Gill v. Brescome Barton, Inc. ( 2015 )

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RONALD F. GILL, JR. v. BRESCOME
BARTON, INC., ET AL.
(SC 19201)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued December 10, 2014—officially released May 26, 2015
Marian H. Yun, for the appellant (defendant Liberty
Mutual Insurance Group).
Michael J. Finn, with whom were Ryan D. Ellard,
Shanique D. Fenlator and, on the brief, Brittany T.
DeLieto, for the appellee (defendant Chubb & Son).
Opinion
ROBINSON, J. The principal issue in this certified
appeal is whether, under the unique factual circum-
stances of this case, a workers’ compensation commis-
sioner had the authority to require one insurance carrier
to reimburse another insurance carrier for one half of
a claimant’s temporary total disability payments—given
that the commissioner was authorized to impose the
full amount of such payments on either insurance car-
rier under a literal reading of the relapse statute, Gen-
eral Statutes § 31-307b.1 The defendant Liberty Mutual
Insurance Group (Liberty Mutual) appeals, upon our
grant of its petition for certification,2 from the judgment
of the Appellate Court affirming the decision of the
Workers’ Compensation Review Board (board), which
had affirmed the corrected finding and award of the
Workers’ Compensation Commissioner for the Eighth
District (commissioner) requiring Liberty Mutual to
reimburse the defendant Chubb & Son (Chubb) for 50
percent of the temporary total disability payments due
to the plaintiff, Ronald F. Gill, Jr. (claimant), after his
bilateral knee replacement surgery.3 Gill v. Brescome
Barton, Inc., 142 Conn. App. 279, 281–82, 68 A.3d 88
(2013). On appeal, Liberty Mutual claims, inter alia, that
the commissioner lacked the authority to order the
reimbursement. We disagree and, accordingly, affirm
the judgment of the Appellate Court.
The record reveals the following undisputed facts
and procedural history. The claimant suffered a com-
pensable work-related injury to his left knee on July 2,
1997. At the time of the left knee injury, Liberty Mutual
was the workers’ compensation insurance carrier for
the claimant’s employer, the named defendant, Bres-
come Barton, Inc. (employer). Subsequently, the claim-
ant suffered a compensable work-related injury to his
right knee on April 3, 2002. At the time of the right knee
injury, Chubb was the workers’ compensation insur-
ance carrier for the employer. These knee injuries were
completely unrelated to each other. Liberty Mutual has
not disputed its responsibility for the left knee injury
and Chubb has not disputed its responsibility for the
right knee injury.
At the recommendation of his physician, the claimant
was scheduled to have bilateral knee replacement sur-
gery on February 24, 2011. Liberty Mutual and Chubb
agreed that this type of surgery was medically necessary
and, moreover, that it was reasonable for both knees
to be operated on at the same time. On March 10, 2010,
the insurance carriers4 entered into a voluntary
agreement stating that Chubb would administer the pay-
ment for the surgery and, in turn, that Liberty Mutual
would reimburse Chubb for 50 percent of the surgery
costs and incidental expenses.
Although the insurance carriers agreed about paying
for the claimant’s surgery, they were unable to reach
a similar agreement about paying for the claimant’s
temporary total disability benefits, to which he would
be entitled while he recuperated. Initially, Liberty
Mutual offered to reimburse Chubb for these benefits
at less than one half of the claimant’s relapse rate—
but Chubb did not accept. Consequently, the insurance
carriers proceeded to a formal hearing to resolve their
dispute before the commissioner on January 10, 2011.
At the formal hearing, the commissioner heard argu-
ments from the insurance carriers regarding the amount
of the claimant’s temporary total disability benefits that
each should be required to pay. Chubb noted, and Lib-
erty Mutual did not dispute, that the knee injuries were
‘‘separate and distinct,’’ and that undergoing replace-
ment surgery for either knee would leave the claimant
temporarily totally disabled. The commissioner
informed the claimant, who was present at the formal
hearing, that he would have his upcoming surgery and
be paid temporary total disability benefits at his relapse
rate. The commissioner added that Chubb would admin-
ister the claim for benefits and, further, that his determi-
nation would effectively be limited to the amount, if
any, that Liberty Mutual should reimburse Chubb for
the temporary total disability benefits.
