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Rowe v. Plastic Design, Inc. et al.

CASE NO. 1354 CRD-8-91-12

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

OCTOBER 5, 1993

GERALD ROWE

CLAIMANT-APPELLEE

v.

PLASTIC DESIGN, INC.

EMPLOYER

and

F.B. HALL OF CONNECTICUT, INC.

INSURER

RESPONDENT-APPELLEES

and

MANCHESTER MOLDING COMPANY

EMPLOYER

and

ST. PAUL FIRE AND MARINE INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

and

MONTSANTO COMPANY

EMPLOYER

and

CIGNA

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Katherine Delisle, Esq., P.O. Box 617, Niantic, CT 06357 who did not appear at oral argument and did not file a brief.

The respondents-appellees Plastic Design, Inc. and F.B. Hall of Connecticut, Inc. were represented by Angelo Sevarino, Esq., 805 Farmington Avenue, West Hartford, CT 06119 who did not appear at oral argument and did not file a brief. The respondents-appellees Manchester Molding Company and St. Paul Fire and Marine Insurance Company were represented by David R. Bull, Esq., Chabot and Breen, Nine Washington Avenue, P.O. Box 5035, Hamden, CT 06518. The respondents-appellees Montsanto Company and CIGNA were represented by David Schoolcraft, Esq., 207 Main Street, Hartford, CT 06106 who did not appear at oral argument and did not file a brief. The respondent-appellant Second Injury Fund was represented by Brewster Blackall, Esq. and Loida John, Esq., Assistant Attorneys General, 55 Elm Street, P.O. Box 120, Hartford, CT 06101-0120.

This Petition for Review from the December 2, 1991 Finding and Award of the Commissioner for the Eighth District was heard November 20, 1992 before a Compenastion Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners John A. Arcudi and Frank J. Verrilli.

OPINION

JESSE FRANKL, CHAIRMAN. The issue presented by this appeal is whether liability for a subsequent work-related injury can be transferred to the Second Injury Fund pursuant to General Statutes (Rev. to 1985) Sec. 31-3491 where the claimant’s prior work-related injury resulted in no permanent partial disability but where the second injury was materially and substantially worse as a result of the earlier injury. We conclude that the statutory requirement that the prior injury be a “permanent partial impairment” is satisfied where it is found that the second injury was materially and substantially worse as a result of the first injury even though no permanency rating is given to the first injury.

The following facts are relevant to this appeal. The claimant sustained three separate and distinct injuries to his back. The first injury occurred on March 21, 1985 while the claimant was employed by Montsanto Company (Montsanto). Following the injury, the claimant was out of work for six to nine weeks. Montsanto’s workers’ compensation insurer made certain payments to the claimant and to his medical providers. He returned to work at Montsanto without further problems. “[A]t the time that [the] claimant left the employ of Montsanto [in 1986], he had no permanent partial disability of his back.” Finding and Award, paragraph 32.

In 1986, the claimant left Montsanto to work with Manchester Molding Company (Manchester). On March 17, 1986, while employed by Manchester, the claimant sustained a second back injury. A voluntary agreement was issued by Manchester’s insurer and approved by the commissioner on May 13, 1986, establishing a weekly compensation rate and awarding the claimant specific indemnity benefits for a permanent partial disability of ten percent of the back. When the claimant left the employ of Manchester, he exhibited ongoing and continuing back problems.

In January, 1987, the claimant started his employment with Plastic Design, Inc. (Plastic). On April 11, 1988, the claimant again injured his back. He was found to be totally disabled as a result of the injury from November 28, 1988 to February 2, 1989. Plastic and its insurer were ordered to pay weekly benefits for that period.

As a result of all three injuries, the claimant sustained a present total of twenty-five percent permanent partial disability of the low back. Responsibility for the additional fifteen percent permanent disability of the back was apportioned as follows: an additional ten percent to Manchester and its insurer; five percent to Plastic and its insurer. Liability for medical bills incurred by the claimant in connection with treatment for his injuries was also apportioned between the respective respondents in the same eighty percent twenty percent ratio.

Finally, the trial commissioner found “that the March 17, [1986] injury (Manchester) was materially and substantially worse as a result of the earlier 1985 (Montsanto) injury” and ordered the Second Injury Fund to accept liability for all benefits due to the claimant for the March 17, 1986 injury upon satisfactory proof that Manchester’s insurer has paid 104 weeks of benefits to the claimant. Finding and Award, paragraph 412. It is this finding and conclusion regarding liability for the 1986 injury which is challenged by the Second Injury Fund in this appeal.

