§ 31-349 — Compensation for second disability.

Connecticut § 31-349

• Jurisdiction: Connecticut
• Title 31: Labor
• Ch. 568: Workers' Compensation Act

Text

The fact that an employee has suffered a previous disability, shall not preclude him from compensation for a second injury, nor preclude compensation for death resulting from the second injury. If an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone, he shall receive compensation for (1) the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability, and (2) necessary medical care, as provided in this chapter, notwithstanding the fact that part of the disability was due to a previous disability. For purposes of this section, “compensation payable or paid with respect to the previous disability” includes compensation payable or paid pursuant to the provisions of this chapter, as well as any other compensation payable or paid in connection with the previous disability, regardless of the source of such compensation.

Legislative History

(1949 Rev., S. 7489; 1949, 1951, 1953, S. 3053d; September, 1957, P.A. 13, S. 6; 1958 Rev., S. 31-216; 1959, P.A. 580, S. 11; 1961, P.A. 491, S. 75; 1967, P.A. 842, S. 20; 1969, P.A. 696, S. 14; 1971, P.A. 447, S. 1; P.A. 79-376, S. 80; P.A. 81-464, S. 2; P.A. 82-398, S. 6; 82-472, S. 109, 183; P.A. 86-31; P.A. 88-40, S. 1, 2; 88-47, S. 1; P.A. 89-66, S. 1, 2; P.A. 90-116, S. 7; 90-327, S. 2, 3; P.A. 91-32, S. 35, 41; 91-339, S. 36, 55; P.A. 93-228, S. 24, 35; 93-429, S. 2, 7; P.A. 95-277, S. 3, 19; P.A. 96-242, S. 1, 10; P.A. 21-18, S. 5.) History: 1959 act simplified provisions by deleting references to specific loss of or damage to body organs, allowed compensation for injuries which result in permanent partial incapacity greater than would have resulted if person did not have preexisting incapacity, specified amount of additional compensation as “the same amount as the weekly compensation paid by his employer”, changed minimum payment for total incapacity from $15 to $20 and maximum payment from $45 to maximum rate in Sec. 31-309 and replaced 780-week payment limit with unspecified “period of incapacity”; 1961 act entirely replaced previous provisions and was entirely replaced by provisions of 1967 act; 1969 act deleted requirement that insurer or employer furnish custodian with a copy of the agreement or award and deleted provision which stated that fund was to be used to pay for injuries covered by Sec. 31-310; 1971 act clarified employer's responsibilities to notify custodian of agreement and award; P.A. 79-376 substituted executions of acknowledgment of physical defect for executions of waiver and reduced compensation by amount of “any compensation benefits payable or paid with respect to the previous disability”; P.A. 81-464 permitted the use of the second injury fund for payment of insurance coverage for totally incapacitated recipients of workers' compensation after 104 weeks of benefits and provided for notification of fund custodian; P.A. 82-398 replaced the reference to Sec. 31-51h with a reference to Sec. 31-284b, as Sec. 31-51h was repealed by the act and deleted obsolete provision requiring employer to notify custodian of second injury fund within 60 days after October 1, 1981, that coverage is required for persons who have received payments for more than 104 weeks as of that date; P.A. 82-472 made a technical correction; P.A. 86-31 divided section into Subsecs. and clarified the notice requirements for payment by the second injury fund of insurance coverage costs for totally incapacitated workers' compensation recipients; P.A. 88-40 amended Subsec. (b) to provide that the cost of insurance for totally incapacitated individuals shall be paid to the employer as reimbursement and the employer shall furnish all medical information in support of the claim as to liability of the second injury fund as requested; P.A. 88-47 added Subsec. (c) re payment of the cost of accident and health insurance coverage by the second injury fund for certain employees receiving workers' compensation payments who are affected by a plant move or shutdown; P.A. 89-66 specified that the provisions of Subsec. (c) apply to employers who shut down or relocate on or after January 1, 1985, specified that the fund's liability is effective as of the date it receives notice and provided that the fund shall be liable for the cost of equivalent insurance; P.A. 90-116 amended Subsec. (c) to provide that notice shall be by certified mail; P.A. 90-327 added Subsec. (d) concerning insurance coverage for employees injured on or after January 1, 1980, but before January 1, 1982; P.A. 91-32 made technical changes and divided existing Subsec. (a) into Subsecs. (a) to (d), inclusive, relettering former Subsecs. (b) to (d), inclusive, accordingly; P.A. 91-339 amended Subsec. (f)(2) to provide that the fund's liability shall begin 15 days after notice to the custodian and by adding provisions re determination of ineligibility for costs of coverage; P.A. 93-228 amended Subsec. (a) to define “compensation payable or paid with respect to the previous disability” for purposes of the subsection, effective July 1, 1993; P.A. 93-429 amended Subsecs. (b) and (c) to modify the notice and filing requirements imposed on employers or their insurance carriers in order to transfer liability for an injury or death to the second injury