CASE NO. 1606 CRB-2-92-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 24, 1994
UNC NAVAL PRODUCTS
TRAVELERS INSURANCE CO.
SECOND INJURY FUND
The claimant was represented by Robert Fitzgerald, Esq., 1127 Tolland Turnpike, Suite 101, Manchester, CT 06040, and Asselin & Associates, 1 Courthouse Square, Willimantic, CT 06226 who neither filed a brief nor appeared at oral argument.
The respondents were represented by Janine M. D’Angelo, Esq., Law Offices of Christine L. Harrigan, P.O. Box 9802, New Haven, CT 06536-0802.
The Second Injury Fund was represented by Taka Iwashita, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the December 14, 1992 Finding and Award of the Commissioner for the Second District was heard December 2, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.
JESSE FRANKL, CHAIRMAN. Liability for the claimant’s compensable right arm injury due to carpal tunnel syndrome was transferred to the Second Injury Fund upon the commissioner’s finding that the claimant’s compensable injury resulted in a permanent disability, caused by that injury and her pre-existing congenital absence of the left hand, which is materially and substantially greater than that which would have resulted from the second (compensable) injury alone. On appeal, the Second Injury Fund challenges the factual findings and legal conclusions of the commissioner. We affirm the trial commissioner.
The parties stipulated to the following facts. The claimant has a congenital absence of the left hand. Since April 16, 1984, the claimant was employed by the respondent-employer as an engineering technician. On January 18, 1989, the claimant began experiencing symptoms of pain, tingling and numbness in her right hand, wrist and arm. On January 19, 1989, the claimant was diagnosed with right carpal tunnel syndrome. Because of this work-related injury, the respondents have paid numerous weeks of temporary total disability benefits, with the 104th week of liability having expired on March 9, 1991. The respondents timely notified the Second Injury fund of their claim to transfer liability under Sec. 31-349.
Based on medical reports submitted to the trial commissioner, the commissioner found that the “claimant has suffered a second disability by accident or disease arising out of the course of her 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.” Finding and Award, paragraph II.3. The commissioner therefore concluded that the claimant qualifies under Sec. 31-349 for payment of compensation by the Second Injury Fund and ordered the Second Injury Fund to assume liability for the compensable injury as of March 10, 1991. This appeal by the Second Injury Fund followed.
In order to transfer liability to the Second Injury Fund, it must be shown that “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, [has incurred] a second disability by accident or disease arising out of and in the course of 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 . . . .” General Statutes (Rev. to 1989) Sec. 31-349. In order to apportion compensation liability between an employer and the Second Injury Fund under Sec. 31-349, then, “the pre-existing impairment must contribute materially and substantially to the resulting permanent impairment.” Lovett v. Atlas Truck Leasing, 171 Conn. 577, 583 (1976).
The Second Injury Fund first challenges the commissioner’s finding of a resulting permanent impairment, arguing that there was no medical evidence to support a finding that the claimant is permanently disabled. Yet, in his August 7, 1990 report, Dr. Sultan Ahamed, the claimant’s treating physician, states quite clearly: “[The claimant] is disabled due to carpal tunnel syndrome and right ulnar mononeuropathy . . . . [S]he continues to have pain in her right hand and arm. I feel that the patient will continue to have this pain and will remain disabled permanently. Her condition is worsened by the fact [that] she has congenital absence of the left hand and must use the right hand for all her daily activities.” (Emphasis added.)1 The Second Injury Fund’s appellate challenge to the weight to be accorded to this report must surely fail as “we will not disturb [the commissioner’s] findings when they are dependent on the weight and credibility to be accorded the evidence presented.” Alger v. Rossi Corporation, 9 Conn. Workers’ Comp. Rev. Op. 261, 264, 1065 CRD-1-90-6 (1991). The power and duty of determining the facts rests on the commissioner, the trier of facts; we may not contradict the commissioner’s findings of fact for which there is support in the record. Hernandez v. Gerber Group, 222 Conn. 78, 81-82 n. 3 (1992); Fair v. People’s Savings, 207 Conn. 535, 539 (1988).
The Second Injury Fund next argues that transfer of liability pursuant to Sec. 31-349 was improper because the permanent disability of the body part injured at work was not made materially and substantially greater by a pre-existing impairment in the same body part. Neither the language of Sec. 31-349, its purpose, nor our case law, however, suggests that the prior impairment must involve the same body part later injured in the course of employment. All that is necessary is that the pre-existing impairment combine with the second (workplace) injury and result in a materially and substantially greater disability to the body part affected by the workplace injury. Lovett v. Atlas Trucking Lease, supra. Here, the permanent injury to the claimant’s right arm was materially exacerbated by a pre-existing condition and it therefore qualified for transfer pursuant to Sec. 31-349. Hernandez v. Gerber Group, supra, 85-86.
To conclude otherwise would frustrate the very purpose underlying the establishment of the Second Injury Fund. “The Fund was established to provide disincentives for discrimination against workers with disabilities. This case illustrates the wisdom of the legislature’s policy of requiring the Fund to assume liability for injuries that are causally related to pre-existing disabilities. If persons with [a congenital absence of a hand] are at risk for developing [carpal tunnel syndrome in their other hand], and the Fund did not pay for [that carpal tunnel syndrome], it would be rational for employers to discriminate against workers with [a congenital absence of a hand], and employers who did not so discriminate would be unfairly disadvantaged. That would be precisely the result that the Fund was designed to prevent. A statute is not to be interpreted to thwart its purpose.” (Internal quotation marks omitted.) Id., 86-87; see also Jacques v. H.Q. Penn Machinery Co., 166 Conn. 352, 355-59 (1974).
We, therefore, affirm the trial commissioner and deny the appeal.
Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.
1 In addition to Dr. Ahamed’s report quoted above, the commissioner relied on an October 15, 1991 report by Dr. William Wainwright, an orthopedist who examined the claimant. In that report, Dr. Wainwright opined that the absence of the claimant’s left hand “is a pre-existing condition which makes her symptoms in the right upper extremity materially and substantially greater.” BACK TO TEXT