Compensation Review Board


    Workers’ Compensation; Apportionment; Whether Insurer Responsible for First Injury Required to Reimburse Insurer Responsible for Second Injury Fifty Percent of Temporary Total Disability Benefits Paid to Plaintiff Following Simultaneous Surgeries for Both Injuries. The plaintiff sustained a compensable left knee injury while his employer was insured by Liberty Mutual Insurance Group, and he subsequently sustained a compensable right knee injury while his employer was insured by Chubb & Son.  The plaintiff elected to undergo bilateral knee replacement surgery, and the insurers reached an agreement whereby Chubb agreed to authorize and administer the surgery and Liberty Mutual agreed to reimburse Chubb fifty percent of the surgical costs and incidental expenses related to the surgery.  Subsequently, the trial commissioner ordered Liberty Mutual to reimburse Chubb fifty percent of the § 31-307b temporary total disability benefits it had paid the plaintiff for his disability period following the surgery.  The compensation review board (board) affirmed that decision, and Liberty Mutual appealed.  Liberty Mutual claimed that the board failed to adhere to precedent establishing that, under General Statutes § 31-299b, apportionment between insurers is only permitted in cases involving a single injury such that the insurer on the second injury is solely liable for any treatment that the claimant undergoes following that injury.  The Appellate Court (142 Conn. App. 279) disagreed, finding that precedent distinguishable and agreeing with the board that the facts of this case are unique.  The court also rejected Liberty Mutual’s claim that the board erred in finding that the insurers intended that the § 31-307b benefits would constitute incidental expenses under the agreement, noting that, insofar as the commissioner’s findings were sufficient to support the award, any allegedly improper findings made by the board constituted harmless error.  The Appellate Court affirmed the board’s decision, ruling that the award was appropriate because it did not contravene § 31-299b and because it fostered the remedial purposes of the act by permitting the plaintiff to undergo simultaneous surgeries for both injuries with one period of recovery.  The court added that the award also benefited the insurers as it allowed them to share liability for the plaintiff’s § 31-307b benefits.  The court observed that, had the plaintiff undergone separate knee replacement surgeries, each insurer would have been liable for the payment of any § 31-307b benefits owed him following surgery.  In this appeal, the Supreme Court will decide whether the Appellate Court properly affirmed the board’s decision that Liberty Mutual was required to reimburse Chubb fifty percent of the temporary total disability payments paid to the plaintiff following his bilateral knee replacement surgery.