CRB Case Annotations re: Section 31-349

Based on CRB’s opinion in Hatt v. Burlington Coat Factory, 4326 CRB-2-00-12 (December 19, 2001) CRB held apportionment not available and affirmed trial commissioner’s assignment of sole liability for the second injury to the employer at the time of the second injury. CRB did not choose to use this case as an opportunity to revisit Hatt. See, Ortiz, § 31-299b.

CRB upheld trier’s factual finding that claimant’s complaints of low back pain were not medically significant enough to constitute a disability within the meaning of the notice provision. Trier had exclusive authority to gauge the severity of the claimant’s symptoms from the medical reports, and not all symptoms and/or effects of an injury need be deemed significant enough to constitute “disabilities” or “medical impairments” within the meaning of § 31-349 as interpreted by controlling caselaw. Prior decisions in Holmes, 4027 CRB-5-99-4 (Nov. 7, 2000), § 31-349; Holmes, 3338 CRB-8-96-5 (Dec. 16, 1997), § 31-294c; Holmes, 12 Conn. Workers’ Comp. Rev. Op. 369, 1588 CRB-5-92-12 (Aug. 11, 1994), § 31-294c, § 31-299b, § 31-301. Factual findings.

CRB held that § 31-349, as interpreted by Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635 (1999), does not permit “common-law” apportionment of liability between two separate injuries as discussed in Mund v. Farmer’s Cooperative, Inc., 139 Conn. 338 (1952), now that the Second Injury Fund has been closed to new injuries. Where two injuries materially contribute to cause a permanent partial disability (which may be apportioned under § 31-349), the cost of associated medical care and temporary disability benefits-either total or partial-must continue to be borne by the insurer or insurers on the risk for the second injury alone. See Hatt, § 31-299b, § 31-301. Appeal procedure.

CRB affirmed trier’s denial of Second Injury Fund’s motion to dismiss transfer claim on ground that it remained pending after July 1, 1999; issue has been settled by Giaimo v. New Haven, 257 Conn. 481 (2001), with Supreme Court ruling that July 1, 1999 deadline only pertains to eligibility of claim for transfer. Board affirmed trier’s decision to deny claim for transfer, however, on ground that respondents had failed to prove that timely notice of claim was tendered to the Fund as per § 31-349(b). Respondents carry burden of proving that notice requirements were met, and discrepancy between certified mail receipt and the notice itself prevented trier from knowing whether notice was delivered before or after the one-year mark prior to the expiration of the 104th week of disability. Trier permissibly drew inference that respondents had not met their burden of proof. As timely re-notification cannot save a claim that was not initially filed in a proper manner, CRB declined to address § 31-349(e) issue.

See, Kelly, § 31-299b, § 31-301. Factual findings.

The trial commissioner found that the respondents’ representative personally brought the re-notice to Kevin Saba at the Fund on September 29, 1995 (prior to the October 1, 1995 filing date) and that Saba refused delivery although in the past he had accepted personal delivery. The board affirmed the trial commissioner’s conclusion that said in-person attempted delivery substantially complied with § 31-349(e). Case was on point with Correnti v. Grossman’s, Inc., 3858 CRB-8-98-7 (Aug. 31, 1999). See also Chang v. Pizza Hut of America, Inc., 4122 CRB-6-99-9 (November 28, 2000), § 31-301.

The trial commissioner found that the Fund was responsible for the administration of the claimant’s claim during the pendency of the Fund’s appeal from a decision ordering transfer pursuant to § 31-349. The board agreed with the trial commissioner’s determination that § 31-301(f) was not dispositive in this case because the appeal here was taken from a transfer order rather than from an award of benefits. However, the board agreed with the Fund’s argument on appeal that § 31-349(b) provides that the employer or its insurer is responsible for furnishing compensation during the pendency of an appeal from a transfer order and thus reversed the trial commissioner’s decision. See also prior decisions: Karnane v. Saks Fifth Avenue, 3947 CRB-7-98-12 (November 7, 2000), aff’d, 67 Conn. App. 385 (2001) in § 31-349 and Karnane v. Saks Fifth Avenue, 3918 CRB-7-98-10 (January 7, 2000) in Sec. 31-307.

Pursuant to § 31-349(a), board affirmed trier’s conclusion that a prior permanent partial award of 4.5% of the heart (for hypertension) had to be deducted from the 37% permanent partial impairment caused by heart disease in order to prevent a double recovery. See also, Sharkey, § 31-300, § 31-308(b).

CRB denied Fund’s § 31-349h motion to dismiss appeal for reasons stated in Zeoli, infra, and Kuban, infra, this section. Board then relied on Johnson, supra, and Fish, supra, this section, in reversing and remanding trier’s dismissal of transfer case. Panel held that commissioner underestimated his own fact-finding authority by ruling that he was bound by § 31-349c medical panel’s conclusion regarding role of subsequent occupational exposure in contributing to overall disability. Trier is bound by finding of panel regarding existence of previous disability, but must draw own conclusions as to whether the facts establish that this disability combined with subsequent workplace chemical/asbestos exposure to produce a disability materially and substantially greater that that (if any) which would have resulted from the occupational exposure alone. (Wilson, C., dissenting) Legislature intended to quickly assess and eliminate as much Fund financial liability as possible when it passed Public Act 95-277. Medical panel’s authority to resolve all factual issues concerning existence of previous disability should thus be given great respect, and be read as broadly as the statute’s language implies.

Fund argued on appeal that trier erred by ordering it to accept liability for claimant’s injury pursuant to transfer provisions of § 31-349. Specifically, the Fund argued that the trier erroneously relied upon the claimant’s ability to perform his usual work duties in finding that he was not disabled (for purposes of the § 31-349 notice provision) for a period of almost three years. The board agreed, citing Karutz v. Feinstein and Herman, P.C., 59 Conn. App. 565 (2000), cert. denied, 254 Conn. 949 (2000), and remanded the case to the commissioner in order to determine the 104-week disability period without regard to claimant’s return to work.

Trial commissioner erred by applying the notice provision of Public Act 95-277 in the instant case because notice here was filed prior to July 1, 1995 (effective date of the legislation). CRB agreed with the Fund’s argument that the trier erroneously relied upon the claimant’s ability to continue his employment as evidence that he was not disabled for purposes of the § 31-349 notice period. Trier specifically found that claimant suffered serious injuries on July 16, 1993 (a rotator cuff tear and a meniscus tear) which eventually required surgeries, but found that the claimant was not disabled (for purposes of calculating the § 31-349 notice period) from the time of his injury through the date of his surgery, as he was able to continue his normal employment. The board explained that under the court’s reasoning in Karutz v. Feinstein and Herman, P.C., 59 Conn. App. 565 (2000), cert. denied, 254 Conn. 949 (2000), the claimant was physically impaired (and thus disabled under § 31-349) from the date of his injury. Accordingly, the decision was reversed.

CRB affirmed trial commissioner’s conclusion that respondents provided proper notice pursuant to § 31-349 for a 1986 injury. Trier found that claimant sustained a compensable injury to his right knee on November 6, 1986 while working for the respondent employer; that while working for another employer, claimant had sustained a prior compensable injury to his right knee in 1981; and that he sustained a subsequent compensable injury to his right knee while working for a third employer in 1992. CRB affirmed the trier’s finding that claimant was not disabled within the meaning of § 31-349 for two periods where there was “no evidence of medical or physical limitations or impairments attributable to the [1986] injury….” The board found no merit to the Fund’s argument that the liability which could be transferred to the Fund was limited because claimant sustained a third injury in 1992.

Respondents sought transfer under § 31-349 for a claim which they paid under the Federal Longshore and Harbor Workers’ Compensation Act. Trier concluded that respondents had never accepted claimant’s claim under Chapter 568 and had never paid any benefits under that statute, and thus denied the respondents’ request to transfer the claim to the Fund pursuant to § 31-349. CRB agreed. Additionally, the board agreed with the commissioner’s determination that respondents failed to provide timely notice to the Fund.

See, Boccuzzi, § 31-308(b).

CRB affirmed trier’s determination that case involving occupational disease superimposed upon underlying genetic neuropathy did not have to be transferred to medical panel because there was no controversy regarding the existence of a previous disability. Commissioner could reasonably decide that issue of underlying neuropathy had been settled by previous decision, and Fund offered no evidence whatsoever to substantiate its assertion that the case should not transfer. Medical panel was designed to review cases in which there was a legitimate controversy based on some degree of conflicting evidence. CRB also upheld trier’s conclusion that claimant’s disease constituted a permanent partial impairment. Though she was asymptomatic prior to occupational exposure to toxic chemicals, the doctors did state that the claimant actually had the disease at the time of her injury, rather than a mere predisposition toward developing it. See also, Mulroy, 16 Conn. Workers’ Comp. Rev. Op. 7, 2295 CRB-8-95-2 (October 2, 1996), § 31-301c; Mulroy, 15 Conn. Workers’ Comp. Rev. Op. 455, 2295 CRB-8-95-2 (September 6, 1996), aff’d, 48 Conn. App. 774 (1998), § 31-298, § 31-301 Factual findings.

