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Hadden v. Capitol Region Education Council

Appellate Court of Connecticut

March 22, 2016

ELIZABETH HADDEN
v.
CAPITOL REGION EDUCATION COUNCIL ET AL

         Argued December 10, 2015.

          Appeal from the decision of the Workers' Compensation Commissioner for the First District finding that the plaintiff had sustained a compensable work related injury and awarding benefits, brought to the Workers' Compensation Review Board, which affirmed the finding and award, and the named defendant et al. appealed to this court.

          SYLLABUS

         The defendant employer, C Co., appealed to the Workers' Compensation Review Board from the decision of the Workers' Compensation Commissioner finding that the plaintiff had sustained a compensable work related injury and awarding benefits for the plaintiff's temporary total disability. The board affirmed the commissioner's finding and award, and C Co. appealed to this court. C Co., which conceded that the plaintiff's work injury had caused her total disability, entitling her to benefits, challenged only the denial of its request, pursuant to statute (§ 31-275 [1] [D]), to reduce the plaintiff's award in proportion to the percentage of her disability that was caused not by the work injury's aggravation of her preexisting multiple sclerosis, but by the natural progression of that condition. Held that the board correctly determined that the commissioner's denial of C Co.'s request for apportionment was proper; our Supreme Court previously has determined that apportionment under § 31-275 (1) (D) is allowed only if the preexisting disease is occupational, and given that it was undisputed that the plaintiff's preexisting multiple sclerosis was not occupational, this court was bound by that Supreme Court precedent holding that a nonoccupational preexisting disease does not entitle a defendant to apportionment under § 31-275 (1) (D).

         Phyllis M. Pari, with whom, on the brief, were Kristen Sotnik Falls, Christopher Foley and Lisa A. Bunnell, for the appellants (named defendant et al.).

         Richard T. Stabnick, with whom was Courtney C. Stabnick, for the appellee (plaintiff).

         DiPentima, C. J., and Gruendel and Harper, Js.[*] GRUENDEL, J. In this opinion the other judges concurred.

          OPINION

          [164 Conn.App. 42] GRUENDEL, J.

          The defendant Capitol Region Education Council[1] appeals from a decision of the Workers' Compensation Review Board (board) that both (1) upheld an award by the Workers' Compensation Commissioner (commissioner) of temporary total disability benefits to the defendant's employee--the plaintiff, Elizabeth Phelps Hadden--for her ongoing total disability since she was injured at work in 2010; and (2) denied the defendant's request, pursuant to General Statutes § 31-275 (1) (D),[2] to reduce the plaintiff's award in proportion to the percentage of her disability caused not by the work injury's aggravation of her preexisting condition, but by the natural progression of that condition. On appeal, the defendant concedes that the plaintiff's work injury caused her total disability, entitling her to benefits, and challenges only the denial of apportionment pursuant to § 31-275 (1) (D).[3] On that issue, we [164 Conn.App. 43] conclude that we are bound by our Supreme Court's holding in Cashman v. McTernan School, Inc., 130 Conn. 401, 34 A.2d 874 (1943), which expressly forbids apportionment if the preexisting condition was nonoccupational, as is the plaintiff's condition here. Accordingly, we affirm the decision of the board.[4]

         The commissioner found the following facts. During the fall of 2010, the defendant employed the plaintiff as a physical education teacher at the Metropolitan Learning Center for Global International Studies, a magnet school in Bloomfield. On October 8, 2010, the plaintiff drove to work and taught her classes for the day. [164 Conn.App. 44] After class, the plaintiff was walking over to open the girls locker room when someone told her that two students were fighting. The plaintiff went to break up the fight. When the plaintiff arrived at the fight, she got on top of one of the students to protect him from being hit by the other student. The other student punched the plaintiff in the jaw, causing the plaintiff to fall backward and hit her head. The plaintiff sustained a traumatic brain injury. After breaking up the fight, the plaintiff had difficulty walking. The school nurse came with a wheelchair and brought the plaintiff to the nurse's office. The plaintiff had a severe headache and was vomiting. She was taken by ambulance to the hospital, where she was intubated to control the muscle spasms that developed. The plaintiff remained in the hospital for nine weeks. As a result of the injury, the plaintiff was rendered totally disabled. The plaintiff has been unable to work since that time.

         After the injury, the plaintiff filed a workers' compensation claim for temporary total disability benefits. The defendant contested that claim. The commissioner held seven days of formal hearings--spanning June 30, 2011 to September 18, 2012--concerning the plaintiff's work injury and ensuing total disability. The core dispute was whether, as the plaintiff argued, the October 8, 2010 punch had aggravated the plaintiff's preexisting multiple sclerosis, causing her total disability; or whether, as the defendant argued, the punch had merely dislocated the plaintiff's jaw, with her total disability resulting instead from the natural progression of her preexisting multiple sclerosis.[5]

         At the hearings, the plaintiff submitted the deposition testimony of two medical witnesses. Matthew Raymond, an osteopathic physiatrist, testified that the [164 Conn.App. 45] plaintiff had suffered a traumatic brain injury on October 8, 2010, and that it had exacerbated her multiple sclerosis. Peter Wade, the plaintiff's primary treating physician for her multiple sclerosis, testified to similar effect. Both Raymond and Wade testified that the punch to the face on October 8, 2010, was a substantial factor in causing the plaintiff's total disability.

         The defendant submitted the testimony of one medical witness. Kimberlee Sass, a neuropsychologist, testified at the hearing that various studies had concluded that traumatic brain injuries played no role in exacerbating multiple sclerosis, and that in any case he believed that the plaintiff had not suffered a traumatic brain injury when she was punched on October 8, 2010. The defendant also submitted the report of Joseph Guarnaccia, a neurologist at Griffin Hospital, who opined that " [i]t [was] substantially probable that the trauma [the plaintiff] experienced in October of 2010, triggered a relapse of her multiple sclerosis" but that " the trauma itself was not severe enough to cause a traumatic brain injury" and that the relapse was " similar to her previous relapses in terms of her neurological dysfunction."

         At the close of evidence, both parties submitted posttrial briefs to the commissioner in which they summarized the arguments they had made over the course of the hearings. In its posttrial brief, the defendant also raised the issue of apportionment under § 31-275 (1) (D) for the first time, arguing that if the commissioner found in favor of the plaintiff on compensability, he should then decide what portion of the plaintiff's total disability was caused by the work injury's aggravation of her preexisting multiple sclerosis and what portion of her disability was caused by the disease's natural progression, holding the defendant liable only for the portion of the plaintiff's current total disability attributable to aggravation by the work injury. The defendant acknowledged in its brief that apportionment under [164 Conn.App. 46] § 31-275 (1) (D) was expressly foreclosed by our Supreme Court's decision in Cashman v. McTernan School, Inc., supra ...


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