The commissioner issued a corrected finding and
award on June 7, 2011.5 The listed issue for determina-
tion was: ‘‘What amount are [Liberty Mutual and Chubb]
obligated to pay the claimant for periods of total and
temporary partial disability following bilateral knee
replacement where each surgery concurrently disables
the claimant?’’ The commissioner found that the claim-
ant ‘‘had reached maximum medical improvement for
both injuries and now needs a total knee replacement
for both knees.’’ The commissioner added: ‘‘This is a
unique situation where neither knee injury affects the
other injury. The combination of the two surgeries does
not result in the claimant being totally disabled—either
knee replacement would totally disable the claimant
following surgery. The two injuries are separate and
distinct injuries that do not in concert totally disable
the claimant. Instead, they are concurrent to each other.
The decision to undergo both knee replacements simul-
taneously benefits the claimant in that he has only one
period of recovery and also benefits both insurance
carriers in that they are able to split many of the surgical
and postsurgical costs that would be duplicative had
the claimant opted for two separate surgeries.’’ Ulti-
mately, the commissioner determined that the relapse
statute, § 31-307b, applied to either knee injury and,
therefore, the claimant was entitled to receive tempo-
rary total disability payments at his relapse rate of
$692.75 per week.6 The commissioner ordered Liberty
Mutual to reimburse Chubb for 50 percent of such
payments.
Liberty Mutual appealed from the corrected finding
and award to the board, primarily claiming that the
commissioner had failed to follow precedent precluding
apportionment in circumstances where a claimant’s
separate and distinct injuries combine together and
cause disability.7 Chubb, for its part, argued that the
commissioner’s corrected finding and award was sup-
ported by precedent permitting apportionment in cir-
cumstances where a claimant’s single preexisting injury
is aggravated over time and causes disability.8 On June
1, 2012, the board affirmed the commissioner’s cor-
rected finding and award, concluding that none of the
apportionment precedent cited by the parties governed
the sui generis factual circumstances of the case. The
board then determined that the commissioner had prop-
erly exercised the authority granted to him under Gen-
eral Statutes § 31-2789 by equitably resolving the
insurance carriers’ dispute over the temporary total
disability payments that were due to the claimant under
the relapse statute, § 31-307b. The board opined that
the commissioner could not have lawfully required both
of the insurance carriers to remit the total amount of
temporary total disability payments, as doing so would
have violated Connecticut’s well established prohibi-
tion on double recoveries. Moreover, the board
observed that, if one knee were to recover before the
other and was no longer disabling to the claimant, the
responsible insurance carrier could file a motion to
modify the award, therein asserting that the changed
circumstances should require the other insurance car-
rier to bear the payments in full going forward. The
board, however, also reasoned that the commissioner’s
corrected finding and award was supported implicitly
by the insurance carriers’ March 10, 2010 agreement,
stating: ‘‘The agreement in question does not define the
term ‘surgical costs’ or ‘incidental expenses.’ We believe
in this instance ‘incidental expenses’ would include the
unavoidable expense of . . . benefits due [to] the
claimant postsurgery.’’
Liberty Mutual appealed from the board’s decision
to the Appellate Court, claiming, inter alia, that the
board failed to apply controlling apportionment prece-
dent and improperly analyzed the March 10, 2010
agreement. The Appellate Court disagreed as to the first
claim, concluding that none of the precedent cited by
Liberty Mutual was ‘‘on point with the facts presented
here.’’ Gill v. Brescome Barton, Inc., supra, 142 Conn.
App. 288. As for the second claim, the Appellate Court
concluded that, even if the board had improperly
reached a conclusion about the intended meaning of
‘‘incidental expenses’’ under the March 10, 2010
agreement, any such error was harmless because ‘‘[t]he
findings of the commissioner are sufficient to support
his award, which is grounded in the remedial purpose
of the [Workers’ Compensation Act, General Statutes
§ 31-275 et seq.].’’ Id., 292. Specifically, the Appellate
Court noted that it would be absurd to ‘‘require the
[claimant] to undergo two surgeries at different times
. . . .’’ Id., 295. The Appellate Court further cited § 31-
278 as a source of authority for the commissioner to
resolve statutory lacunae in a remedial manner. Id., 299.
