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Lopez v. Diversified Concrete

CASE NO. 2142 CRB-6-94-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 29, 1996

HERIBERTO LOPEZ

CLAIMANT-APPELLEE

v.

DIVERSIFIED CONCRETE

EMPLOYER

and

AETNA LIFE & CASUALTY INS. CO.

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Michael A. Georgetti, Esq., 67 Russ St., Hartford, CT 06106.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-1412.

The Second Injury Fund was represented by Yinxia Long, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the September 9, 1994 Finding of Facts and Award of Compensation of the Commissioner acting for the Sixth District was heard June 23, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the September 9, 1994 Finding of Facts and Award of Compensation of the Commissioner acting for the Sixth District. They argue on appeal that the trial commissioner erroneously refused their request to transfer liability for the claimant’s disability to the Second Injury Fund. We reverse the trial commissioner’s decision.

The claimant sustained a traumatic injury to his left eye that arose out of and in the course of his employment with the respondent Diversified Concrete on September 15, 1990. The accident left him totally blind in the left eye. Amblyopia had left the claimant permanently blind in the right eye since his childhood. Thus, the claimant could no longer see. The parties stipulated that the claimant’s total disability from the left eye injury was made materially and substantially greater by the pre-existing amblyopia, and that the Second Injury Fund had been timely notified of this claim under § 31-349 C.G.S.

Despite the stipulation, the trial commissioner refused to accept that the prior disability materially contributed to the disability caused by the second injury. He reasoned that the left and right eye are separate body parts, and that the disability in the left eye was not affected by the disability in the right eye. Citing Lovett v. Atlas Truck Leasing, 171 Conn. 577 (1976), he denied transfer of the claim to the Second Injury Fund. The respondents have appealed from that decision.

Notwithstanding the trial commissioner’s refusal to accept a stipulated fact, the issue in this case is purely a legal one, as there is no disagreement that the claimant is totally blind (although the Fund stresses that there is no evidence that the claimant is permanently totally disabled because of his visual impairment). The question is simply whether, as a matter of law under § 31-349(a),1 the pre-existing visual impairment in the right eye combined with the compensable left eye injury to further worsen the disability. To properly answer that question, we must place this case in historical context.

When workers’ compensation law was first being implemented, employers were often held liable for the full consequences of their employees’ work-related accidents regardless of pre-existing disabilities. Jacques v. H. O. Penn Machinery Co., 166 Conn. 352, 356 (1974). Ironically, the seminal case typifying this precept in Connecticut is Fair v. Hartford Rubber Works Co., 95 Conn. 350 (1920), which concerned an employee who lost most of the sight in his one good eye because of a work-related injury. Our Supreme Court stated that “[i]t is of no consequence that the total incapacity of this plaintiff is in part due to the fact that he had already lost one eye before suffering the injury in question; the right to compensation depends in each case on the extent to which the plaintiff is in fact incapacitated by the injury.” Id., 354. Thus, the plaintiff was entitled to compensation from his employer for total incapacity rather than lesser compensation for the loss of one eye only.

Holdings such as this predictably discouraged employers from hiring physically challenged employees. Jacques, supra. In response, the legislature enacted an apportionment scheme,2 and allowed employers to condition hiring such workers on their completion of a waiver of future compensation resulting from the enumerated physical condition. Section 31-325 C.G.S. (repealed June 29, 1995); Jacques, supra, 357; Cashman v. McTernan School, Inc., 130 Conn. 401, 404 (1943). Thus, the reason for employer discrimination was removed, but handicapped employees were left without adequate protection in the event of a second disability. In order to remedy that problem, Connecticut adopted Second Injury Fund legislation in 1945. Jacques, supra; see also Levanti v. Dow Chemical Co., 218 Conn. 9, 18 (1991).

The initial version of the Second Injury Fund statute only addressed employees who had previously incurred “by accidental injury, disease or congenital causes, permanent partial incapacity by means of the total loss of, or the total loss of use of, one hand, one arm, one foot, one leg or one eye, or the reduction of sight in one eye to one-tenth or less of normal vision with glasses.” The statute stated that if a compensable injury resulted in permanent total incapacity “by means of the loss of, or loss of use of, another of said members, or eye, or the reduction of sight in the other eye to one-tenth or less of normal vision with glasses,” the employee would be entitled to compensation from his employer for such incapacity to work and for the specific loss of the member or organ due to the compensable injury. Afterward, the Second Injury Fund would step in and pay the claimant additional weekly compensation during the continuance of his incapacity, including total incapacity if it so resulted. In 1959, reference to specific disabilities was deleted by the legislature to leave only the broader term “permanent partial incapacity” in the first sentence of the statute. Public Acts 1959, No. 580, § 11. Specific (but not exclusive) language addressing an employee who has previously incurred the loss of a member or eye, or “who has other permanent partial impairment” appeared in 1967, and remained in the version of § 31-349 in effect at the time of the injury in this case.