CRB affirmed trier’s dismissal of transfer claim, where trier relied on medical panel opinion discussing effect of preexisting injury on subsequent disability. Board held that trier was required to implement panel’s ruling on existence of previous disability, but was entitled to make her own legal determination as to whether that disability materially and substantially increased the subsequent disability. Medical panel’s opinion that prior injury did not materially increase the later disability was supported by medical report of treating physician that was part of the evidentiary record, and trier did not err in citing the panel’s opinion in her Finding and Dismissal. Reasonable to find that 10% accountability did not constitute a substantial and material increase. Presence of preexisting permanent impairment does not require finding that condition has caused material and substantial increase in subsequent disability. Zeoli, infra, also cited re: Fund motion to dismiss appeal.

Masko v. Wallingford, 4076 CRB-8-99-7 (July 11, 2000), aff’d, 67 Conn. App. 276 (2001).

Majority of CRB panel affirmed trial commissioner’s finding that respondent provided timely re-notification to Second Injury Fund by mailing letter via certified mail on September 28, 1995, even though notice was not received until October 2. Respondent introduced evidence tending to show that Fund did not receive certified mail on Friday, September 29 or Saturday, September 30, and trier found that post office had failed to make timely delivery of letter. CRB held that this subordinate fact, coupled with recent Supreme Court decision in Bittle v. Commissioner of Social Services, 249 Conn. 503 (1999), provided sufficient legal support for trier’s ruling. Respondent complied with notice provision to best of its ability, and should not be blamed for actions of Fund or post office. Prior decision in Masko, 3225 CRB-6-955-12 (January 24, 1997), aff’d, 48 Conn. App. 515 (1998), § 31-275(1).

Giaimo v. New Haven, 4034 CRB-3-99-4 (May 22, 2000), rev’d, 257 Conn. 481 (2001).

Respondents challenged constitutionality of medical panel provision by filing a motion before the trial commissioner seeking a formal evidentiary hearing on the issue of medical qualification for transfer. Medical panel had opined that there was no preexisting disability, thus apparently precluding transfer. CRB ruled that it had no jurisdiction over the issues raised on appeal, and affirmed, citing Kuban v. Bridgeport Hospital, 3926 CRB-7-98-6 (September 23, 1999). Supreme Court reversed, holding that procedures attendant to medical panel provision violated respondents’ right not to be deprived of property without due process of law under federal and state constitutions. Court began by dismissing claim of Fund that appeal was moot under § 31-349h, holding instead that any claim eligible for transfer to the Fund before July 1, 1999 might still be the subject of practical relief. Court then held that respondents had protected property interest in their statutory right to transfer claims to fund, which could not be abrogated without due process of law. Cece v. Felix Industries, Inc., 248 Conn. 457 (1999) distinguished. Procedures surrounding medical panel created unacceptable risk of erroneous determination of transfer claim, insofar as parties had no opportunity to object to appointment of medical panel members; statute did not require expert in field of claimant’s injury to be on panel; parties had no chance to review, cross-examine, rebut or object to evidence presented to panel; parties could not review panel’s medical findings following their examination of the claimant; no procedure had been implemented to ensure that panel applied appropriate legal standards governing burden of proof and statutory terms such as “materially and substantially greater;” parties had no opportunity to present argument to panel; and statute made panel’s decision binding, with no right to seek correction of clearly erroneous factual findings or improper applications of the law.

Chappelle v. Manafort Bros., Inc., 4038 CRB-2-99-4 (March 27, 2000), aff’d, 63 Conn. App. 630 (2001), cert. denied, 257 Conn. 911 (2001).

CRB affirmed trial commissioner’s ruling that claimant had previously received compensation for permanent partial impairment to right knee as part of a settlement for injuries sustained in a non-compensable automobile accident. Claimant contended that insufficient evidence existed to establish that he had actually been compensated for the pre-existing 15% disability, but trier was able to reasonably surmise from the evidence that claimant either was paid, or could have been paid, damages for his disability as part of the personal injury settlement.

CRB, citing Kuban v. Bridgeport Hospital, 3926 CRB-7-98-6 (September 23, 1999), refused to reserve question of § 31-349c’s constitutionality to Appellate Court, preferring instead to affirm the trier’s decision. CRB also addressed the Second Injury Fund’s motion to dismiss the appeal for lack of subject matter jurisdiction, stating that the July 1, 1999 deadline in § 31-349h did not foreclose the respondents from appealing the trial commissioner’s denial of their claim for transfer. Supreme Court affirmed CRB’s ruling on § 31-349h issue, citing its reasoning in Giaimo v. New Haven, 257 Conn. 481 (2001). However, Giaimo also required reversal and remand due to unconstitutionality of medical panel procedures that had been applied in the instant case. See also, Zeoli, § 31-324.

CRB affirmed trial commissioner’s denial of respondents’ request to transfer pursuant to § 31-349. Initial notice of December 1995 did not include $2,000 filing fee. Later notice of November 4, 1997 was over three years after the date of injury, and thus was untimely pursuant to § 31-349 as amended by Public Act 95-277. Respondents failed to demonstrate impossibility of timely notice here, as they had approximately nine months following the effective date of P.A. 95-277 to comply with the new law.

Kuban v. Bridgeport Hospital, 3926 CRB-4-98-11 (September 23, 1999), appeal dismissed, A.C. 20100 (January 5, 2000).

CRB declined request of respondents to reserve case for determination of Appellate Court, but affirmed trier’s decision. Issue concerned the constitutionality of the medical panel provision in § 31-349c, which CRB did not have jurisdiction to substantively address. Panel discussed the unwillingness of the Supreme Court in Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282 (1997), to address validity of § 31-349c absent an adequate factual record. Panel also discussed the meaning of the July 1, 1999 “eligibility for transfer” deadline in § 31-349(f), opining that it merely requires the employer or insurer to complete all requirements for transfer that are within its control. See also, Kuban, § 31-278, § 31-324.

CRB affirmed trial commissioner’s conclusion that, for the purposes of determining the 104 weeks of disability pursuant to § 31-349, claimant was not disabled from the time that he returned to full duty through the date of maximum medical improvement. Claimant was working eight hour days performing his regular job duties without restrictions, and the trier specifically found that during the period in question, he had no medical or physical limitations or impairments.

CRB affirmed trial commissioner’s denial of respondents’ request to transfer pursuant to § 31-349. Initial 1994 notice was too early under version of § 31-349 then in effect, and the second notice on June 30, 1995 (though arguably timely as an initial notice) must fail due to absence of re-notice as required by P.A. 95-277. The respondents argued that the Fund did not object to the defective initial notice in 1994 and was not prejudiced by the defect of its being filed too early. Board explained that § 31-349 time limitations must be strictly complied with, and Fund may not waive these statutory requirements.

CRB explained that P.A. 95-277 § 3(b) is only retroactive insofar as it applied to all pending cases effective on July 1, 1995. An injury occurring in May 1992 is not implicated by those notice provisions, as three years would have elapsed before the amendment’s July 1995 effective date. Audi v. Blakeslee Arpaia Chapman, 3418 CRB-3-96-9 (August 4, 1997), distinguished. Commissioner’s dismissal of claim for failure to file timely notice affirmed, as CRB declined to reverse finding that claimant was disabled beginning on the day following his injury instead of the day he first visited a doctor. Respondents’ notice was thus filed two days late under § 31-349. Appellate Court disagreed with CRB’s reasoning regarding timeliness of notice, holding that retroactive application of P.A. 95-277, § 3(b) extended time for filing notice of intent to transfer. However, CRB’s ultimate holding was affirmed, as respondents did not fall within exemption for payment of $2000 notification fee, nor was it impossible to make such payment after P.A. 95-277 took effect.

CRB affirmed trier’s decision that respondents’ in-person presentation of re-notice to the Fund on September 29, 1995 substantially complied with § 31-349(e). (Santos, C., concurring) As an alternative ground for affirming the trial commissioner’s decision, CRB should also find that respondents complied with § 31-349(e) by sending the re-notice via certified mail on September 29, 1995 which was received by the Fund on October 2, 1995.

Respondents provided re-notice to the Fund via certified mail, which was received by the Fund on Monday, October 2, 1995. Section 31-349(e) requires re-notice by October 1, 1995. Board held that in order to be timely, re-notice must be received by the Fund prior to October 1, 1995. (Santos, C., dissenting) Because October 1, 1995 was a Sunday, notice received by the Fund on the next business day should be considered to be timely notice. Alternatively, notice sent by certified mail prior to October 1, 1995 should be deemed timely notice.

