CASE NO. 1990 CRB-1-94-3
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 6, 1995
MAL TOOL & ENGINEERING
SECOND INJURY FUND
The claimant was not represented at oral argument or at the formal hearing that resulted in the award on appeal here. At trial, she was represented by Jefferson D. Jelly, Esq., 15 North Main St., P. O. Box 270697, West Hartford, CT 06127-0697.
The respondent was represented by Booth M. Kelly, Jr., Esq., Murphy & Beane, 2 Union Plaza, P. O. Box 590, New London, CT 06320.
The Second Injury Fund was represented by Nancy R. Sussman, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the March 8, 1994 Finding and Award of the Commissioner acting for the First District was heard January 27, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and Amado J. Vargas.
JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the Finding and Award of the Commissioner for the First District. He found that the respondent could not transfer liability for the claimant’s injuries to her right and left elbows until a total of 208 weeks of payments were made, corresponding to 104 weeks for each elbow. The respondent claims that the commissioner improperly applied § 31-349 C.G.S. by requiring more than 104 weeks of disability to be paid before transfer. We affirm the trial commissioner’s decision.
The trial commissioner found that the claimant injured both her left and right elbows on March 8, 1990, which injuries were accepted by voluntary agreement. The commissioner found that a pre-existing condition had materially and substantially contributed to the disability resulting from these injuries, and that they were separate and distinct, although they arose from the same accident. He determined that the injuries should be treated separately for § 31-349 transfer purposes, and ordered said transfer of liability to take place after the payment of 104 weeks for each separate injury, a total of 208 weeks. The respondent has appealed that decision.1
The respondent argues that there is no provision in § 31-349 for apportionment of the 104-week period between different body parts, and that the statute does not require that 104 weeks be paid on each body part before transfer.2 We recently addressed the same claim in Abbott v. General Dynamics/Electric Boat Division, 1923 CRB-2-93-12 (decided August 31, 1995), however, and decided that such an apportionment is indeed appropriate where a claimant suffers separate and unrelated injuries from the same accident. Id. The argument set forth by the respondents, who cite Lovett v. Atlas Truck Leasing, 171 Conn. 577 (1976), and Hernandez v. Gerber Group, 222 Conn. 78 (1992), was expressly rejected in the Abbott case. We see no reason to differ in our decision here.
In both Abbott and this case, the trial commissioner found that the claimant suffered from a pre-existing condition that materially and substantially contributed to the disability resulting from each claimant’s compensable injury. Each trial commissioner also found that the claimant before him had suffered separate and unrelated injuries from the same accident. In Hernandez, supra, the claimant’s injuries were causally related sequelae of a preexisting heart condition, and the claimant’s heart attack led to his leg injury. In this case, however, the claimant’s injuries are unconnected, even though they relate to pre-existing conditions that render them transferable to the Second Injury Fund. Therefore, Hernandez is inapplicable to this case, just as it did not apply in Abbott.
The claimant suffered two injuries from one accident, resulting in two separate and unrelated impairments to her left and right elbows. As discussed in Abbott, requiring 104 weeks of benefits to be paid on each body part before transferring liability to the Fund is consistent with Lovett, supra. “Where a claimant has suffered more than one compensable injury from an accident, and those injuries are not causally related to each other as in Hernandez, supra, we reiterate that “disability” as used in § 31-349(a) refers to each individual injury for the purpose of calculating the 104-week period.” Abbott, supra.
The trial commissioner’s decision is affirmed.
Commissioners Roberta S. D’Oyen and Amado J. Vargas concur.
1 The respondent filed a Motion to Submit Additional Evidence. It seeks to introduce an approved voluntary agreement and an approved recommendation regarding the claimant’s elbow injuries. The respondent has failed to demonstrate how this evidence is material to our decision in this case, however, pursuant to Administrative Regulation § 31-301-9. A simple assertion of materiality without reasoning to back it up cannot be considered sufficient. Thus, the motion is denied.
Likewise, the respondent alleges error in the commissioner’s failure to grant their Motion to Correct. Although we disagree with the respondent’s contention regarding the findings in paragraph 6 of the commissioner’s Finding and Award, we do recognize that an approved voluntary agreement must be considered by a commissioner in determining the amount of compensation due to a claimant and in calculating the 104-week period prior to the transfer of liability under § 31-349(a). However, because specific dates for transfer were not prescribed in the Finding and Award, correcting a disparity in the jurisdictional facts would not affect the outcome of this case. See Plitnick v. Knoll Pharmaceuticals, 1699 CRB-8-93-4 (decided Nov. 7, 1994). Therefore, the commissioner did not commit reversible error in denying the Motion to Correct. BACK TO TEXT
2 The relevant parts of § 31-349 provided at the time of the claimant’s injury: “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 . . . 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, including total disability . . . . The carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. . . . Thereafter all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund.” BACK TO TEXT