Now, the Fair case has returned to us in a sense, as we are asked to decide whether an injury situation nearly identical to the one there should qualify for transfer to the Second Injury Fund. The parties mainly focus on the effects of two cases on their respective positions: Lovett v. Atlas Truck Leasing, supra, and Benoit v. UNC Naval Products, 12 Conn. Workers’ Comp. Rev. Op. 315, 1606 CRB-2-92-12 (June 24, 1994).

In Lovett, the claimant suffered damage to the retinae of both eyes in a workplace tire explosion. He had pre-existing astigmatism in each eye as well. The trial commissioner found that the injury to the retina of the left eye caused a total loss of vision in that eye independent of the astigmatism, while the 40 percent vision loss in the right eye was caused by both conditions. The respondents argued on appeal that they should be allowed to deduct compensation for the amount of pre-existing disability in the left eye. Our Supreme Court ruled that apportionment under § 31-349 would be inappropriate because the astigmatism did not increase the ultimate disability to the left eye. Lovett, supra, 584.

In Benoit, a claimant who was born without a left hand was diagnosed with work-related carpal tunnel syndrome in her right hand. This board affirmed the commissioner’s order to transfer liability to the Second Injury Fund, as there was evidence to support the finding that the claimant’s permanent disability was materially worsened by the pre-existing disability. We noted that there was no requirement that the pre-existing impairment be located in the same body part involved in the compensable injury. “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.” Benoit, supra, 317.

Although both of those cases relate to the matter at bar, neither of them is directly on point. Lovett dealt with eye injuries, but not total blindness in both eyes. The court did not need to analyze the effect of the pre-existing astigmatism on the claimant’s overall eyesight when it affirmed the finding that the astigmatism did not contribute to the disability in the claimant’s left eye. As for Benoit, the evidence there established that the congenital absence of the claimant’s left hand worsened the disability to her other hand. We were thus not faced with the same question at issue here, though we did state that the prior impairment need not involve the same body part later injured during employment. Id., 317. To so require would have been inconsistent with the purpose and language of § 31-349. Id.

It is that very purpose that guides the way to the proper decision here. Our Supreme Court recognized as early as 1920 that a claimant who is totally incapacitated by an injury ought to be compensated as such. Fair, supra, 353-54. Subsequent changes like apportionment statutes and the establishment of the Second Injury Fund were intended to protect employers from becoming liable for consequences not attributable to their employment, and to ensure that physically challenged workers would not be unfairly discriminated against while still being protected in case of a second disability. Levanti, supra, 18; Jacques, supra, 357. The earlier versions of § 31-349 discussed above made it clear that the circumstances addressed in Fair and at issue in this case were included in the scope of the statute. Later simplifications of the language of § 31-349 were plainly intended to broaden the definition of second injury rather than to narrow it.

There is no question that the claimant suffered from a permanent partial impairment because of his childhood amblyopia. See Rowe v. Plastic Design, Inc., 37 Conn. App. 131, 135 (1995). There is also no question that the second injury has left the claimant totally blind. We would be guilty of both reading § 31-349 too narrowly and ignoring the history of that statute and the Workers’ Compensation Act if we held that the situation in this case did not constitute a transferable claim to the Second Injury Fund. The claimant’s overall disability was made far worse by the fact that he had lost the sight in his right eye prior to the compensable injury. Levanti, supra, 17. The impact of these circumstances on his earning capacity is plain. See Williams v. Best Cleaners, 235 Conn. 778, 786 (1996). The trial commissioner should not have considered the left and right eyes as separate body parts when total blindness resulted from the combination of the two injuries, which each cost the claimant the sight in one eye.

The trial commissioner’s decision is reversed, and the case is remanded for the entry of an order consistent with this opinion.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

1 The relevant portions of § 31-349 provided at the time of injury: “The fact that an employee has suffered previous disability . . . shall not preclude him from compensation for a later injury. . . . 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, including total disability . . . notwithstanding the fact that part of such disability was due to prior accidental injury, disease, or congenital causes.” BACK TO TEXT

2 Included in this apportionment scheme was a 1927 amendment qualifying the rule in § 5351 C.G.S. (now § 31-307) that total and permanent loss of sight in both eyes automatically constituted total incapacity. At the time of the claimant’s injury, § 31-307 provided that “an employee who has suffered the loss or loss of the use of one of the members of his body . . . or the reduction of vision in one eye to one-tenth or less of normal vision, shall not receive compensation for the later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with the previous incapacity except as hereinafter provided.” See Jacques v. H. O. Penn Machinery Co., 166 Conn. 352, 357 n. 2 (1974). BACK TO TEXT

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