CASE NO. 4271 CRB-3-00-7 CRISCIO v. STATE OF CONNECTICUT

 COMPENSATION REVIEW BOARD WORKERS’ COMPENSATION

JUNE 1, 2001 LOUIS CRISCIO CLAIMANT-APPELLEE v.

STATE OF CONNECTICUT/SOUTHERN CONNECTICUT STATE UNIV. EMPLOYER

APPEARANCES:

The Claimant was represented by Lawrence F. Morizio, Esq., Kristen Sotnik Falls, Esq., and Neil Ambrose, Esq., Letizia, Ambrose and Cohen, One Church Street, New Haven, CT 06510.

The respondent was represented by Michelle Truglia, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the July 11, 2000 Finding and Award of the Commissioner acting for the Third District was heard January 26, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent-employer has appealed from the July 11, 2000 Finding and Award of the Commissioner acting for the Third District. In that Finding and Award the trial commissioner concluded that the respondent employer was wholly liable for the claimant’s injury and the aggravation of claimant’s avascular hip necrosis was not subject to the apportionment provisions contained in § 31-275(1)(D) C.G.S.

The pertinent facts giving rise to this appeal are as follows: On October 21, 1996 the claimant while working as an electrician for the respondent, slipped off a ladder. Claimant struck his left heel and thereby, injured his left foot. As a result of that injury the claimant began to limp and experienced pain in his right groin area. The respondent accepted the claimant’s left foot injury stemming from the October 21, 1996 incident.

On November 4, 1997 the claimant suffered a strain to his right groin and right quadriceps. The respondent accepted these injuries as well. On January 7, 1998 the claimant underwent surgery to his left foot, for which the respondent accepted liability.

Following his foot surgery the claimant was referred to Dr. John Aversa, an orthopedic surgeon for complaints relating to his hip. Dr. Aversa, after conducting diagnostic studies, concluded that the claimant suffered from avascular hip necrosis. Dr. Aversa opined that claimant’s avascular hip necrosis was not caused by the October 1996 and November 1997 work related injuries, but the claimant’s altered gait resulting from these injuries aggravated his hip condition.

Subsequently, Dr. Steven Schutzer, also an Orthopedic Surgeon, conducted an independent medical examination. Dr. Schutzer concluded that the claimant’s hip problems were “causally related to a pre-existing idiopathic right hip avascular necrosis which became symptomatic following claimant’s first work injury and worse after the second one.” See Finding and Award ¶8.

Thereafter, Dr. Schutzer opined that fifty per cent of claimant’s hip disability was related to the two work-related events; October 1996 and November 1997 respectively. The remaining fifty per cent of his disability was related to claimant’s avascular hip necrosis. Dr. Schutzer additionally concluded that the claimant had a forty per cent permanent partial disability to his right leg.

The respondent claims that the claimant’s avascular hip necrosis is a pre-existing disease and thus, under a plain reading of § 31-275(1)(D) C.G.S. it is only liable for fifty per cent of the compensation due the claimant. Sec. 31-275(1)(D) C.G.S. provides in pertinent part:

“Arising out of and in the course of his employment” means an accidental injury happening to an employee or an occupational disease of an employee originating while he has been engaged in the line of his duty in the business or affairs of the employer upon the employer’s premises, or while engaged elsewhere upon the employer’s business or affairs by the direction, express or implied, of the employer, provided. . . (D) for aggravation of a preexisting disease, compensation shall be allowed only for that proportion of the disability or death due to the aggravation of the preexisting disease as may be reasonably attributed to the injury upon which the claim is based. . . . (emphasis ours).

In his July 11, 2000 Finding and Award the trial commissioner concluded that the respondent failed to prove that the claimant’s avascular hip necrosis was an occupational disease. Thus, on the basis of the Supreme Court’s long standing precedent, Cashman v. McTernan School, 130 Conn. 401 (1943) the trial commissioner held the claimant was entitled to payment in full for all benefits due under the Workers’ Compensation act, and the respondent was not entitled to any allowance for apportionment as permitted by § 31-275(1)(D) C.G.S.

The sole issue presented for review is whether § 31-275(1)(D) C.G.S. should be read so as to limit apportionment to pre-existing occupational diseases as our Supreme Court held in Cashman, supra. In essence, the respondent-appellant seeks to overturn the Supreme Court’s holding in Cashman. The respondent argues that § 31-275(1)(D) C.G.S. should be construed in conformance with a plain reading of the statute’s language. The respondent argues that the Cashman’s court’s holding that the statute’s term “pre-existing disease” should be construed as “pre-existing occupational disease” should be revisited and ultimately, overturned.

