]*742tation that 104 weeks must be paid on each body part before liability can be transferred under § 31-349. In Hernandez, the plaintiff had a preexisting heart condition. He suffered a heart attack in the course of his employment. Id., 80. During the course of treatment, the plaintiff suffered permanent partial disability of his leg. Id., 81. The commissioner found that there was a direct causal relationship between the preexisting heart condition and a later injury to the leg. The commissioner distinguished the facts from Lovett v. Atlas Truck Leasing, supra, 171 Conn. 577, because the commissioner found the causal connection between the preexisting condition and the subsequent injury that was lacking in Lovett. Hernandez v. Gerber Group, supra, 85-86. Our Supreme Court concluded that the commissioner properly transferred benefit payments to the fund after 104 weeks. Id., 81.

Electric Boat challenges the commissioner’s finding that there were two separate injuries.

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Related

Lovett v. Atlas Truck Leasing
370 A.2d 1061 (Supreme Court of Connecticut, 1976)
Fair v. People's Savings Bank
542 A.2d 1118 (Supreme Court of Connecticut, 1988)
Hernandez v. Gerber Group
608 A.2d 87 (Supreme Court of Connecticut, 1992)
Davis v. City of Norwich
654 A.2d 1221 (Supreme Court of Connecticut, 1995)
Rowe v. Plastic Design, Inc.
655 A.2d 270 (Connecticut Appellate Court, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
685 A.2d 694, 43 Conn. App. 737, 1996 Conn. App. LEXIS 572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abbott-v-general-dynamics-corp-connappct-1996.