Accordingly, the Appellate Court unanimously affirmed
the decision of the board. Id., 300. This certified appeal
followed. See footnote 2 of this opinion.
On appeal, Liberty Mutual claims that certain aspects
of the decisions of the board and the Appellate Court
were inconsistent with the commissioner’s findings. See
footnote 14 of this opinion. The dispositive thrust of
Liberty Mutual’s argument, however, is that the commis-
sioner lacked any statutory authority to order the reim-
bursement to Chubb. Specifically, Liberty Mutual
contends that the factual circumstances of this case fall
within our existing legal framework for apportionment
disputes, and that ‘‘the Workers’ Compensation Act
does not provide statutory power to a commissioner
to order reimbursement between two carriers with sep-
arate and distinct injuries.’’ Liberty Mutual further cites
Stickney v. Sunlight Construction, Inc., 248 Conn. 754,
730 A.2d 630 (1999), for the proposition that any neces-
sary powers granted to the commissioner pursuant to
§ 31-278 do not, standing alone, authorize the commis-
sioner to order one insurance carrier to reimburse
another insurance carrier for a portion of a claimant’s
temporary total disability payments.10
In response, Chubb argues that ‘‘the underlying mat-
ter [was] squarely in the province’’ of the commissioner,
who ‘‘was faced with a unique set of circumstances
for which there was no applicable precedent.’’ Chubb
observes that, following two separate and distinct work-
related knee injuries, the claimant sought to have bilat-
eral knee replacement surgery with the financial sup-
port of his employer’s successive insurance carriers.
Moreover, Chubb notes the commissioner’s finding that
the medically necessary replacement of either knee
would independently result in a period of temporary
total disability for the claimant and, thus, that the insur-
ance carriers were concurrently liable for postsurgery
disability payments under the relapse statute, § 31-307b.
At that juncture, Chubb asserts, the commissioner
needed to avoid awarding a double recovery to the
claimant and instead ‘‘equitably resolved the dispute
between the [insurance carriers] regarding the division
of indemnity benefits calculated pursuant to § 31-307b,
which is in accordance with the commissioner’s powers
granted under § 31-278.’’11 We agree and conclude that,
given the unique factual circumstances of this case, the
commissioner had the authority to order Liberty Mutual
to reimburse Chubb for 50 percent of the claimant’s
temporary total disability payments.
‘‘As a threshold matter, we set forth the standard of
review applicable to workers’ compensation appeals.
The principles that govern our standard of review in
workers’ compensation appeals are well established.
The conclusions drawn by [the commissioner] 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. . . . It is well established that [a]lthough
not dispositive, we accord great weight to the construc-
tion given to the workers’ compensation statutes by the
commissioner and [the] board. . . . A state agency is
not entitled, however, to special deference when its
determination of a question of law has not previously
been subject to judicial scrutiny’’; (internal quotation
marks omitted) Deschenes v. Transco, Inc., 288 Conn.