Trial commissioner found that respondent insurer failed to re-notify the Fund of a pending timely claim pursuant to Public Act 95-277, § 3(e). CRB remanded matter to trial commissioner to determine whether insurer had filed a timely new notice under § 3(b) of that act.

Trial commissioner found that a controverted issue existed regarding whether claimant’s injury qualified for transfer to the Fund pursuant to § 31-349, and thus submitted the issue to the medical panel in accordance with § 31-349c. In support of their appeal, respondents contend that § 31-349c violates their due process rights under the Connecticut constitution and the United States constitution, and is also unconstitutionally vague. Respondents raised only constitutional issues on appeal, which the CRB may not decide. Board affirmed trial commissioner’s decision, as the parties did not dispute his findings, including that the claimant’s second injury occurred prior to July 1, 1995, and that a controverted issue existed regarding whether the claimant had a preexisting condition. Supreme Court reversed on ground that medical panel procedures were unconstitutional, as explained in Giaimo v. New Haven, 257 Conn. 481 (2001). Prior decision in Genden, 3419 CRB-5-96-9 (June 4, 1998), § 31-278.

CRB affirmed trial commissioner’s decision to transfer all liability for claimant’s injuries to Second Injury Fund in light of Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635 (1999). Timely notice provided by claimant’s second employer satisfied a subsequent employer’s notice requirement under § 31-349, where both employers shared liability for the same injury period, and the Fund was given the necessary opportunity to investigate the claim. Also, claimant’s doctor testified that she indeed suffered from a pre-existing disability prior to her 1985 traumatic right hand injury, and that she suffered further exposure after returning to work in 1996. Medically, case qualified for transfer to Fund.

CRB affirmed trier’s dismissal of request to transfer liability to Second Injury Fund. Untimely notice under previous version of § 31-349 (filed more than one year before 104th week of disability) could not be cured by the enactment of P.A. 95-277 § 3(b); insufficient notice remained insufficient, and renotification provision was not applicable. Respondents were not relieved of responsibility for failing to know about 1993 change in § 31-349 just because this Commission did not include the revised statute in Supplement No. 1 to Bulletin No. 42. Respondents also failed to meet initial notice requirement of § 31-349(b), as $2,000 notification fee was not provided to Fund until after the 90th day following the 104th week of disability had elapsed. “Substantial compliance” not applicable, as fee is an integral element of the statutory notice requirement.

CRB lacks jurisdiction over appeal taken directly from report of § 31-349c medical panel, as § 31-301(f) only allows appeals from awards, decisions on motions, or § 31-299b orders. Respondents argued that its arguments went beyond the scope of the report itself, and thus were within board’s jurisdiction. CRB characterized report at this stage as a “mere piece of evidence,” and noted that there were no factual findings or legal conclusions to review. Board also reiterated its lack of jurisdiction to deem a statute unconstitutional. Panel then stated that the best interpretation of § 31-349c in light of constitutional guarantees of due process was to define “previous disability” more narrowly than is suggested by Olsen v. Dubois Chemicals, Inc., 3385 CRB-7-96-7 (December 29, 1997). Facts and legal conclusions regarding existence of second injury should not be delegated to medical panel as part of the “previous disability” determination. Procedure for processing case outlined. See also, Fish, § 31-278.

Respondents filed notice too early under version of § 31-349 in effect at time of injury (1994). They then filed a re-notification in September 1995 without including any attachments. Held: § 31-349 notice requirements not satisfied. 1995 letter could not be construed as a completion of notice under the prior version of § 31-349, as Public Act 95-277 had pre-emptive effect on pending cases.

CRB affirmed the trial commissioner’s conclusion that the respondents failed to provide proper notice of intent to transfer where a voluntary agreement was not provided to the Fund in a reasonable amount of time. Moreover, as the respondents filed their re-notification on October 2, 1995, their request to transfer would fail under § 31-349(e), which requires re-notification prior to October 1, 1995.

Karutz v. Feinstein & Herman, 3698 CRB-7-97-8 (December 18, 1998), rev’d, 59 Conn. App. 565 (2000), cert. denied, 254 Conn. 949 (2000).

CRB affirmed trial commissioner’s finding that notice to Fund was timely. The trier found that the claimant’s disability period did not begin on the date of injury, even though she was suffering from persistent pain and was treating with a physician, as she was able to perform her regular job duties, was paid her regular salary, and lost no time from work. Board explained that “disability” refers to medical impairment pursuant to Innocent v. St. Joseph’s Medical Center, 243 Conn. 513 (1998), but the commissioner did not err in gauging the existence of disability on the medical opinions concerning the claimant’s ability to work. Absence of medical restrictions is material to determination that impairment did not exist within meaning of § 31-349. Issue was one of credibility, as it depended on interpretation of medical reports. Reversed and remanded by Appellate Court, which held that board improperly accepted the trier’s conclusion that the claimant’s disability did not commence until she became unable to work. The court stated that “a person can be disabled for the purposes of § 31-349 even though he or she can carry on all the facets of his or her employment. The test is whether a claimant is physically impaired, not whether there exists a de facto inability to earn a wage.” The court held that the trier incorrectly applied the law by basing his finding of periods of disability on the claimant’s ability to perform her job duties rather than on the date of “medical impairment.”

CRB affirmed commissioner’s ruling that the employer was not entitled to reimbursement from the Second Injury Fund for any sums paid to the claimant under § 31-284b after July 1, 1995, the effective date of P.A. 95-277 § 3. See, Badolato v. New Britain, infra.

CRB affirmed trial commissioner’s application of three-year filing deadline for notice to Second Injury Fund to case where injury occurred in 1991, and requirement of P.A. 95-277 was impossible for insurer to satisfy. Legislative decision was made to terminate the viability of certain unperfected claims for transfer, and CRB cannot overturn that policy decision. See also, Bass, § 31-278.

Badolato v. New Britain, 3704 CRB-6-97-10 (November 24, 1998), aff’d, 250 Conn. 753 (1999).

CRB affirmed commissioner’s ruling that P.A. 95-277 § 3 [repealing § 31-349(e)] could be applied retroactively and thus, the legislature repealed § 31-284b(d) by implication. See also, Badolato, § 31-284b.

CRB reversed trier’s conclusion that notice was due to Fund before three years had elapsed from date of injury, as no subordinate findings had been made regarding benefits paid, and the evidence was not clear on that issue. CRB then ruled that “accounting of all benefits paid” did not have to be a separate document from the “employer’s or insurer’s estimate of the reserve amount to ultimate value,” and that the document filed in the instant case contained sufficient information about benefits paid to satisfy § 31-349. See also, Grimme, § 31-301. Factual findings and Appeal procedure.

CRB reversed trial commissioner’s finding that respondent provided timely notice to Second Injury Fund under § 31-349(e). Injury occurred more than three years prior to filing of notice, and there is no implied exception in the statutory language. Also, although re-notification may have been timely provided under P.A. 95-277 § 3(b), the initial notice was not perfected in a timely manner prior to July 1, 1995 because a copy of the agreement or award was not given to the custodian of the Fund. Timely re-notification cannot resurrect late notice. See also, Goubourn, § 31-301-9. Additional evidence.

The trial commissioner did not have jurisdiction to decide whether a preexisting impairment contributed materially and substantially to the claimant’s resulting permanent disability, as P.A. 95-277 § 4(a) made that question the province of the medical panel. See, Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282 (1997). Facts found by the trier also failed to support conclusion that notice was timely filed. CRB remanded case for determination as to whether claimant had medical restrictions during entire period between injury and Fund’s receipt of notice, as per Innocent v. St. Joseph’s Medical Center, 243 Conn. 513 (1998).

CRB affirmed the trial commissioner’s determination that the respondents had failed to file proper notice of intent to transfer pursuant to § 31-349 where respondents had failed to include a copy of an approved voluntary agreement. The respondents did not allege that obtaining a voluntary agreement was in any way impossible.

CRB reversed trial commissioner’s decision denying Fund’s request to apportion liability for § 31-308(a) benefits where claimant suffered four separate injuries, the last resulting in a Fund transfer. Appellate Court decision in Fimiani v. Star Gallo Distributors, Inc., 48 Conn. App. 474 (1998), requires Fund to be allowed apportionment of liability where prior compensable injury contributes to disability and factual findings support apportionment. Remanded.

The CRB affirmed the trial commissioner’s decision regarding the calculation of 104 weeks of disability payments for two separate shoulder injuries which occurred from a single accident. Where temporary total disability was caused by both injuries, those payments were properly added to the calculation of the 104 weeks for both injuries. However, the permanent partial disability payments attributable to each injury applied only to that injury alone.

Trial commissioner dismissed claim for transfer, as respondents’ re-notification of intent to pursue transfer was not received by Second Injury Fund until October 2, 1995, one day late under § 31-349(e). CRB affirmed. Notice provisions must be strictly construed. Practice Book § 4010 inapplicable. (Metro, C., dissenting) Respondents mailed notice to Fund on September 26, 1995, and should not be penalized for the vagaries of U.S. Postal delivery.

