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ELIZABETH HADDEN v. CAPITOL REGION

EDUCATION COUNCIL ET AL.

(AC 36913)

DiPentima, C. J., and Gruendel and Harper, Js.*

Argued December 10, 2015—officially released March 22, 2016

(Appeal from Workers’ Compensation Review Board.)

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).
Opinion

GRUENDEL, J. The defendant Capitol Region Education Council1 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

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 Centerfor Global International Studies, a magnet school in Bloomfield. On October 8, 2010, the plaintiff drove to work and taught her classes for the day.

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

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

thattraumatic 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

§ 31-275 (1) (D) was expressly foreclosed by our

Supreme Court’s decision in Cashman v. McTernan

School, Inc., supra, 130 Conn. 407–408, which held that

the predecessor of § 31-275 (1) (D) allowed apportionment only if the preexisting disease was occupational—

here, it was undisputed that the plaintiff’s preexisting

multiple sclerosis was not occupational.

The commissioner rendered a decision on May 3,

2013. He ruled in favor of the plaintiff on compensabil-
ity, finding that she ‘‘suffered a physical compensable

injury’’ and a ‘‘compensable Traumatic Brain Injury’’ on

October 8, 2010. He found that ‘‘said incident made the

[plaintiff’s] condition materially and substantially worse

than it was’’ and that it ‘‘aggravated, in a material and

substantial manner, her physical condition and thus her

current need for treatment is causally related to her

injury of October 8, 2010.’’ He concluded that ‘‘the

[plaintiff] is Temporarily Totally Disabled from the date

of injury to the present, and continuing, based on the

October 8, 2010 workplace injury.’’ Although the commissioner did not expressly discuss apportionment, he

‘‘award[ed] all claims for benefits submitted by the

[plaintiff] in this particular matter.’’6 Finally, the commissioner ordered that ‘‘[t]he issue of the [plaintiff’s]

average weekly wage/basic compensation rate and

other issues not yet resolved are to be heard at a future

hearing to be scheduled by the Commissioner.’’7

Shortly after that decision, the defendant filed a

motion to correct, asking the commissioner to make

ninety-eight additional findings of fact about the plaintiff’s medical history before the injury and its role in

causing hertotal disability after the injury. The commissioner denied the defendant’s motion in full. The defendant then appealed from the commissioner’s decision

to the board, arguing that the commissioner erred in

(1) finding that the plaintiff’s October 8, 2010 work

injury caused her total disability after that date; (2)

holding that the defendant was not entitled to apportionment pursuant to § 31-275 (1) (D); and (3) denying

the defendant’s motion to correct.

The board rendered its decision on May 20, 2014.

It affirmed the commissioner’s judgment on all three

counts, holding that (1) the commissioner was entitled

to believe the plaintiff’s witnesses over the defendant’s

on the issue of whether the plaintiff’s October 8, 2010

work injury caused her total disability after that date;

(2) the commissioner properly denied apportionment,

both because (a) the defendant had waived the right

to seek apportionment when it failed to present evidence at the hearings of what percentage of the plaintiff’s disability should be apportioned to the natural

progression of her preexisting multiple sclerosis versus

aggravation caused by the October 8, 2010 punch, and

(b) on the merits, Cashman precluded apportionment;

and (3) the commissioner ‘‘was legally empowered to

deny’’ the defendant’s motion to correct because it

‘‘appear[ed] to be an effort to reargue the factual evidence . . . .’’ The defendant appealed to this court.

In the present appeal, the defendant concedes that

the plaintiff’s October 8, 2010 work injury was a substantial factor in causing her total disability after that

date, entitling the plaintiff to benefits, but argues that

the board erred in denying apportionment of those benefits pursuant to § 31-275 (1) (D). We disagree.
As the defendant acknowledges, our Supreme Court’s

decision in Cashman forbids a defendant from seeking

apportionment under § 31-275 (1) (D) if the preexisting

disease that was aggravated was not occupational.

Cashman v. McTernan School, Inc., supra, 130 Conn.

407–408. In Cashman, ‘‘[t]he [defendant] claimed that

the [plaintiff’s] award should be reduced under the predecessor to General Statutes § 31-275 (1) (D), which

limits compensation for aggravation of a preexisting

disease to the proportion of the disability attributable

to the injury on which the workers’ compensation claim

is based. This court rejected that claim and concluded

that the statute only required a reduction of benefits

for preexisting occupational diseases.’’ (Emphasis in

original.) Sullins v. United Parcel Service, Inc., 315

Conn. 543, 554, 108 A.3d 1110 (2015).

The Supreme Court has questioned Cashman, but

has not overruled it. Compare Gartrell v. Dept. of Correction, 259 Conn. 29, 44–45, 787 A.2d 541 (2002) (‘‘It

may be that the comprehensive 1993 legislative reform

of the Workers’ Compensation Act; see generally Public

Acts 1993, No. 93-228; casts doubt on our holding in

Cashman, especially in regard to diseases, such as mental or emotional impairments, for which the legislature

has sought to limit compensability. . . . [Nevertheless]

we are not persuaded that the present case is an appropriate one for reconsideration of our holding in Cashman. We, therefore, conclude that the compensation

to which the plaintiff is entitled is not limited by the

apportionment provisions of § 31-275 (1) (D).’’ [Footnote omitted.]), with Sullins v. United Parcel Service,

Inc., supra, 315 Conn. 553–54, 559–60 (continuing to

cite Cashman with approval).

