Gill v. Brescome Barton, Inc.
The Supreme Court's 2003 decision in Hatt v. Burlington Coat Factory, that Connecticut General Statutes §31-299b "permits apportionment only in cases of repetitive trauma or occupational disease and, therefore, does not provide a basis for apportionment of liability among insurers when the claimant has suffered two separate and distinct injuries…" was distinguished here, where two separate and distinct, noncumulative knee injuries occurred and the remedial purposes of the Workers' Compensation Act were fostered by the plaintiff undergoing bilaterial knee replacement surgery with one period of recovery. In 1997, Ronald Gill, Jr., sustained a left knee injury accepted by his employer, Brescome Barton, Inc., and insurer, Liberty Mutual Insurance Group. In 2002, Gill sustained a right knee injury accepted by his employer, then insured by Chubb & Son. Gill's physician recommended bilateral knee replacement surgery. The insurers agreed that the surgeries were reasonable and medically necessary, that Chubb would authorize and administer the surgeries, and that Liberty Mutual would reimburse Chubb 50 percent of the surgical costs, incidental expenses and related prescriptions. Liberty Mutual declined to pay 50 percent of Gill's indemnity of $692.75 for his post-surgery disability period. Following a formal hearing, the commissioner ordered Liberty Mutual to reimburse Chubb 50 percent of the disputed indemnity, finding the situation unique as one injury did not affect the other. The board affirmed the finding and award. Liberty Mutual appealed claiming, first, that the board failed to adhere to the doctrine of stare decisis and under appellate decisions concerning C.G.S. §31-299b, Chubb was not entitled to an apportionment of indemnity paid Gill while temporarily totally disabled. The Appellate Court affirmed the judgment, finding no precedent on point. Hatt was distinguished because each injury here is independent of the other in rendering the plaintiff disabled. The injuries were separate and concurrent, not cumulative. Liberty Mutual also claimed that the board failed to adhere to the applicable standard of review and found facts. However, the facts found by the board were unnecessary to resolve the legal issue and any error was harmless. The commissioner's findings were sufficient to support his award. The remedial purposes of the act were fostered by Gill undergoing bilaterial knee replacement surgery with one period of recovery. The finding and award benefitted the insurers by sharing costs.