Section 31-349(e) clearly required a respondent who had notified the Second Injury Fund of intent to transfer a claim prior to July 1, 1995, to re-notify the Fund of its intent to transfer the claim by October 1, 1995. No other reading of the statute is possible, especially in light of Hall v. Gilbert & Bennett Mfg., Inc., 241 Conn. 282 (1997), and Audi v. Blakeslee Arpaia Chapman, 3418 CRB-3-96-9 (August 4, 1997). Trial commissioner’s decision reversed.

CRB reversed the trial commissioner’s determination that the respondents had filed a timely notice of intent to transfer pursuant to § 31-349. Specifically, the time period during which the claimant had returned to light duty work at full pay should have been included in the calculation of the 104-week notice period.

In light of Supreme Court decision in Innocent v. St. Joseph’s Medical Center, CRB affirmed trial commissioner’s dismissal of request for transfer to Second Injury Fund. One hundred and four week calculation under § 31-349 includes time period when claimant was medically disabled, but not necessarily entitled to benefits. Evidence supports commissioner’s finding that claimant was disabled at relevant time.

Trial commissioner denied Form 36 on grounds that respondents were unable to prove that previous voluntary agreements established prior permanent partial disability or that compensation had been made for 1977 and 1981 injuries. CRB reversed. Approved voluntary agreement in record assigned claimant 27.5% permanent partial disability of back for 1981 injury, with maximum improvement in 1983. 1994 voluntary agreement for 27.5% permanent partial disability of back on account of 1992 injury would be compensating claimant for the same percentage of permanent partial disability a second time, even if the claimant had experienced an improvement in his physical condition during the intervening 11-year period between injuries. As long as compensation is paid or payable on account of a prior disability that materially worsens the disability caused by a second injury, it should be deducted from the benefits payable for the second disability.

CRB affirmed trier’s decision to refer case to Chairman for assignment to medical panel. Hall v. Gilbert & Bennett Mfg. Co., Inc., 241 Conn. 282 (1997), held that P.A. 95-277 § 4(a) applies to all pending cases as of July 1, 1995, which includes this one. Insurer argued that key issue was not existence of previous disability, but date of injury and timeliness of notice. CRB disagreed, as the issue of whether a second injury was a new injury or the recurrence of a prior injury was, in reality, a question regarding previous disability properly referable to medical panel.

Thompson v. Roach, 3382 CRB-7-96-7 (December 29, 1997), aff’d, 52 Conn. App. 819 (1999).

Respondent notified Fund of intent to transfer claim prior to expiration of notice period, but informed the Fund that no voluntary agreement had been signed and that it wanted to avoid jeopardizing the potential transfer of this case. Some time later, the voluntary agreement was executed and quickly forwarded to the Fund. Commissioner found insurer had acted reasonably under the circumstances, and allowed transfer of claim. CRB affirmed, citing Marano v. Timex Corporation, 14 Conn. Workers’ Comp. Rev. Op. 207, 1774 CRB-5-93-7 (July 27, 1995), and Jaworski v. A.B. Chance Co., 3006 CRB-3-95-2 (January 6, 1997). Although lack of prejudice to Fund is irrelevant if notice could have been timely filed, it is relevant to a determination of whether a late submission should be allowed where the facts of the case prevented timely notice. Trier made appropriate findings here. Appellate Court affirmed CRB decision, noting that the “strict compliance” requirement with respect to § 31-349 presumes the possibility of compliance.

CRB affirmed the trial commissioner’s decision that the respondents failed to provide timely notice pursuant to § 31-349. The respondents contend that it was impossible to provide timely notice under § 31-349 because they had contested the underlying claim for approximately nine years. The respondents’ contention that notice to the Fund could not be filed until a Finding and Award was issued is without merit, as timely notice could have been filed which would have preserved the respondents’ request to transfer until an award was issued or a voluntary agreement was reached. See also, Muldoon, § 31-301. Factual findings.

Trier held that Second Injury Fund should assume liability for the claim of a claimant who was totally disabled because of the joint effect of a compensable shoulder injury and a previous knee replacement that resulted from a congenital problem. CRB reversed. Left shoulder condition was not made worse by previous knee disability; in fact, shoulder condition would be 45% with or without the knee condition. No legal relationship between those two injuries within the meaning of § 31-349; Lopez v. Diversified Concrete, 15 Conn. Workers’ Comp. Rev. Op. 216, 2142 CRB-6-94-9 (April 29, 1996), distinguished.

CRB affirmed trial commissioner’s determination that claim did not qualify for transfer under § 31-349. The record supports the trial commissioner’s determination that the claimant did not have a preexisting impairment of his left knee which caused his injury to result in a disability which was materially and substantially greater. Whether or not a particular condition constitutes a physical impairment is a factual decision for the trial commissioner. VACATED: (December 5, 1997) CRB vacated the September 16, 1997 decision because jurisdiction over the issue of whether the claim medically qualified for transfer belonged with the medical panel rather than with the trial commissioner pursuant to § 31-349 C.G.S. as amended by P.A. 95-277, § 4(a). See also, Rulewicz, § 31-300.

The Fund appealed the trial commissioner’s decision regarding transfer pursuant to § 31-349. The CRB held that the issue of transfer pursuant to § 31-349 was under the jurisdiction of the medical panel created by P.A. 95-277, § 4(a) effective July 1, 1995. Specifically, where a final decision regarding transfer has not been issued as of July 1, 1995, the issue is deemed “pending” and must be referred to the medical panel. The CRB remanded the matter to the trial commissioner for a finding regarding the date of injury and a determination of whether the notice was timely pursuant to § 31-349.

Follows Soto v. Swank Crestline, Inc., in making § 4(a) of P.A. 95-277 applicable to a transfer case that had been heard, but not decided by July 1, 1995. See also, Ridente, § 31-300.

CRB affirmed the trial commissioner’s determination that the respondent failed to provide timely notice to the Fund of its request to transfer liability pursuant to § 31-349. The respondent argued that because the claimant signed a stipulation which stated that the claimant was not entitled to receive benefits during a certain period, therefore said period should not be counted in the 104-week calculation under § 31-349. The CRB held that the trial commissioner was not required to omit said period in calculating the 104-week period merely because the claimant had signed a stipulation which stated that she was not disabled during that period. Rather, the trial commissioner was entitled to review the record and determine whether the claimant was actually disabled.

Respondent filed initial untimely notice to Fund under the version of § 31-349 in effect before the 1995 legislative amendment. Upon the passage of P.A. 95-277, § 3, the respondent filed both re-notice under § 3(e) and notice under § 3(b) of the P.A.. Held: the filing of otherwise timely re-notice does not cure the previous late filing of notice, as § 3(e) concerns the need to reaffirm one’s intent to seek transfer of claims that were already properly notified to the Fund. However, § 3(b) pertains to initial notice to the Fund, and is completely separate from the previous version of § 31-349. By its terms, the statute potentially may apply to any claim. As the claimant had not received 104 weeks of disability benefits, the three-calendar-year provision in § 3(b) applied to this case. Notice was timely filed under that statute. Case remanded for further proceedings.

Supreme Court ruling in Hall v. Gilbert & Bennett Mfg. Co., Inc., 241 Conn. 282 (1997), makes P.A. 95-277, § 4(a) retroactively applicable to all pending transfer claims. “Pending” means any case that has not yet reached final judgment, according to law. Even thought the last formal hearing here was held before July 1, 1995, the trier’s decision was pending after that date, and is still not a final judgment. Thus, the trier’s decision on transfer was vacated. Transfer issue must be presented to medical panel. See also, Soto, § 31-300.

Doctor’s testimony that claimant had a latent predisposition to rheumatoid arthritis did not require transfer to the Fund. Appellate Court decision in Rowe v. Plastic Design, 37 Conn. App. 131 (1995), explains that a claimant must suffer from a quantifiable preexisting permanent physical impairment rather than a latent condition that has not yet manifested itself. CRB also cited Staton v. Automotive Controls, 3035 CRB-3-95-3 (October 30, 1996), where it ruled that a predisposition to diabetes was not a preexisting physical impairment. This case is the same, as claimant was asymptomatic prior to injury. See also, McQuiller, § 31-301. Factual findings.

See, Santora, § 31-298.

See, Lefevre, § 31-299b.

Respondents paid only 75 weeks of benefits prior to issuing notice to Fund, but claimant was at least partially disabled during period of time they were not paying. Irrespective of type of benefits claimant was receiving during post-injury period, notice period continued to run. Only possible conclusion from findings was that notice was untimely by almost one year. Dismissal of transfer request affirmed. See also, Goodridge, § 31-301. Appeal procedure.