303, 311, 953 A.2d 13 (2008); or when its construction of
a statute has not been ‘‘time-tested.’’ (Internal quotation
marks omitted.) Sullins v. United Parcel Service, Inc.,
315 Conn. 543, 550, 108 A.3d 1110 (2015).
The present appeal requires us to determine whether
the commissioner acted within the realm of his statu-
tory authority in ordering Liberty Mutual to reimburse
Chubb for 50 percent of the claimant’s temporary total
disability payments. The scope of our discussion is nar-
rowed, however, because counsel for Liberty Mutual
conceded at oral argument before this court that, in
this instance, the commissioner possessed the statutory
authority to order either of the insurance carriers to
make 100 percent of the claimant’s temporary total
disability payments pursuant to the relapse statute, § 31-
307b.12 Thus, this case is most accurately framed as one
in which the commissioner held concurrent statutory
authority over the insurance carriers as to payment,
and not one in which there was a vacuum of such
statutory authority.13
We can think of no logical reason why, if the commis-
sioner was authorized under the literal language of the
relapse statute to order either of the insurance carriers
to make 100 percent of the claimant’s temporary total
disability payments, he would not also be authorized
to order each of the insurances carriers to make, in
effect, only 50 percent of such payments. In our view,
the claimant’s bilateral knee replacement surgery pre-
sented the commissioner with a highly unusual dilemma
arising under § 31-307b, which he then necessarily
resolved in a lawful and reasonable manner. See Gen-
eral Statutes § 31-278 (‘‘[e]ach commissioner . . . shall
have all powers necessary to enable him to perform
the duties imposed upon him by the provisions of this
chapter’’); cf. 2 Am. Jur. 2d 67, Administrative Law § 54
(2014) (‘‘Generally, administrative agencies have the
implied powers that are reasonably necessary in order
to carry out the powers expressly granted. The reason
for an agency’s implied powers is that, as a practical
matter, the legislature cannot foresee all the problems
incidental to carrying out the duties and responsibilities
of the agency.’’ [Footnote omitted.]).
In theory, the commissioner had three ways to
resolve the insurance carriers’ dispute about their con-
current responsibility for the claimant’s temporary total
disability benefits. First, he could have ordered both
insurance carriers to pay the claimant fully at his relapse
rate. The parties do not dispute, however, that such an
approach would have violated our state’s long-standing
general prohibition on double recoveries for claimants.
See, e.g., Enquist v. General Datacom, 218 Conn. 19,
26, 587 A.2d 1029 (1991) (‘‘[o]ne of the purposes of the
workers’ compensation statute is the avoidance of two
independent compensations for the injury’’ [internal
quotation marks omitted]); see also id., 26 n.6 (‘‘[t]he
policy of avoiding double recovery is a strong one, and
has on occasion been invoked to override a result that
might be thought required by a literal or technical inter-
pretation of statutes’’ [internal quotation marks
omitted]).
Second, the commissioner could have ordered just
one of the insurance carriers to pay the claimant fully
at his relapse rate. Because the commissioner found
that either knee replacement surgery would indepen-
dently result in a period of temporary total disability
for the claimant, such an approach would have allowed
the second insurance carrier to be a free rider due to
the fortuitous, overlapping timing of these surgeries.
The third approach, actually taken, was for the com-
missioner to order each insurance carrier to pay, in
effect, one half of the claimant’s relapse rate. Given the
alternatives, this course of action was a necessary and
reasonable interim compromise, subject to possible
later modification upon the motion of either insurance
carrier. See General Statutes § 31-315 (‘‘[a]ny award
of, or voluntary agreement concerning, compensation
made under the provisions of this chapter . . . shall
be subject to modification . . . upon the request of
either party . . . whenever it appears to the compensa-
tion commissioner, after notice and hearing thereon
. . . that changed conditions of fact have arisen which
necessitate a change of such agreement [or] award . . .
in order properly to carry out the spirit of this chapter’’).
Accordingly, we conclude that, given the unique factual
circumstances of this case, the commissioner had the
authority to order Liberty Mutual to reimburse Chubb
for one half of the temporary total disability payments to
which the claimant was entitled pursuant to the relapse
statute, § 31-307b.14
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
General Statutes § 31-307b provides in relevant part: ‘‘If any employee
who receives compensation under section 31-307 returns to work after
recovery from his or her injury and subsequently suffers total or partial
incapacity caused by a relapse from the recovery from, or a recurrence of,
the injury, the employee shall be paid a weekly compensation equal to
seventy-five per cent of his or her average weekly earnings as of the date
of the original injury or at the time of his or her relapse or at the time of the
recurrence of the injury, whichever is the greater sum, calculated pursuant to
section 31-310, after such earnings have been reduced by any deduction for
federal or state taxes, or both, and for the federal Insurance Contributions
Act made from such employee’s total wages received during the period of
calculation of the employee’s average weekly wage pursuant to said section
31-310 . . . .’’
2
We granted Liberty Mutual’s petition for certification for appeal limited
to the following issue: ‘‘Did the Appellate Court correctly conclude that
the Workers’ Compensation Review Board properly determined that the
appellant, Liberty Mutual . . . was required to reimburse the appellee,
Chubb & Son, 50 percent of the temporary total disability payments paid
to the claimant following his [bilateral] knee replacement surgery?’’ Gill v.
