Gill v. Brescome Barton, Inc.
The rule from the 2003 Connecticut Supreme Court case of Hatt v. Burlington Coat Factory is that the insurer on the risk for the more recent of two injuries is responsible for the entire subsequent liability; but, Hatt was inapplicable here, where the claimant did not sustain two serial or combined disabling injuries but two separate and distinct knee injuries to each knee and either knee replacement would totally disable the claimant following surgery. Ronald Gill, Jr., sustained an injury to his left knee during the course and scope of employment with Brescome Barton, Inc. A voluntary agreement was reached accepting the injury as compensable. Liberty Mutual was the carrier responsible for this injury. Gill later sustained an injury to his right knee which Brescome Barton accepted as compensable. The carrier then was Chubb & Son. The parties agreed that Chubb would authorize and administer bi-lateral knee replacement surgery and Liberty Mutual would reimburse 50 percent of the surgical costs, incidental expenses and defined related prescriptions. The agreement did not address what rate the claimant would be paid indemnity benefits or the contribution of each carrier towards indemnity. Liberty Mutual declined to pay 50 percent of the indemnity relapse rate agreed upon by Chubb and Gibbs. The trial commissioner found this was a unique situation where neither knee injury affects the other and either knee replacement would totally disable the claimant following surgery. The trial commissioner found that bilateral knee replacement was medically necessary and reasonable and ordered indemnity payments at the relapse rate of $692.75 to be administered by Chubb. Liberty Mutual was ordered to reimburse Chubb 50 percent of the indemnity payments and medical costs. Liberty Mutual appealed arguing that the relief granted contravened Hatt and the 2004 Compensation Review Board decision in Malz v. State-Univeristy of Connecticut Health Center. The Compensation Review Board affirmed the decision unpersuaded that any precedent governed what appeared to be a sui generis fact pattern. The trial commissioner properly exercised his powers under C.G.S. §1-278 to equitably resolve the dispute. The finding and award was consistent with the agreement reached by the carriers on other issues.