Innocent v. St. Joseph’s Medical Center, 3114 CRB-7-95-7 (January 10, 1997), rev’d, 243 Conn. 513 (1998), motion for reargument and reconsideration denied (March 17, 1998).

The Fund contended that the employer’s notice was untimely because the claimant’s period of light duty employment should be counted in determining the 104-week period under § 31-349. CRB found sufficient evidence in the record to support the trial commissioner’s determination that the claimant was not disabled during said period. Specifically, the trial commissioner found that the claimant was returned to work at her former position at her regular rate of pay and thus concluded that she was not entitled to any benefits. CRB distinguished Lillo v. Dichello Distributors, 14 Conn. Workers’ Comp. Rev. Op. 1, 1843 CRB-3-93-9 (April 28, 1995), where the claimant was unable to perform his old job and therefore returned to a totally different position as a janitor at a much reduced rate of pay. Reversed by Supreme Court, which held that the period the claimant returned to work with a medical restriction had to be included in the determination of the 104 weeks, because “disability” refers to medical impairment rather than loss of earning capacity.

Respondents were not apprised of workers’ compensation claim until after claimant had been disabled for almost full 104 weeks, and never had opportunity to file timely notice with the Fund. Trial commissioner’s dismissal of transfer request reversed and remanded to district for determination of whether respondents notified Fund within a reasonable time. (Wilson, C., dissenting) (right to transfer liability to Fund is purely statutory, and notice here was not provided within the prescribed period. Creation of exception to line of cases strictly interpreting notice requirement would be inconsistent with doctrine of stare decisis and unfounded in our law). See also, Jaworski, § 31-294d and § 31-301. Factual findings.

Fimiani v. Star Gallo Distributors, 16 Conn. Workers’ Comp. Rev. Op. 123, 3017 CRB-3-95-2 (November 26, 1996), rev’d, 48 Conn. App. 474 (1998), rev’d, 248 Conn. 635 (1999).

CRB reversed trial commissioner, and held that § 31-349 does not contain any provision for the apportionment of the liability for a second injury when it is transferred to the Second Injury Fund. Rather, § 31-349 specifically provides that when the statutory criteria for transfer have been met, “(t)hereafter all responsibility for compensation and medical treatment shall be with the... fund.” Accordingly, Lundquist, infra this section, reversed. (Wilson, C., dissenting) (the Fund should be allowed to benefit from an agreement to apportion a claim made by two insurance companies during the 104 weeks prior to transfer. Lundquist should be upheld). Reversed by Appellate Court which held that “in cases where an employee has suffered two separate compensable injuries that have contributed to cause a disability, and liability for that disability can be apportioned between the two injuries by the trial commissioner, the apportionment may also be extended to the liability imposed on the fund by § 31-349.” Reversed by Supreme Court which held that § 31-349 requires the employer at the time of the second injury to accept liability for all of the compensation for a period of 104 weeks, and thereafter the Fund is required to accept liability for all of the benefits owed the claimant for the combined injuries.

Claimant stipulated right shoulder/right upper extremity injury claim in 1983, with 25-30% permanent partial disability of shoulder. Claimant also injured right elbow in 1984, which was accepted. Claimant then had cervical disc problems in late 1980s, requiring surgery. Respondents refused to pay for operation. Trial commissioner held that herniated disc was result of compensable injury, and ordered respondents to pay for reasonable medical expenses. Respondents argued to CRB that combination of 1983 stipulation and subsequent injury overpaid claimant, thus entitling them to a credit. Trial commissioner affirmed; although double recovery is prohibited, respondents failed to prove to trial commissioner that claimant had been compensated for same disability. See also, Rodriguez, § 31-308a.

Commissioner ordered transfer of liability to Second Injury Fund based on effect of pre-existing diabetes on disability caused by left arm injury. Reversed. Statute cannot apply without a preexisting permanent physical condition. A review of the medical testimony showed that neither the treating physician nor the internal medicine physician opined that the claimant had clinical diabetes prior to the date of injury that amounted to a permanent partial impairment. Thus, the order to transfer was without evidence.

Hall v. Gilbert & Bennett Mfg. Co., 15 Conn. Workers’ Comp. Rev. Op. 459, 3139 CRB-7-95-8 (September 9, 1996), rev’d, 241 Conn. 282 (1997).

At a formal hearing the trial commissioner ruled that he did not have jurisdiction to decide whether a claim was transferable to the Fund pursuant to § 31-349 because P.A. 95-277 requires that issue to be decided by a medical panel. On appeal, the respondents contend that the provision of a medical panel in P.A. 95-277 is a substantive change which should be applied prospectively, and thus does not apply to the claim at hand. CRB held that P.A. 95-277, § 4 properly applies only to those injured after the adoption of the legislation and not those previously injured. (Wilson, C., dissenting) The state Supreme Court reversed and held that P.A. 95-277, § 4 is procedural rather than substantive and thus should be applied retroactively. See also, Hall, § 31-301.

Hall v. Bilow Builders, 15 Conn. Workers’ Comp. Rev. Op. 391, 2287 CRB-1-95-2 (August 14, 1996), aff’d, 46 Conn. App. 346 (1997).

Uninsured employer cannot transfer liability to Second Injury Fund. See, Champlain v. Parnes, 14 Conn. Workers’ Comp. Rev. Op. 113 (June 2, 1995). Purpose of § 31-349 discussed. Employer’s allegation that it did not receive a statement of assessment under § 31-354 unpersuasive.

Rogers v. Laidlaw Transit, 15 Conn. Workers’ Comp. Rev. Op. 318, 2154 CRB-3-94-9 (June 24, 1996), rev’d, 45 Conn. App. 204 (1997).

Issue of evidentiary sufficiency. See, Rogers, § 31-301. Factual findings.

Commissioner denied transfer to Second Injury Fund where claimant had been permanently blind since childhood in right eye, and compensable injury left him totally blind in left eye. CRB reversed decision: pre-existing visual impairment in right eye combined with second injury to make overall disability much worse. Purpose of § 31-349 is to compensate total incapacity. Claim transferable to Second Injury Fund.

Kelley v. New England Railroad, 15 Conn. Workers’ Comp. Rev. Op. 206, 2274 CRB-2-95-1 (April 23, 1996), rev’d, 45 Conn. App. 448 (1997).

Form 36 retroactively approved effective February 7, 1991; voluntary agreement later set maximum medical improvement date at May 7, 1991. Held, trial commissioner did not err in concluding that 104-week notice period to Second Injury Fund did not include that three-month period. As the fact-finder, she could have determined that claimant was not disabled during that time. Importance of deference to findings reemphasized in Supreme Court’s decision in Six v. Thomas O’Connor & Co., 235 Conn. 790 (1996). Appellate Court reversed on ground that, under Six, period of actual disability controls date notice is due, and the undisputed medical evidence indicated that the claimant was continuously disabled. See also, Kelley, § 31-296.

Trial commissioner reversed; CRB ruled that payments for scarring award pursuant to § 31-308(c) are not part of calculation for 104-week disability period under § 31-349. Disfigurement and incapacity are separate concepts under Workers’ Compensation Act.

Trial commissioner found dyslexia to be preexisting permanent partial impairment. Fund disagreed. Held, this is a factual issue, and medical reports discussing dyslexia could imply that it was a physical impairment, even though its nature was not specifically discussed. Respondents introduced no evidence to dispute that finding, either. (Tracy, C., dissenting) (not enough evidence in record to establish dyslexia as permanent partial impairment; fact that first injury worsens second injury does not a fortiori make it a permanent partial impairment).

See, Lawrence, discussion at § 31-299b.

Lundquist v. Parkway Pavilion, 15 Conn. Workers’ Comp. Rev. Op. 7, 2044 CRB-1-94-5 (November 1, 1995), dismissed for lack of final judgment, A.C. 15412, 15415 (February 22, 1996).

Where claimant suffered two compensable injuries, and 70 percent of the resulting disability was due to the first injury, Second Injury Fund is not required to assume full liability for both injuries. Trial commissioner may apportion liability among two employers under Mund v. Farmer’s Cooperative Savings Bank, 139 Conn. 338 (1952), and such apportionment may extend to Fund. (Miles, C., dissenting) (no provision for apportionment of liability is present in § 31-349; statutory language clear). See also, Lundquist, § 31-299b (not applicable because there are two separate, identifiable injuries). But see, Fimiani, supra. this section.

Claimant injured both elbows in one accident, which were separate and distinct injuries both related to a pre-existing condition. Commissioner ordered transfer to Second Injury Fund after 208 weeks. Affirmed; Abbott, 14 Conn. Workers’ Comp. Rev. Op. 259, 1923 CRB-2-93-12 (August 31, 1995), controls. strong>(Note: Abbott reversed by Appellate Court at 43 Conn. App. 737 (1996)).