Brescome Barton, Inc., 310 Conn. 912, 76 A.3d 629 (2013).
3
Neither the claimant nor his employer, the named defendant, Brescome
Barton, Inc., is a party to the present appeal.
4
For the sake of simplicity, we may refer to Liberty Mutual and Chubb
jointly as the insurance carriers.
5
Previously, Liberty Mutual had filed a motion to correct the original
finding and award. The commissioner made certain corrections, but they
do not affect the issues in this certified appeal.
6
On appeal, Liberty Mutual has not disputed the applicability of the relapse
statute, § 31-307b, to the claimant’s postsurgery recuperation period.
7
Liberty Mutual specifically relied on Hatt v. Burlington Coat Factory, 263
Conn. 279, 819 A.2d 260 (2003), and Malz v. State/University of Connecticut
Health Center, No. 4701, CRB 6-03-7 (August 20, 2004).
8
Chubb specifically relied on Mund v. Farmers’ Cooperative, Inc., 139
Conn. 338, 94 A.2d 19 (1952).
9
General Statutes § 31-278 provides in relevant part: ‘‘Each commissioner
. . . shall have all powers necessary to enable him to perform the duties
imposed upon him by the provisions of this chapter. . . .’’
10
At times, Liberty Mutual’s argument that the commissioner lacked statu-
tory authority appears to blend into an argument that the commissioner
lacked subject matter jurisdiction to adjudicate the insurance carriers’ dis-
pute over the temporary total disability payments. Because the concepts
are prone to conflation, we briefly note some nuanced differences between
subject matter jurisdiction and statutory authority. Subject matter jurisdic-
tion describes the power of a tribunal to adjudicate a particular type of
controversy; it relates to a tribunal’s competency to hear and resolve a
dispute. Keller v. Beckenstein, 305 Conn. 523, 531, 46 A.3d 102 (2012).
Statutory authority, in contrast, describes the ‘‘way in which [a tribunal’s]
power must be exercised in order to comply with the terms of the statute.’’
(Internal quotation marks omitted.) New England Pipe Corp. v. Northeast
Corridor Foundation, 271 Conn. 329, 336, 857 A.2d 348 (2004).
To the extent that Liberty Mutual appears to argue that the commissioner
lacked subject matter jurisdiction in this action, we conclude that any such
claim is untenable. It is undisputed that the surgical replacement of either
knee would temporarily totally disable the claimant, thereby entitling him
to payment from the associated insurance carrier under the Workers’ Com-
pensation Act—and more specifically under the relapse statute, § 31-307b.
The insurance carriers’ dispute about sharing these payments in light of the
claimant’s undergoing bilateral knee replacement surgery thus presents a
legal question arising directly from the application of provisions of the
Workers’ Compensation Act. See Castro v. Viera, 207 Conn. 420, 427, 541
A.2d 1216 (1988) (‘‘[j]urisdiction of the subject-matter is the power [of a
tribunal] to hear and determine cases of the general class to which the
proceedings in question belong’’ [internal quotation marks omitted]); see
also General Statutes § 31-278 (‘‘[the] commissioner shall hear all claims
and questions arising under this chapter’’). In this regard, the present case
is distinguishable from Stickney v. Sunlight Construction, Inc., supra, 248
Conn. 762, cited by Liberty Mutual, which held that subject matter jurisdic-
tion did not exist when the central legal question that an insurance carrier
sought to have the commissioner hear and determine was ‘‘an insurance
coverage issue, requiring the evaluation of insurance policies and the applica-
tion of contract law.’’ Because we conclude that the commissioner had
subject matter jurisdiction in this action, we therefore focus our attention
on Liberty Mutual’s argument that the commissioner lacked the statutory
authority to order the reimbursement to Chubb.
11
In passing, Chubb contends that the reimbursement order was also
consistent with the commissioner’s equitable powers granted under General
Statutes § 31-298. This court, however, has ‘‘interpreted [§ 31-298] to cover
only the manner in which hearings are conducted,’’ and not the ensuing
manner in which a commissioner provides relief between parties. Leonetti
v. MacDermid, Inc., 310 Conn. 195, 218, 76 A.3d 168 (2013).