We believe we fully comprehend that which the appellant seeks to effect, i.e., the reversal of the Supreme Court’s long standing construction of the language contained in § 31-275(1)(D) C.G.S. However, as a court of limited jurisdiction we are bound by the precedent set out by the court in Cashman. Further this tribunal has considered this issue in prior decisions in which the application of § 31-275(1)(D) C.G.S. was at issue. See e.g.; Prisco v. North & Judd, 10 Conn. Workers’ Comp. Rev. Op. 154, 1190 CRD-8-91-3 (June 30, 1992), Keegan v. Aetna Life & Casualty, 13 Conn. Workers’ Comp. Rev. Op. 340, 1793 CRB-1-93-8 (April 27, 1995), aff’d, 42 Conn. App. 803 (1996). As our Supreme Court noted in George v. Ericson, 250 Conn. 312 (1999):

“[t]he doctrine of stare decisis counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. . . . Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 196, 676 A.2d 831 (1996). Stare decisis is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that the law is relatively unchanging, it saves resources and it promotes judicial efficiency. Conway v. Wilton, 238 Conn. 653, 658-59, 680 A.2d 242 (1996). It is the most important application of a theory of decisionmaking consistency in our legal culture and it is an obvious manifestation of the notion that decisionmaking consistency itself has normative value. . . . Id., 658.” (Internal quotation marks omitted.) Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 296, 695 A.2d 1051 (1997).

George, supra, 318.

Thus, applying the principles of stare decisis we have not been provided with the compelling necessity which would be required for us to reverse our own prior rulings on this issue.

Additionally, as we noted, we are bound by the ruling of our Supreme Court on settled points of law. It is a fundamental tenet of our system of jurisprudence that courts of intermediate appeals are bound by the rulings and decisions of courts of higher authority. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184 (1996). Martin v. Plainville, 40 Conn. App. 179, 182, (1996) aff’d, 240 Conn. 105 (1997). “This principle is inherent in a hierarchical judicial system.” Jolly, supra,195.

Whether it is now time for our state’s highest court to revisit its holding in Cashman, supra, is a matter only that court can answer. However, before we conclude our discussion and holding in this matter, we believe there are several points worth noting. First, we note that the respondent-appellant has sought review of the question presented with full regard for, the constraints imposed on this tribunal and the trial commissioner. The respondent-appellant fully acknowledges the existence of binding case law precedent.¹

The second point for an appellate court’s consideration is the prior history of the Supreme Court’s rulings which culminated in the Cashman’s court’s construction of the statute. The Cashman’s court’s ruling specifically held that the term “pre-existing disease” should be construed as “pre-existing occupational disease.” In essence, the court relied on the ratio decidendi of the court’s earlier opinion in Bongialatte v. Lines Co., 97 Conn. 548 (1922) and overruled its decision Henry v. Keegan, 121 Conn.71 (1936). In Henry, the court construed that statute in the manner suggested by the respondent-appellant here.

In Bongialatte, the court held that the words ‘pre-existing disease’ contained in the statute should be construed to include only occupational disease. The Cashman court referred to Bongialatte’s review of the statute’s history and policy underpinning the Act.

This claim [that the statute’s language should not be restricted to pre-existing occupational diseases] is based upon the portion of § 5341² of the General Statutes as amended by § 1 of Chapter 142 of the Public Acts of 1919, reading as follows: “If an injury arises out of and in the course of the employment it shall be no bar to a claim for compensation that it cannot be traced to a definite occurrence which can be located in point of time and place. Any disease, which is caused by an injury arising out of and in the course of the employment, shall be deemed to be a natural consequence of such injury, but in any case of aggravation of a disease existing prior to such injury, compensation shall be allowed only for such proportion of the disability due to the aggravation of such prior disease as may reasonably be attributed to the injury.” This claim presents for decision the question whether the legislature, by its amendment of § 5341 in 1919, intended to completely overthrow the then established construction of our Compensation Act as set forth in Hartz v. Hartford Faience Co., 90 Conn. 539, 543, 97 A. 1020, and Saddlemire v. American Bridge Co., 94 Conn. 618, 110 A. 63, to the effect that “compensation is not made to depend upon the condition of health of the employee, or his freedom from liability to injury through constitutional weakness or latent tendency. . . ‘It is the hazard of the employment acting upon the particular employee in his condition of health and not what that hazard would be if acting upon a healthy employee or upon an average employee.’” Our construction of the Compensation Act, as stated in these cases, has been the practically universal construction of similar Acts in other jurisdictions. It is not too much to say that a construction of the amended Act, as claimed by the defendants, if adopted, would deprive the entire Act of a large part of its remedial effect, and involve its administration in great uncertainty, confusion and indefiniteness.

Bongialatte supra, 551-52 (footnote ours).

