142 Conn. App. 279
Conn. App. Ct.2013Background
- Gill sustained two separate knee injuries: left knee (1997) and right knee (2002), each arising in the course of employment.
- The insurer for the second injury, Chubb, and Liberty Mutual eventually agreed that bilateral knee replacement surgeries were medically necessary and would be administered by Chubb; Liberty Mutual would reimburse 50% of the surgical costs.
- Gill elected simultaneous bilateral knee replacements, creating one recovery period and allocating costs and indemnity considerations across both injuries.
- The 2010 agreement did not specify the rate of indemnity or each insurer’s contribution to indemnity; the dispute centered on whether Liberty Mutual must pay 50% of post-surgery indemnity ( relapse rate) as well as costs.
- The commissioner set a relapse rate of $692.75 per week for indemnity and ordered Liberty Mutual to reimburse 50% of indemnity and 50% of medical costs related to the surgeries.
- The board affirmed, concluding the case was sui generis and that the remedial purpose of the act supports concurrent apportionment; Liberty Mutual appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the board correctly applied stare decisis | Gill argues prior § 31-299b decisions control. | Liberty Mutual argues board departed from precedent. | Board did not violate stare decisis; facts are sui generis and review is plenary. |
| Whether the 2010 agreement governs indemnity apportionment | Gill contends agreement supports 50/50 indemnity with Chubb for post-surgery relapse. | Liberty Mutual contends the agreement did not address relapse rate or indemnity apportionment. | Commissioner’s award based on remedial act; board’s reliance on the agreement is permissible and supports apportionment. |
| Whether apportionment was proper as a matter of law | Gill maintains two concurrent injuries may warrant apportionment to avoid double recovery. | Liberty Mutual contends Mund/Hatt control and two injuries do not mandate such apportionment. | Apportionment consistent with remedial act and public policy against double recovery; concurrent injuries justify 50/50 share of indemnity. |
Key Cases Cited
- Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003) (apportionment for single injury with multiple insurers; distinguishable facts)
- Mages v. Alfred Brown, Inc., 123 Conn. 188 (1937) (second-injury liability when second insurer bears disability; distinguishable)
- Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338 (1952) (two ruptures as concurrent causes; apportioned between carriers)
- Marroquin v. F. Monarca Masonry, 121 Conn. App. 400 (2010) (distinguishable; previous case relied on Hatt for single injury)
- Pokomy v. Getta’s Garage, 219 Conn. 439 (1991) (discusses double recovery and remedial purpose)
- Nichols v. Lighthouse Restaurant, Inc., 246 Conn. 156 (1998) (double recoveries disfavored; remedial construction)
- First Union National Bank v. Hi Ho Mall Shopping Ventures, Inc., 273 Conn. 287 (2005) (remedial purpose; avoid absurd results)
- Mingachos v. CBS, Inc., 196 Conn. 91 (1985) (remedial construction of act; broaden benefits)
- Doe v. Stamford, 241 Conn. 692 (1997) (resolve statutory ambiguities in remedial context)