12
The following colloquy evinces Liberty Mutual’s concession:
‘‘The Court: But you would agree that the commissioner had the authority
to order Liberty Mutual to pay temporary total disability, in accordance with
the applicable rate, for the disability occurring [on the left] knee, correct?
‘‘[Counsel for Liberty Mutual]: Correct, Your Honor. Absolutely. Yes. He
would . . . have the authority to do that, yes. And the insurance carrier
would have a full obligation to pay that, yes.
‘‘The Court: Right. So the commissioner also has the authority to do the
exact same thing with Chubb on the other knee, correct?
‘‘[Counsel for Liberty Mutual]: Correct, Your Honor.
‘‘The Court: So . . . it seems to me that this case comes down to a
windfall to the claimant, or a splitting, an equitable distribution, between
the two insurance companies. I don’t understand where there’s any lack of
authority on the part of the commissioner to do that.’’
13
To the extent that Liberty Mutual argues that this court’s apportionment
precedent bars the reimbursement order, we note—as did the board and
the Appellate Court—that the present action involves a distinguishable, sui
generis fact pattern. Liberty Mutual relies on Hatt v. Burlington Coat Fac-
tory, 263 Conn. 279, 306–309, 819 A.2d 260 (2003), which held that an earlier
employer was not responsible for any of a subsequent employer’s disability
payments for a later, separate and distinct injury to a claimant’s foot. By
comparison, it cannot be said that Liberty Mutual is being held responsible
for any of Chubb’s disability payments for the later, separate and distinct
injury to the claimant’s right knee. Both knees required replacement surgery,
and the surgery on either knee would independently render the claimant
temporarily totally disabled.
14
Beyond its claim that the commissioner lacked statutory authority to
order reimbursement in this case, Liberty Mutual also raises two claims of
error during the appellate review process. First, Liberty Mutual argues that
the board improperly substituted its judgment for that of the commissioner
when it misinterpreted the ‘‘incidental expenses’’ term in the insurance
carriers’ March 10, 2010 agreement. Specifically, Liberty Mutual asserts
that—from the inception of this dispute—both insurance carriers openly
acknowledged that their agreement did not encompass temporary total
disability benefits, thus making it improper for the board to determine
sua sponte that ‘‘in this instance ‘incidental expenses’ would include the
unavoidable expense of . . . benefits due [to] the claimant postsurgery.’’
Remarkably, Liberty Mutual argues that the board’s decision was premised
entirely on this improper misinterpretation of the ‘‘incidental expenses’’
term, even though only one subsidiary paragraph of the board’s seven page
decision examined the matter.
Second, Liberty Mutual argues that the Appellate Court improperly
assumed that the board’s misinterpretation was harmless error because its
decision avoided the absurd result of forcing the claimant to have two
separate knee replacement surgeries. See Gill v. Brescome Barton, Inc.,
supra, 142 Conn. App. 295. In making this assumption, Liberty Mutual con-
tends, the Appellate Court echoed the board’s faulty reading of the commis-
sioner’s corrected finding and award, because the commissioner did ‘‘not
point out [that] any such horrors’’ as forced separate surgeries were ever
contemplated during the present action. Relatedly, Liberty Mutual asserts
that the remedial purpose of the Workers’ Compensation Act was not threat-
ened, because this dispute was not focused on whether the claimant would
receive humane medical treatment or due compensation, but rather on
whether it would be appropriate to order reimbursement between the insur-
ance carriers.
We agree that the board improperly misinterpreted the ‘‘incidental
expenses’’ term and, moreover, that the record does not show any actual
contemplation of forcing the claimant to undergo two separate surgeries.
We disagree, however, that either of these apparent missteps during the
review process were prejudicial to Liberty Mutual. As we have explained,
the commissioner’s corrected finding and award fit within the statutory
framework of the Workers’ Compensation Act. Cf. State v. Burney, 288 Conn.
548, 560, 954 A.2d 793 (2008) (‘‘court may rely on any grounds supported by
the record in affirming the judgment of a trial court’’). We therefore conclude
that the corrected finding and award was supported on independent grounds
relating to the commissioner’s proper exercise of his statutory authority.