It is worth noting that the Cashman court considered the application of this liability apportionment statute in a factual framework analogous to the one at hand. There also the court was presented with an injury claim for avascular hip necrosis. The Cashman court held,

The existence of this unquestioned fundamental principle, providing the practical and easily applied rule for fixing the scope of compensation for injury to an employee which it did, afforded strong reason for the construction of the amendment which worked a minimum encroachment upon that rule. In view of this and of the liberal construction to be accorded the Workmen’s Compensation Act, we are satisfied that the conclusion in the Bongialatte case as thus stated [Bongialatte, supra, 552](p. 552) was correct: The subsequent legislative and judicial history of this provision fortifies our conclusion. Although it was twice re-enacted after that decision (Public Acts, 1927, Chap. 307, 7 and General Statutes, 5223), the legislature made no change indicative of an intent to override the construction so accorded. Our decisions up to that in the Henry case show no departure from the rule of the Bongialatte case.

Cashman, supra, 407-08.

We note that as the Cashman court’s ruling and construction of the language now contained in § 31-275(1)(D) C.G.S. has remained unvaried by the legislature, except in the most technical sense,³ for some six decades. Accordingly, we cannot envision a reason why the court’s future consideration of this matter would choose to deviate from its prior holding in Cashman. See also, Epps v. Biersdorf, 41 Conn. App. 430 (1996).

We anticipate that the respondent-appellant may argue that the harsh economic effects on employers resulting from the Cashman ruling were tempered by the legislature’s enactment of the Second Injury Fund and its apportionment scheme for previous disabilities. We would expect that the respondent-appellant’s argument might suggest that the termination of the Second Injury Fund’s liability for previous disabilities as repealed by the legislature in Public Act 95-277 would now visit the calamitous economic consequences of the Cashman court’s ruling on employers.

Perhaps, the respondent-appellant’s concerns as to the consequences of the legislature’s enactment of Public Act 95-277, and its curtailment of the Second Injury Fund’s liability is justified. But just as the Cashman court reminded itself of the broad humanitarian purpose to be effected by the Workers’ Compensation Act, we believe a future court is obligated to be similarly mindful especially when one considers that the Cashman court’s ruling preceded the legislature’s enactment of the Second Injury Fund’s liability assumption for pre-existing conditions. See Jacques v. H.O. Penn Machinery Co., 166 Conn. 352, 357 (1974)(court reviews legislative history of the Second Injury Fund).⁴

We believe the court’s ruling in Cashman establishes the ground upon which much of Workers’ Compensation law has settled and has stood the tests of time. We, therefore, dismiss the respondent-appellant’s appeal.

Commissioners George A. Waldron and Ernie R. Walker concur.

¹ At one point in these proceedings the respondent-appellant requested that the issue presented for review be reserved by this tribunal to the Appellate Court pursuant to § 31-324. We have declined this opportunity to frame the issue presented for review in the form of a question reserved for consideration by the Appellate Court. We decline to exercise our discretion to reserve such questions because we do not believe that the issue before us today satisfies the statutory criteria set out in § 31-324. Sec. 31-324 provides in pertinent part:

When, in any case arising under the provisions of this chapter, the Compensation Review Board is of the opinion that the decision involves principles of law which are not free from reasonable doubt and which public interest requires shall be determined by the Appellate Court, in order that a definite rule be established applicable to future cases, said Compensation Review Board may, on its own motion and without any agreement or act of the parties or their counsel, reserve such case for the opinion of the Appellate Court.(emphasis ours).

Given that the appellant seeks to overturn long established precedent directly on point to the issue at hand, we cannot say that the instant matter involves a principle of law which is not free from reasonable doubt. Quite the contrary exists here. The instant matter presents an issue where the application of existing precedent compels a certain result. We therefore have elected not to exercise our powers under § 31-324. BACK TO TEXT

² Earlier codification of 31-275(1)(D). BACK TO TEXT

³ See Public Act 91-32 § 1. BACK TO TEXT

⁴ To remedy that situation this state adopted second injury fund legislation in 1945. Public Acts 1945, No. 188. The present statutory provisions, General Statutes 31-349 to 31-355, are the product of considerable evolution. Originally, only employees who had previously incurred “permanent partial incapacity by means of the total loss of, or the total loss of use of, one hand, one arm, one foot, one leg or one eye, or the reduction of sight in one eye to one-tenth or less of normal vision with glasses,” had recourse to the second injury fund. Public Acts 1945, No. 188. In 1959 the General Assembly deleted all reference to specific disabilities, so that the second injury fund statute applied to any employee with a previously incurred “permanent partial incapacity.” Public Acts 1959, No. 580.

Jacques, supra, 357-58. BACK TO TEXT