Decedent suffered compensable back and neck injuries; commissioner ordered claim transferred to Second Injury Fund after 208 weeks. Held, claimant had suffered distinct and unrelated injuries from the same accident, both related to a pre-existing condition. Lovett v. Atlas Truck Leasing, 171 Conn. 577 (1976), is directly on point; in this case, “disability” as used in statute refers to each individual injury for purpose of calculating 104-week period. Appellate Court reversed CRB holding neither Lovett nor Hernandez v. Gerber Group, 222 Conn. 78 (1992) are dispositive of the issue here presented. Appellate Court held “awarding separate 104 week periods for each disabled body part that had a preexisting injury is contrary to the policy behind the fund”.

Marano v. Timex Corp., 14 Conn. Workers’ Comp. Rev. Op. 207, 1774 CRB-5-93-7 (July 27, 1995).

Where employer was not presented with a formal claim for benefits until after 104 weeks of disability had passed, and claimant’s retirement was predicated on other medical conditions, employer had no way of knowing that claimant ascribed disability to compensable injury. Thus, compliance with § 31-349 was impossible, and an extension of time is warranted. (Santos, C., dissenting) (no authority to relax notice requirements based on nonfiling of claim).

Claimant failed to sign voluntary agreements, so copy of agreement was not sent to Second Injury Fund until after notice period expired. Held, precedent requires denial of transfer; respondents’ argument that law should not require performance of impossible acts unavailing in light of existing caselaw. (Brouillet, C., concurring) (Majority opinion need not discuss Reising, 13 Conn. Workers’ Comp. Rev. Op. 40 (December 6, 1994); respondents did not demonstrate that compliance with § 31-349 was impossible in this case).

Claimant sustained a second injury which qualified for transfer under § 31-349, however, at time of second injury the employer was uninsured. CRB held that employer could not transfer claim to Fund due to lack of insurance. CRB reversed § 31-349 transfer, and held that commissioner should have applied § 31-355 (which provides that Fund will pay claim where employer unable to pay). (Santos, C., dissenting) (there is no requirement in § 31-349 that the employer be insured. Majority is adding a penalty for non-insurance, namely disallowing transfers under § 31-349, which is not contained in the statutes). See also, Champlain, § 31-355(b).

Commissioner determined that employer was not entitled to credit for percentage of disability attributable to 1989 injury that was the subject of a workers’ compensation claim made in Missouri and settled. Held, definition of “compensation” amended in light of Weinberg v. ARA Vending Co., 223 Conn. 336 (1992), to include any compensation paid for prior disability regardless of its source. That amendment was intended as a clarification, and thus applies to previous injuries. Remanded to determine compensation received for Missouri injury.

Claimant suffered two compensable injuries that equally contributed to his disability. Held, general rule in workers’ compensation law is that employer is liable to fully compensate claimant for full extent of disability regardless of preexisting condition. Levanti v. Dow Chemical Co., 218 Conn. 9, 18 (1991). Hardships caused by that rule have led to enactment of apportionment statutes such as § 31-349 and § 31-299b (held inapplicable here). CRB found that statute did not prevent commissioner from finding that both accidents contributed to cause injury. See, Mund v. Farmer’s Cooperative Savings Bank, 139 Conn. 338 (1952), and held that fifty-fifty apportionment of liability between two insurers was appropriate under the common-law theory in Mund. See also, Jolicoeur, § 31-299b.

Claimant was disabled within meaning of Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382 (1993), during period he did not collect benefits because he failed to search for light duty employment; notice to Fund timely because a finding of no disability for a later period was left unchallenged by Fund in its Motion to Correct. See also, Pereira, § 31-298, and § 31-301(f).

CRB held commissioner’s transfer of back injury to the Fund was in error because there was insufficient evidence to support trier’s determination that claimant suffered from a preexisting condition. Treater testified that claimant’s back injury was made “materially and substantially greater” due to preexisting arthritis caused by an inflammatory bowel disease. Discussion of causation and expert opinions. Treater’s opinion was not reasonable as it was not based upon reasonable probabilities. Remanded for further hearing and new determination on transfer issue.

CRB reversed commissioner’s transfer of second injury to Fund pursuant to § 31-349. Issue was whether employer provided timely notice to Fund of intent to transfer. CRB held that period after second injury, when claimant returned to light duty at lower pay but was medically unable to perform his original job duties, must be included in the 104 week time limit. During that period of light duty, claimant was disabled within meaning of Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 391 (1993).

Insurer argued that 138 weeks of paid benefits for disability to both hands should be split in half for purpose of calculating timely notice. Held, Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382 (1993), controls; first one hundred four weeks of disability matter, and both hands disabled for entire time claimant received benefits. Lovett v. Atlas Truck Leasing, 171 Conn. 577 (1976), is inapposite.

Soares v. Max Services, 13 Conn. Workers’ Comp. Rev. Op. 185, 1718 CRB-1-93-5 (March 21, 1995), aff’d, 42 Conn. App. 147 (1996), cert. denied, 239 Conn. 915 (1996).

Trial commissioner ruled that insurer had failed to perfect notice to Fund by providing a timely copy of the voluntary agreement. Insurer argued that time limit applies only to notice of pending case, not voluntary agreement. Held, Kramer v. General Electric Co., 37 Conn. Sup. 742 (1981) and progeny decided correctly; statute is at best ambiguous for purpose of insurer’s argument, and legislative intent behind statute supports application of time limit to Fund. Also, conduct of Fund in originally accepting claim did not amount to waiver of notice requirement; as Fund is creature of statute, it cannot waive jurisdictional requirements of those statutes. Fund is a government agency for purpose of estoppel; here, respondents could not show that they detrimentally relied on a Fund representative who had authority to accept claim.

No finding that new injury was related to prior injury, so apportionment not required. See also, Knoblaugh, § 31-301. Factual findings, § 31-315, and § 31-349.

See, Izzo, § 31-325.

Six v. Thomas O’Connor & Co., 13 Conn. Workers’ Comp. Rev. Op. 60, 1621 CRB-1-93-1 (December 27, 1994), rev’d, 235 Conn. 790 (1996), motion for reargument denied (May 2, 1996).

Where claimant acknowledged that he was not entitled to certain benefits, weeks of non-entitlement should be subtracted from calculation of weeks of disability for purpose of § 31-349 notice period. Period of actual disability, not receipt of payment, controls notice requirement. CRB remanded to order transfer of claim to Fund. The Supreme Court reversed the CRB’s opinion and held that notice to the Fund was untimely. The Court referred to the trial commissioner’s finding that the claimant received temporary partial benefits from 1/5/88 and an agreement between the parties that “‘there would seem to be no entitlement to any disability benefits from 1-5-88 until 9-25-88’” as supportive of its conclusion that notice to the Fund on April 24, 1990 was untimely. The court opined that notice to the Fund was due either January 5, 1988 or May, 1989, but under either circumstance notice to the Fund in April, 1990 was untimely.

Where employer contested compensability of injury, Second Injury Fund was not sent notice of pending claim until long after 104th week of disability. Held, although statutory requirement to submit copy of nonexistent voluntary agreement might be waived in a case like this, there is no reason why the other requirements of § 31-349(b) could not be complied with, including notice of the claim itself. Claim held not transferable to Fund.

Koehler v. UTC/Pratt & Whitney, 12 Conn. Workers’ Comp. Rev. Op. 407, 1399 CRB-1-92-3 (September 16, 1994), rev’d, in light of Luis dos Santos v. F.D. Rich Construction, A.C. 14067 (December 8, 1995), corrected order issued (January 11, 1996), cert. denied, 236 Conn. 919 (1996).

Transfer denied where respondent fails to timely file a fully executed and approved voluntary agreement. But see, Dos Santos v. F.D. Rich Construction, Inc., 233 Conn. 14 (1995).

Benoit v. UNC Naval Products, 12 Conn. Workers’ Comp. Rev. Op. 315, 1606 CRB-2-92-12 (June 24, 1994).

Statute does not require prior impairment involve the same body part later injured in order to qualify for transfer to the Fund. Medical evidence supports trier’s finding that claimant sustained a permanent injury to her right arm due to carpal tunnel syndrome which was materially and substantially exacerbated by a pre-existing congenital absence of the left hand.

Williams v. Best Cleaners, 12 Conn. Workers’ Comp. Rev. Op. 307, 1460 CRB-1-92-7 (June 17, 1994), rev’d, 235 Conn. 778 (1996), motion for reargument granted, aff’d, 237 Conn. 490 (1996).

CRB previously decided issue presented on appeal and determined claim qualifies medically for a § 31-349 transfer. See, Williams v. Best Cleaners, 8 Conn. Workers’ Comp. Rev. Op. 168, 843 CRD-1-89-3 (October 26, 1990). As there has been no intervening judicial decision, relief sought by the Fund can only be obtained by appealing to the Appellate Court.

Davis v. Norwich, 12 Conn. Workers’ Comp. Rev. Op. 272, 1563 CRB-2-92-11 (June 2, 1994), aff’d, 232 Conn. 311 (1995).

