CASE NO. 1867 CRB-1-93-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 28, 1995
UTC/PRATT & WHITNEY
SECOND INJURY FUND
The pro se claimant did not appear at trial or at oral argument.
The respondents were represented by Steven Ekern, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.
The Second Injury Fund was represented by J. Sarah Posner, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141.
This Petition for Review from the October 5, 1993 Finding and Award of the Commissioner acting for the First District was heard October 7, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Michael S. Miles.
JESSE M. FRANKL, CHAIRMAN. The respondent employer and insurer have petitioned for review from the October 5, 1993 Finding and Award of the commissioner for the First District. They argue on appeal that the commissioner improperly ruled that liability for the claimant’s injuries was not transferable to the Second Injury Fund pursuant to § 31-325 C.G.S. We reverse the decision of the trial commissioner.
The claimant suffered a left knee strain on September 17, 1991, for which a voluntary agreement was approved on July 21, 1992. A Certificate of Acknowledgment of Physical Defect was approved on July 5, 1991 noting left knee osteoarthritis, and the respondent insurer sought to transfer liability to the Second Injury Fund pursuant to § 31-325 or § 31-349 C.G.S. The commissioner found that the medical evidence established that the pre-existing condition worsened the severity of the compensable injury, and found that liability was transferable under § 31-349. The respondents have appealed the commissioner’s failure to rule that § 31-325 was applicable as well.
Section 31-349(a) entitles an employer to transfer liability when “an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone.” Under § 31-349(b), the employer is ultimately responsible for the first 104 weeks of disability payments.
Where a validly executed acknowledgment of physical condition is in effect, as one was in this case, § 31-325 declares that “the rights and liabilities of the parties to the acknowledgment as to injuries arising out of and in the course of the employment and within the terms of the acknowledgment shall be as provided by section 31-349.” Section 31-349(d), in turn, provides that claims for compensation “which would be payable except for the execution of the acknowledgment” shall be paid entirely out of the Second Injury Fund, thus bypassing the 104-week provision of § 31-349(b). The question we must answer here is, under the facts found, whether the commissioner could have applied §31-349(a) without applying § 31-325 and § 31-349(d) as well.
There is no dispute that the commissioner found credible a medical report that stated that the claimant’s pre-existing condition of left knee osteoarthritis caused the compensable injury to be worse than it would have without said condition. This finding provided the factual basis for the commissioner’s transfer of liability under § 31-349(a). In order for that section to be applicable, the prior condition had to have made the permanent disability materially and substantially greater than the second injury alone would have. We must assume that such was the case here.
However, we are still left with the language in §31-325 stating that “[n]o acknowledgment shall be a bar to a claim by the person signing it . . . for compensation for any injury arising out of and in the course of his employment . . . which injury shall not be found to be attributable in a material degree to the particular condition described in the acknowledgment.” (Emphasis added.) This provision defines which injuries are not within the scope of an acknowledgment. Although we recognize that the language of § 31-349(a) focuses on the claimant’s disability, the commissioner specifically found credible the medical report stating that the claimant’s pre-existing condition caused the injury to be worse than it otherwise would have. The crux of this uncontested finding is that the osteoarthritis contributed not only to the claimant’s disability, but to the actual injury as well. Therefore, the claimant’s injury itself was within the scope of the acknowledgment, and the commissioner should have applied § 31-325 and § 31-349(d), which in this case protects the respondent insurer from any liability for the payment of benefits.
The trial commissioner is reversed, and the case is remanded for the entry of an order consistent with this opinion.
Commissioners Angelo L. dos Santos and Michael S. Miles concur.