fund, effective July 1, 1993; P.A. 95-277 amended Subsec. (b) to replace previous provisions re transfer of claims to the Second Injury Fund, to substitute references to “insurer” for “insurance carrier”, to detail notification procedure for the rejection of a claim and to specify that improper submittal of claims within specific time period could result in a prejudice of claim, amended Subsec. (c) to replace previous provisions re transfer of liability for death benefits with new provisions, deleted Subsecs. (d) to (g), inclusive, added a new Subsec. (d) to close the Second Injury Fund for injuries occurring on or after July 1, 1995, and new Subsec. (e) requiring an employer or insurer to notify the custodian of the fund prior to October 1, 1995, of its intention to pursue a transfer of claim to the Second Injury Fund, effective July 1, 1995; P.A. 96-242 added Subsec. (f) concerning the eligibility of claims for transfer to the Second Injury Fund, effective June 6, 1996; P.A. 21-18 deleted Subsec. (a) designator, deleted former Subsecs. (b) to (f) and made a conforming change. Cited. 150 C. 156. “Second Injury Fund”, legislative history and purpose discussed; phrase “permanent physical impairment” construed to include decedent's heart disease, although that disease had neither manifested itself so as to be a hindrance to obtaining employment nor come to the attention of the employer. 166 C. 352. Second Injury Fund assumes responsibility for compensation and medical treatment only when preexisting impairment contributes materially and substantially to permanent disability. 171 C. 577. Cited. 174 C. 181; 218 C. 9; 222 C. 78; 223 C. 336. Phrase “one-hundred-four-week period” refers to time period of claimant's disability. 224 C. 382. Cited. 226 C. 569; 227 C. 333. Interpretation of “compensation” discussed. 231 C. 287. Cited. Id., 469; 232 C. 311; 233 C. 14; Id., 243; 235 C. 778; Id., 790; 237 C. 259; Id., 490; 241 C. 282. Limitations provision in Subsec. (b) and re-notification provision of Subsec. (e) do not violate contract or due process clause of U.S. Constitution because premise that second injury fund had contractual relationship with employees, employers and insurers is unsustainable. 248 C. 466. Section requires employer at time of claimant's second injury to accept liability for all compensation benefits due claimant for a period of 104 weeks, and thereafter, requires fund to accept liability for all benefits due claimant for the combined injuries. Id., 635. Legislature intended amendment to section, contained in P.A. 95-277, to remove fund's obligation to reimburse employers on or after July 1, 1995. 250 C. 753. Cited. 6 CA 45. Notification provision relating to a fatality is mandatory. 15 CA 625, 627. Cited. 27 CA 699; 37 CA 131; 41 CA 231; 42 CA 147; 43 CA 732; Id., 737; 45 CA 324; Id., 448; 46 CA 346. Where employee has suffered two separate injuries that result in total disability, fund is liable only for the portion of disability attributable to the second injury. 48 CA 474. “Disability”, as used in section, connotes medical impairment. 76 CA 563. Employee's permanent disability met standard in section, and therefore may not be apportioned under statutory gap remedy set forth in 288 C. 303. 146 CA 154. Cited. 37 CS 742. Subsec. (a): “Compensation benefits” refers only to compensation under act. 223 C. 336. For purposes of calculating 104-week period in which notice must be given, “disability” refers to claimant's degree of medical impairment, rather than inability to work or loss of earning capacity. 243 C. 513. Subsec. provides compensation for any injury that combines with a preexisting nonoccupational or noncompensable disability to materially increase claimant's overall impairment. 315 C. 543. Disability refers to physical impairment, not capacity for employment. 59 CA 565. Subsec. (b): Cited. 38 CA 175. Employer's insurer was excused from complying with statutory notice requirements for transfer of liability to Second Injury Fund where evidence showed that employer was defunct and that insurer was unable to obtain wage information necessary for strict compliance with statute. 52 CA 819. Employer and insurance company did not give timely notice of their intent to transfer liability to the fund because period of plaintiff's disability began on the day he was injured rather than on the day he sought medical care for the injuries or the day he underwent surgeries for the injuries. 67 CA 385. Appeal dismissed as moot; notice filed was timely but not proper. 69 CA 385. A person can be disabled for purposes of section even though such person can carry on all aspects of the employment. 73 CA 523. Subsec. (d): With passage of section, legislature rebutted any presumption in favor of prospective only application of Sec. 31-349c. 241 C. 282. Apportionment is not an available form of relief for second injury employer or its insurer under Subsec. 263 C. 279. Subsec. (e): Re-notification clause in Subsec. does not violate contract or due process clause of U.S. Constitution because no showing under circumstances of case that legislature, in establishing Second Injury Fund, entered into a contract with employees, employers and insurers. 248 C. 457. Renotice letter was timely where town sent it by certified mail on September 28, 1995 and fund received it on October 2, 1995. 67 CA 276.