CRB reversed trier’s order directing transfer of dependent widow’s claim for death benefits to the Fund where respondent failed to present a timely notice for transfer of decedent’s claim. CRB held although a dependent’s claim is a separate and distinct claim from the injured worker, § 31-349 contemplates only a single 104 week waiting period for death and disability benefits. See also, Davis, § 31-306.

Loehn v. Vallerie Transportation Service, 12 Conn. Workers’ Comp. Rev. Op. 267, 1544 CRB-7-92-10 (June 2, 1994).

Reversed and remanded. The Fund is a proper party of interest on appeal where trier’s ruling granting respondents’ motion to modify the voluntary agreement adversely affected the Fund. Respondents sought to modify the voluntary agreement in order to make timely an untimely notice for transfer. Trier erred in granting motion to modify, changing the date of maximum medical improvement and ordering transfer of liability to the Fund. See also, Loehn, § 31-315.

Tomkus v. Upjohn Company, 12 Conn. Workers’ Comp. Rev. Op. 182, 1533 CRB-3-92-10 (May 2, 1994).

Second injury fund is liable for payment of scar award where surgical scar was incurred prior to transfer but the award was made after the 104th week of disability or date of transfer. Also cited at Tomkus, § 31-308(c).

Prioleau v. Larosa Construction, 12 Conn. Workers’ Comp. Rev. Op. 140, 1432 CRB-8-92-6 (April 7, 1994).

See, Prioleau, § 31-308(b), § 31-299b and § 31-307.

Civardi v. Norwich, 12 Conn. Workers’ Comp. Rev. Op. 100, 1376 CRB-2-92-1 (February 28, 1994), aff’d, 231 Conn. 287 (1994).

Section 31-284b benefits for government employee do not transfer at the same time indemnity and medical benefits transfer to the Fund. Transfer of § 31-284b benefits may only occur after 104 weeks of total incapacity. See, Civardi, § 31-284b and § 31-308a.

Santos v. F.D. Rich Construction Company, 12 Conn. Workers’ Comp. Rev. Op. 64, 1358 CRD-7-91-12 (February 2, 1994), rev’d, 233 Conn. 14 (1995).

Transfer of liability denied where respondent failed to file both the notice and an approved voluntary agreement within statutorily prescribed time. Second Injury Fund’s letter of acknowledgment and receipt of unsigned and unapproved voluntary agreement fails to satisfy elements of estoppel. Supreme Court reversed CRB and held where employer/insurer unilaterally agree to pay compensation, compensation is paid, and the employee accepts those payments, there is a binding agreement within the meaning of § 31-349 without the employee’s signature or the commissioner’s approval of a voluntary agreement. By filing a copy of the actual voluntary agreement within the time prescribed by statute, the employer’s notice was timely, and transfer should have been granted.

Rowe v. Plastic Design, Inc., 11 Conn. Workers’ Comp. Rev. Op. 213, 1354 CRD-8-91-12 (October 5, 1993), rev’d, 37 Conn. App. 131 (1995).

Where first work related injury results in no permanent partial disability and no permanency rating is given and subsequent second injury was found to be materially and substantially worse as a result of the earlier injury, statutory requirement is satisfied and liability can be transferred to the Second Injury Fund. Reversed on appeal. Appellate Court determined a preexisting physical impairment is a condition precedent to fund liability.

Levasseur v. General Dynamics Corporation/Electric Boat Division, 11 Conn. Workers’ Comp. Rev. Op. 34, 1244 CRD-2-91-6 (February 26, 1993).

Remanded where trier based his decision on transfer of liability on stipulated facts at an informal hearing absent the Second Injury Fund’s consent to the stipulated facts of the other parties. See also, Levasseur, § 31-301. Appeal procedure.

Codding v. Colchester Egg Farms, Inc., 11 Conn. Workers’ Comp. Rev. Op. 4, 1232 CRD-2-91-5 (February 4, 1993).

Remanded as factual findings must be reexamined. Trier found compensability for occupational disease contracted over a 17 year period of employment was a second injury which resulted in a permanent disability materially and substantially greater than that which would have resulted from the second injury alone and apportioned liability for that 17 year period. However, trier also found claimant was self employed prior to that period in the same occupation which sensitized him so that his reaction to the offending producers during the period employed by Colchester Egg Farms in effect was a response to accumulated trauma. CRB held theory of liability inconsistent with conclusion. See also, Codding, § 31-299b and § 31-307.

Houseknecht v. Century Brass Products, 10 Conn. Workers’ Comp. Rev. Op. 80, 1129 CRD-5-90-11 (April 10, 1992).

Reversed. Second Injury Fund is not liable for § 31-284b health insurance premiums prior to the date the Fund receives notice.

Luis v. Frito-Lay, Inc., 10 Conn. Workers’ Comp. Rev. Op. 50, 1089 CRD-2-90-8 (February 6, 1992), rev’d, S.C. 14536 (April 27, 1993).

CRB affirmed trier’s decision that transfer of benefits pursuant to § 31-349(a) does not include § 31-284b benefits as § 31-349(a) only includes transfer of compensation and medical expenses. Potential liability of the Second Injury Fund for § 31-284b benefits is addressed in § 31-284b(d) and § 31-349(b) and (c). Connecticut Supreme Court reversed CRB holding § 31-284b was preempted by ERISA. See note at § 31-284b.

Almeida v. Frito-Lay, Inc., 10 Conn. Workers’ Comp. Rev. Op. 50, 1090 CRD-2-90-8 (February 6, 1992), rev’d, S.C. 14536 (April 27, 1993).

Turcotte v. Frito-Lay, Inc., 10 Conn. Workers’ Comp. Rev. Op. 50, 1091 CRD-2-90-8 (February 6, 1992), rev’d, S.C. 14536 (April 27, 1993).

Keating v. Allegheny Ludlum Steel Corp., 10 Conn. Workers’ Comp. Rev. Op. 28, 1102 CRD-3-90-8 (January 13, 1992).

Remanded as Fund cannot be ordered to pay benefits for period before liability is transferred. See, Haluschak v. J.F. Barrett & Sons, Inc., 9 Conn. Workers’ Comp. Rev. Op. 93, 925 CRD-3-89-10 (March 1, 1991). See also, Keating, § 31-294d and § 31-315.

Vaillancourt v. New Britain Machine, 9 Conn. Workers’ Comp. Rev. Op. 285, 1092 CRD-6-90-8 (December 16, 1991), aff’d, 224 Conn. 382 (1993).

Notice ninety (90) days prior to the expiration of one hundred and four (104) week period by statute refers to weeks of disability. That period shall not be extended to respondents so as to allow the calculation of the net number of weeks of benefits paid to include credit from a third party recovery.

Alger v. Rossi Corporation, 9 Conn. Workers’ Comp. Rev. Op. 261, 1065 CRD-1-90-6 (December 5, 1991).

CRD affirmed trier’s factual finding that claimant’s brain disability was not made materially and substantially greater by claimant’s preexisting condition of alcoholism thereby denying transfer of liability of the S.I.F. See also, Alger, § 31-308(c).

Weinberg v. ARA Vending Company, 9 Conn. Workers’ Comp. Rev. Op. 184, 785 CRD-4-88-11 (August 23, 1991), rev’d, 223 Conn. 336 (1992).

CRD reversed trier’s finding granting claimant 30% permanent partial disability of the back where 20% of that disability was attributed to a pre-existing service related disability for which claimant is receiving compensation from the Veterans Administration. (Arcudi, C., dissenting) Federal criteria for rating disabilities is based on the reduction in the whole person’s earning capacity that results from an injury and is paid for life unlike Connecticut’s Workers’ Compensation Law § 31-308(b) which provides a limited number of weeks for a loss or loss of use of a specific body part. Discussion of terms “disability” and “impairment”, the doctors’ evaluation of impairment is the evidence the commissioner uses in reaching a decision on disability. Discussion of origin and legislative intent of § 31-349 and analysis that a V.A. service connected disability pension is not any compensation benefits payable or paid with respect to the previous disability under our law. Application of other jurisdictions ruling on same issue and findings that V.A. service connected partial disability pensions are not deductible. Supreme Court reversed CRB. Legislative history of § 31-349(a) does not reveal an intent to give the term compensation any meaning other than compensation under the Connecticut Workers’ Compensation Act.

Hernandez v. Gerber Group, 9 Conn. Workers’ Comp. Rev. Op. 143, 913 CRD-4-89-9 (May 24, 1991), rev’d, 222 Conn. 78 (1992).

CRD reversed trier’s order transferring liability to the S.I.F. for claimant’s right leg disability resulting from cardiac catheterization as Lovett v. Atlas Truck Leasing, 171 Conn. 577 (1976) mandates each disability be considered a separate injury. Discussion of personal injury and disability concept. Supreme Court reversed CRB. Supreme Court held CRB’s interpretation of Lovett misplaced. Here the requisite causal linkage between the preexisting heart condition and leg injury was established. Therefore, liability for the leg should have been transferred.

