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Valechko v. Connecticut Light & Power

CASE NO. 2062 CRB-6-94-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 1, 1995

JOSEPH T. VALECHKO

CLAIMANT-APPELLEE

v.

CONNECTICUT LIGHT & POWER

EMPLOYER

SELF INSURED

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant did not appear as the issues on appeal concerned a dispute between the Respondent Employer and the Second Injury Fund.

Connecticut Light & Power was represented by David C. Davis, Esq. of McGann, Bartlett & Brown; 281 Hartford Turnpike; Vernon, CT 06066.

The Second Injury Fund was represented by Yinxia Long, Esq.; Assistant Attorney General; 55 Elm Street; P.O. Box 120; Hartford, CT 061410120.

The Petition for Review from the June 3, 1994 Findings of Facts and Dismissal of the Commissioner acting for the Sixth District was heard April 7, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer has petitioned for review from the June 3, 1994 Findings of Facts and Dismissal of the Commissioner of the of the Sixth District in which a transfer of liability to the Second Injury Fund pursuant to § 31-325 C.G.S.1 it was denied. The commissioner found that the Acknowledgment of Physical Defect form’s description of the claimant’s defect as “15% loss L knee” was legally insufficient to meet the plain language requirements of § 31-325 C.G.S2.We reverse the decision of the trial commissioner.

The claimant suffered a work-related left knee injury on January 29, 1990 which resulted in a 15% permanent partial disability to his left knee. On March 12, 1991 the claimant was examined by a physician who prepared an Acknowledgment of Physical Defect form which describes his defect as “15% loss L knee.” This form was submitted to the Commissioner of the Sixth District and was approved on May 8, 1991.

On June 18, 1991, the claimant subsequently experienced a second work-related injury to his left knee. The claimant and respondent entered into a voluntary agreement and the respondent then petitioned the Commissioner of the Sixth District to have liability transferred to the Second Injury Fund pursuant to § 31-325 C.G.S. At trial, the parties stipulated that the claim qualifies medically for transfer to the Second Injury Fund pursuant to § 31-349 C.G.S. The Second Injury Fund argued, however, that the Acknowledgment failed to plainly describe the claimant’s defect as was required by § 31-325 C.G.S. and thus, would not allow a commissioner to be able to determine whether the stated defect was causally related to a subsequent injury. The trial commissioner denied transfer, holding that the “15% loss L knee” only describes a disability rather than a specific defect.

The relevant portion of § 31-325 C.G.S. provides that “No acknowledgment shall become effective unless it plainly describes the physical condition . . . .” In Charles v. Ansonia Copper & Brass, Inc., 12 Conn. Workers’ Compensation. Rev. Op. 228, 1447 CRB-5-92-6 (March 23, 1994), the Acknowledgment indicated the employee’s defect as “4-29-82 15% disability Ruptured Disc Surgery 10/16/85.” The trial commissioner noted that it was impossible to determine how many defects were actually contained in this description and what specific areas of the body were involved in that description. Therefore, transfer to the Second Injury Fund was denied. While the Second Injury Fund argues that the description “15% loss L knee” is similar to that in Charles, a more reasonable reading shows that this description is clear in that it only describes the defect to the one knee. It is not required that an actual medical diagnosis or disease be specifically mentioned in the Acknowledgment when the defect is plainly described as a percentage of permanent partial disability to a specific area such as the left knee.

The Second Injury Fund also relies on this tribunal’s decision in Buikus v. Dunham-Bush, Inc., 3 Conn. Workers’ Compensation. Rev. Op. 83, 149 CRD-1-82 (1986) in which transfer of liability was also denied for failure to plainly describe a defect in an Acknowledgment. In that case the defect was described as “lumbar scar after lumbar disc surgery.” The claimant in Buikus then suffered a second injury to his back. However, the defect as described was not specific enough to allow the trial commissioner to determine a causal link between the previous defect and the second injury causing spinal disability. Here, it is reasonable to read the description of “15% loss L knee” to be causally related to a subsequent knee injury which resulted in an additional 5% loss of the left knee. To the extent that Buikus can be read as conflicting with our decision here, we modify it.

We therefore reverse the decision of the trial commissioner and remand the matter to facilitate transfer to the Second Injury Fund.

Commissioner Roberta S. Tracy concurs in this opinion.

AMADO J. VARGAS, COMMISSIONER, DISSENTING. I dissent. The majority has effectively broadened the meaning of the § 31-325 C.G.S. requirement that “[n]o acknowledgment shall become effective unless it plainly describes the physical condition” to include descriptions of disabilities as well as defects without providing sufficient information to allow a commissioner to determine the causal relationship between the defect and subsequent injury to be determined.

In Charles, we explained the legislative purpose for the requirement that the defect be plainly described:

“[i]f the trier is unable to determine what the claimed physical defect or condition is, in the absence of some detailing of the condition with sufficient specificity, then the commissioner cannot determine the described physical condition’s causal relationship to a subsequent injury.”

I disagree with the majority that a reasonable reading of the described defect “15% loss L knee” could support a finding concerning the causal relationship between this description and a subsequent injury to the left knee. This description only indicates that the left knee suffers from a 15% disability. There is no description of the cause of this disability, only its effect. A description of “15% loss L knee” is no help to the commissioner in determining a causal link between this stated disability and a subsequent knee injury.

In my view, an actual medical diagnosis or disease should be included in such an acknowledgment to allow the commissioner the appropriate information with which to assess a causal link between the defect and any subsequent injury. Accordingly, I dissent.

1 Note: § 31-325 C.G.S. has since been repealed effective July 1, 1995. P.A. 95-277, §18. BACK TO TEXT

2 § 31-325 C.G.S. provides in part, “[w]henever any person. . . has any physical condition which imposes upon his employer or prospective employer a further or unusual hazard, it shall be permissible for the person to execute in writing for himself or his dependents, or both, an acknowledgment of the physical condition. No acknowledgment shall become effective unless it plainly describes the physical condition.” BACK TO TEXT

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