‘‘[I]t is manifest to our hierarchical judicial system

that [our Supreme Court] has the final say on matters

of Connecticut law and that the Appellate Court . . .

[is] bound by [Supreme Court] precedent.’’ Stuart v.

Stuart, 297 Conn. 26, 45–46, 996 A.2d 259 (2010). ‘‘As an

intermediate court of appeal, we are unable to overrule,

reevaluate, or reexamine controlling precedent of our

Supreme Court.’’ State v. Fuller, 158 Conn. App. 378,

387 n.6, 119 A.3d 589 (2015). Because the defendant

concedes that the plaintiff’s preexisting multiple sclerosis was not occupational, we are bound by our Supreme

Court’s holding in Cashman that a nonoccupational

preexisting disease does not entitle a defendant to

apportionment under § 31-275 (1) (D).

The decision of the Workers’ Compensation Review

Board is affirmed.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 Two additional defendants—the Workers’ Compensation Trust, which

serves as the third party administrator of Capitol Region Education Council’s

self-insured workers’ compensation program, and Prosight Specialty Insurance—also appeared before the Workers’ Compensation Review Board and
are parties on appeal to this court. For ease of reference, we refer to Capitol

Region Education Council as the defendant.

2 General Statutes § 31-275 (1) (D) provides: ‘‘For aggravation of a preexisting disease, compensation shall be allowed only for that proportion of

the disability or death due to the aggravation of the preexisting disease

as may be reasonably attributed to the injury upon which the claim is

based . . . .’’

3 We do not consider the defendant’s claim for apportionment under the

rule announced in Deschenes v. Transco, Inc., 288 Conn. 303, 953 A.2d 13

(2008), because the defendant did not raise that claim before the commissioner. In Deschenes, the plaintiff had two diseases—one occupational and

one not—which developed concurrently during the plaintiff’s employment

and combined to render him permanently partially disabled. Id., 306–309.

Our Supreme Court held that this fact pattern fell within a ‘‘statutory gap’’

between § 31-275 (1) (D), which entitled a plaintiff to full benefits if a work

injury aggravated a prior nonoccupational disease, resulting in disability,

and General Statutes § 31-349 (a), which entitled a plaintiff to full benefits

if a work injury combined with a prior disability to yield a greater disability.

Id., 312–14. The court held that for concurrently developing occupational

and nonoccupational diseases, a defendant was entitled to apportionment,

and a plaintiff’s benefits should be reduced in proportion to the percentage

of the plaintiff’s disability caused by the nonoccupational disease. Id., 321.

Here, the defendant did not cite Deschenes before either the commissioner

or the board and expressly disavowed any reliance on Deschenes in its

primary appellate brief to this court, arguing that the case was ‘‘inapposite

to this appeal.’’ ‘‘The [defendant] did not bring [its] asserted [claim] to the

attention of the commissioner; therefore, [it] did not preserve [the claim].’’

Abbotts v. Pace Motor Lines, Inc., 106 Conn. App. 436, 437 n.2, 942 A.2d

505, cert. denied, 287 Conn. 910, 950 A.2d 1284 (2008); see also Jones v.

Connecticut Children’s Medical Center Faculty Practice Plan, 131 Conn.

App. 415, 432, 28 A.3d 347 (2011) (‘‘[T]he [defendant] failed to raise this

issue before either the commissioner or the board. As a general matter, we

do not decide issues raised forthe first time on appeal.’’ [Footnote omitted.]).

Accordingly, we do not review the defendant’s claim for apportionment

under the rule announced in Deschenes.

4 The defendant properly raised two other issues on appeal to this court:

(1) that the board erred in finding that the defendant had waived its claim

for apportionment; and (2) that the board erred in denying the defendant’s

motion to correct. As to the first issue, waiver, we do not address it because

we conclude that even if the defendant’s apportionment claim was preserved

properly, Cashman clearly disposes of it on the merits. As to the second

issue, ‘‘a motion to correct is properly denied when the additional findings

sought by the movant would not change the outcome of the case.’’ Testone

v. C. R. Gibson Co., 114 Conn. App. 210, 222, 969 A.2d 179, cert. denied, 292

Conn. 914, 973 A.2d 663 (2009). Here, the defendant’s ninety-eight additional

proposed findings of fact would not render Cashman any less binding and

so would not change the outcome of the case. The board thus properly

affirmed the denial of the defendant’s motion to correct.

5 The defendant never contested liability for the plaintiff’s dislocated jaw

and other facial injuries suffered as a direct result of the punch.

6 The effect of awarding ‘‘all claims for benefits’’ was to deny the defendant’s request that the commissioner award only reduced benefits. (Emphasis added.) Cf. Bennett v. Agricultural Ins. Co., 51 Conn. 504, 510 (1884)

(‘‘[t]he [ruling], by ignoring entirely the point of the defendant’s request,

was in effect a denial of its correctness’’).

7 We note that there is no final judgmentrequirement for workers’ compensation appeals. General Statutes § 31-301b.