The legislature’s remedial purpose in enacting Sec. 31-349 is well established. “To prevent discrimination against handicapped workers, while providing the benefits of [workers’] compensation to such workers, virtually every state has enacted some form of second injury fund legislation . . . . Such legislation is also designed to relieve employers from the hardship of liability for those consequences of compensable injury not attributable to their employment.” (Citations omitted.) Jacques v. H.O. Penn Machinery Co., 166 Conn. 352, 355-56 (1974). Under the Connecticut Second Injury Fund statute, “[i]f an employee who has . . . [a] permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone,” the employer’s obligation is limited to the first 104 weeks of the employee’s disability. (Emphasis added.) General Statutes Sec. 31-349. Thereafter, liability for all compensation for the injury shifts to the Second Injury Fund.

The term, “permanent physical impairment,” is not defined in the statute. Jacques v. H.O. Penn Machinery Co., supra, 358. Nor is the statute’s legislative history instructive as to the meaning of the phrase “permanent physical impairment.” Id., 359 no. 3. Our case law, however, has established that, in order to qualify, a prior injury need not be that it manifested itself so as to be a hinderance to obtaining employment or that it came to the attention of the employer. Id., 359-62. Rather, the case law supports the conclusion that it is the causal linkage between the pre-existing disability and the subsequent injury that is the necessary prerequisite to the assignment of liability for the subsequent injury to the Second Injury Fund. See Hernandez v. Gerber Group, 222 Conn. 78, 86 (1992); Levanti v. Dow Chemical Co., 218 Conn. 9, 17 (1991). The Second Injury Fund’s contention that the prior injury must have resulted in or must have been capable of being assigned a permanency rating in order to transfer liability to the Fund upon a subsequent injury finds no support in our case law. A permanent partial disability sufficient to qualify for an award of specific indemnity benefits is not required to meet the permanency requirement of Sec. 31-349. The requirement of a pre-existing permanent physical impairment in Sec. 31-349 is met where it can be said that the pre-existing impairment has contributed materially and substantially to the resulting permanent disability. Under such circumstances, the requisite permanency of the prior injury is evident from its causal role in producing the subsequent injury. Any other conclusions would thwart the purpose of the Second Injury Fund statute. See Hernandez v. Gerber Group, supra, 86-87.

The Second Injury Fund further contends that there is no evidence in the present case that the second injury when combined with the prior injury resulted in a disability which was materially and substantially greater than what would have resulted from the second injury alone. We disagree.

“Whether a pre-existing disability combines with a subsequent work related disability to produce a permanent physical impairment materially and substantially greater than that which would have resulted from the subsequent work injury alone is a question of fact to be determined by the trial commissioner . . . . As with other conclusions based on factual findings, our appellate inquiry is limited to determine whether there was evidence to support the trier’s conclusion and whether the conclusion drawn was based on unreasonable or impermissible factual inferences or contrary to law . . . . Further we will not disturb his findings when they are dependent on the weight and credibility to be accorded the evidence presented.” (Citations omitted.) Alger v. Rossi Corporation, 9 Conn. Workers’ Comp. Rev. Op. 261, 264, 1065 CRD-1-90-6 (1991).

The Second Injury Fund relies on (1) the evaluation by Dr. John S. Goetcheus which concludes that the claimant was left with no permanent impairment following the March 21, 1985 injury and (2) the fact that the trial commissioner dismissed the claim against Montsanto for permanent partial disability, to support its contention that the commissioner could not have logically and legally transferred liability to the Second Injury Fund for the March 17, 1986 injury. Yet, the commissioner also noted the opinion of Dr. Alan Goodman who believed that “[a]fter the first injury the effect of each subsequent injury was materially and substantially greater because of the fact that the patient had been previously injured” and specifically found that “the claimant has sustained a present total of twenty-five percent (25%) of the low back as a result of all three of said injuries . . . .” Other medical providers, as well, opined that the claimant’s recovery from the first injury was incomplete and contributed to his subsequent injury.

Thus, the trial commissioner’s finding that the March 17, 1986 injury was materially and substantially worse as a result of the earlier 1985 injury was amply supported by the evidence. We, therefore, affirm the trial commissioner and deny the appeal.

Commissioners John A. Arcudi and Frank J. Verrilli concur.

1 At the time of the claimant’s second injury, General Statutes (Rev. to 1985) Sec. 31-349 provided in pertinent part: “The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom. If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability . . . notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes.”

Although altered in form, the substance of the quoted portion of Sec. 31-349 remains in the statute today. BACK TO TEXT

2 In his Finding and Award, the commissioner “also found that the latest 1988 (Plastic) injury was made materially and substantially worse as a result of both prior (1985 and 1986) injuries.” Finding and Award, paragraph 42. Prior to the issuance of the Finding and Award, however, the Second Injury Fund accepted transfer of liability for the 1988 injury, and therefore the latest (1988) injury is not involved in this appeal. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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