Haluschak v. J.F. Barrett & Sons, Inc., 9 Conn. Workers’ Comp. Rev. Op. 93, 925 CRD-3-89-10 (March 1, 1991).

Where Second Injury Fund enters into an agreement pursuant to § 31-296 without participation of employer and insurer that agreement is binding only upon Second Injury Fund and claimant.

Colas v. Marriott Food Services, 9 Conn. Rev. Op. 86, 939 CRD-7-89-11 (February 26, 1991).

CRD remanded for further proceedings where question of legal causation and medical causation as separate concepts remained unanswered by trier; therefore liability of employer or employers for claimants’ injury or injuries requires determination. See also, Colas, § 31-294c, § 31-298 and § 31-307b.

Cappellino v. Cheshire, 9 Conn. Workers’ Comp. Rev. Op. 49, 919 CRD-5-89-9 (February 4, 1991), aff’d, 27 Conn. App. 699 (1992), aff’d, 226 Conn. 569 (1993).

Second Injury Fund ordered to pay dependent spouse unmatured award for vested specific benefits where voluntary agreement was approved prior to decedent’s death even though specific benefits were interrupted and decedent was collecting temporary total at time of death.

Williams v. Best Cleaners, 8 Conn. Workers’ Comp. Rev. Op. 168, 843 CRD-1-89-3 (October 26, 1990).

There was a sufficient evidentiary basis for the commissioner to conclude claimant had a preexisting permanent physical impairment from smoking and that impairment caused the resulting lung disability to be materially and substantially worse. Remanded to substantiate and make precise orders against the Second Injury Fund including exact date for transfer of liability. See also, Williams, § 31-308(c).

Lathrop v. Kimberly Clark Corp., 8 Conn. Workers’ Comp. Rev. Op. 156, 852 CRD-7-89-4 (September 21, 1990), aff’d, 24 Conn. App. 837 (1991).

Second Injury Fund to accept liability where trial commissioner’s factual finding satisfies requirements of § 31-325 and § 31-349. See, Hehl v. Kimberly Clark Corp., 774 CRD-7-88-10 (February 21, 1990). See also, Lathrop, § 31-301. Factual findings and § 31-325.

Levanti v. Dow Chemical Co., 8 Conn. Workers’ Comp. Rev. Op. 93, 815 CRD-2-89-1 (May 15, 1990), aff’d, 218 Conn. 9 (1991).

Apportionment of liability not applicable. Insurer liable for first 104 weeks of disability even if previous impairments partially contributed to disability. Also an additional 5% permanent partial back disability imposed on a 10% pre-existing permanent partial back disability constitutes a disability which is materially and substantially greater than that which would have resulted from the second injury alone.

Glynn v. Terry Corporation, 8 Conn. Workers’ Comp. Rev. Op. 87, 806 CRD-2-89-1 (May 14, 1990).

Insurer on risk at time of second injury liable for increase in permanent partial disability. See also, Glynn, § 31-307b.

Hehl v. Kimberly Clark Corp., 8 Conn. Workers’ Comp. Rev. Op. 38, 774 CRD-7-88-10 (February 21, 1990).

Second Injury Fund ordered to pay additional permanency award pursuant to § 31-349(a) for an injury previously acknowledged pursuant to § 31-325 where new injuries and additional disability would not have occurred but for repetitive trauma in the workplace.

Rossomondo v. Ridgewood Nurseries, 7 Conn. Workers’ Comp. Rev. Op. 89, 846 CRD-3-89-4 (October 3, 1989).

Section 31-306(b) spousal benefits calculated from date of injury not date of death. See, Funaro v. Hamden, 7 Conn. Workers’ Comp. Rev. Op. 40, 649 CRD-3-87 (July 26, 1989).

Vieta v. Consolidated Cigar, 7 Conn. Workers’ Comp. Rev. Op. 48, 677 CRD-6-87 (August 3, 1989).

Employer liable for separate 104 week benefit period for each injury scheduled or unscheduled that may have arisen from same accident before transferring liability to the Fund. See also, Vieta, § 31-308(b)(c).

Funaro v. Hamden, 7 Conn. Workers’ Comp. Rev. Op. 40, 649 CRD-3-87 (July 26, 1989).

Sec 31-349 contemplates only a single 104 week waiting period for disability and death subsequent to the disability and not two distinct and separate periods.

Heyward v. The Joseph Kelly Co., Inc., 7 Conn. Workers’ Comp. Rev. Op. 30, 635 CRD-3-87 (July 24, 1989).

Employer liable when compensable injury aggravates a pre-existing condition. Remanded for determination of potential Second Injury Fund involvement due to pre-existing condition. See also, Heyward, § 31-307.

Franzese v. Lombard Brothers, 6 Conn. Workers’ Comp. Rev. Op. 109, 585 CRD-5-87 (February 23, 1989).

Remanded for articulation of factual findings to determine on what basis § 31-349 requirements were not met.

Gacso v. Valleries Transportation Service, 6 Conn. Workers’ Comp. Rev. Op. 35, 529 CRD-7-86 (September 30, 1988).

Affirmed the trial commissioner’s conclusion that diabetes which worsened after claimant’s hand injury did not result in additional permanent partial disability of claimant’s hand which could be transferred to Second Injury Fund.

Carpentino v. Perkins Trucking Co., 5 Conn. Workers’ Comp. Rev. Op. 40, 488 CRD-3-86 (April 6, 1988).

Trial commissioner’s decision that liability should not be transferred to Second Injury Fund because claimant’s disability was due to head trauma injury and not carbon monoxide poisoning affirmed.

D’Abbraccio v. Southern Conn. Gas Co., 4 Conn. Workers’ Comp. Rev. Op. 75, 441 CRD-3-86 (May 21, 1987).

Previous existing injury will not result in apportionment.

Kennawi v. Revere Textile Prints, 4 Conn. Workers’ Comp. Rev. Op. 27, 214 CRD-2-83 (March 10, 1987).

Substantiality concept does not apply to the resulting disability. Also 104 week period is to be calculated for each separate injury.

Buikus v. Dunham-Bush, Inc., 3 Conn. Workers’ Comp. Rev. Op. 83, 149 CRD-1-82 (November 10, 1986).

Liability for a physical defect acknowledged under § 31-325 will not be shifted to the Fund for a condition not plainly described.

Kiernan v. Roadway Express, Inc., 3 Conn. Workers’ Comp. Rev. Op. 129, 270 CRD-5-83 (December 23, 1986), no error, 15 Conn. App. 625 (1988), cert. denied, 210 Conn. 801 (1988).

Strict compliance with notice deadline and all procedural requirements of § 31-349 before liability will be transferred to Second Injury Fund.

Fusco v. TRW Geometric Tool, 4 Conn. Workers’ Comp. Rev. Op. 132, 472 CRD-3-86 (December 16, 1987).

Total resultant permanent disability need not be causally related only to the second injury.

Day v. Ross & Roberts, Inc., 4 Conn. Workers’ Comp. Rev. Op. 148, 188 CRD-4-82 (January 27, 1988).

Where claimant had a prior preexisting injury leaving him with a 20% loss of use of his back and sustained second injury leaving him with an additional 10% loss of use of his back, claimant was only entitled to the additional 10%.

Sibley v. New Canaan, 2 Conn. Workers’ Comp. Rev. Op. 118, 209 CRD-7-83 (February 5, 1985).

Claimant must present evidence of impaired earning capacity in order to receive such benefits.

Aurora v. Miami Plumbing & Heating, Inc., 2 Conn. Workers’ Comp. Rev. Op. 113, 238 CRD-7-83 (December 10, 1984), no error, 6 Conn. App. 45 (1986).

Where expert witness testified injury was likely to have resulted in exacerbation of pre-existing condition, testimony was sufficient so as to prove pre-existing condition.

Tusman v. Spiegel & Zemicnik, Inc., 1 Conn. Workers’ Comp. Rev. Op. 153, 63 CRD-3-81 (August 3, 1982), no error, 38 Conn. Sup. 607 (1982).

Disability must exist 104 weeks before transfer of liability to Fund. Also, Fund must be a party to proceedings.

Baez v. Norwalk Housing Authority, 1 Conn. Workers’ Comp. Rev. Op. 36, 16 CRD-7-80 (June 1, 1981).

Calculation of 90 days prior to 104 week period is calculable on a weekly rather than daily basis.

Kramer v. General Electric Co., 1 Conn. Workers’ Comp. Rev. Op. 12, 17 CRD-4-80 (November 13, 1980), aff’d, 37 Conn. Sup. 742 (1981).

Failure to file notice with Second Injury Fund 90 days prior to 104 week period results in non-acceptance of liability.