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Gilbert v. Iron Workers’ Local Union #15

CASE NO. 2191 CRB-1-94-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 1, 1996

BRUCE GILBERT

CLAIMANT-APPELLEE

v.

IRON WORKERS’ LOCAL UNION #15

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Angelo Paul Sevarino, Esq., 110 Day Hill Road, Windsor, CT 06095-1794.

The respondents were represented by Margaret E. Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

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

This Petition for Review from the October 25, 1994 Finding and Award of the Commissioner acting for the First District was heard June 9, 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 Second Injury Fund has petitioned for review from the October 25, 1994 Finding and Award of the Commissioner acting for the First District. It argues on appeal that the commissioner improperly ruled that the claimant’s brain injury was transferable to the Fund under § 31-349 C.G.S. We affirm the trial commissioner’s decision.

The claimant sustained a compensable traumatic brain injury on March 23, 1989. The insurer argued before the trial commissioner that the claimant was dyslexic prior to the injury, and that his dyslexia made his current disability materially and substantially greater than it would have been otherwise. The Fund and the claimant both argued that he did not suffer from pre-existing dyslexia, and that even if he did, it did not contribute materially to his disability.

The trial commissioner found that the claimant had an eighth grade education, and although he could read and write, he was a terrible speller. He had been employed as a high-elevation ironworker for 25 years, and testified that before his injury, he could play golf, jet ski, ride a motorcycle, and had no memory problems. A report from the Gaylord Hospital stated that the claimant had described himself as severely dyslexic as a child, which led him to leave school after the eighth grade. It went on to state that the claimant was severely dyslexic and had very limited reading and spelling abilities. Medical reports from two other doctors concurred, and that of Dr. Wiesel stated that the claimant’s dyslexia significantly worsened his current disability. Based on these facts, the trial commissioner concluded that the claimant was dyslexic, and that said pre-existing condition materially and substantially increased his disability. Therefore, he ordered transfer of the claim to the Second Injury Fund after 104 weeks. The Fund has appealed that order.

At the time of the claimant’s compensable injury, § 31-349 provided that where “an employee who has . . . 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 the disability” (minus 104 weeks) from the Second Injury Fund, assuming statutory filing requirements are met by the employer/insurer. A preexisting permanent physical impairment is clearly a condition precedent to Fund liability under the statute. Rowe v. Plastic Design, Inc., 37 Conn. App. 131, 134 (1995).

Here, the Fund argues that the claimant’s dyslexia was not a preexisting permanent physical impairment, and that it did not materially worsen the claimant’s overall disability. Whether or not a particular condition constitutes a physical impairment is a factual decision for the trial commissioner. See Williams v. Best Cleaners, 8 Conn. Workers’ Comp. Rev. Op. 168, 169-70, 843 CRD-1-89-3 (Oct. 26, 1990). As we have often stated, this board does not retry the facts, and will uphold a trial commissioner’s decision if there is evidence to support it and if his or her conclusions are legally sound. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979); Webb v. Pfizer, Inc., 1859 CRB-5-93-9 (decided May 12, 1995); Alger v. Rossi Corp., 9 Conn. Workers’ Comp. Rev. Op. 261, 264, 1065 CRD-1-9-6 (Dec. 5, 1991).

There were several medical reports that discussed the claimant’s dyslexia introduced into evidence, as well as an excerpt from the Diagnostic and Statistical Manual of Mental Disorders (DSM). Although none of those items specifically discussed the issue of dyslexia as a “physical impairment,” we do not think it was improper for the trial commissioner to infer from the evidence that dyslexia falls into that category. The DSM excerpt, for example, noted that dyslexia aggregates among biological relatives, and the medical reports did not characterize the claimant’s dyslexia as reversible or a learned condition. In fact, the Sloane-Dorland Annotated Medical-Legal Dictionary (1987 West Publishing Co.) defines dyslexia as “an inability to read understandingly, due to a central lesion.”

Moreover, the respondents did not introduce any evidence to suggest that dyslexia was not a “physical impairment” within the meaning of the statute. Although the initial burden of proving transferability of a § 31-349 claim is not on the Second Injury Fund, the claimant was not required to take great pains in explaining the cause of dyslexia where the Fund did not make its etiology an issue until the Motion to Correct was filed. We do not think that the trial commissioner was unjustified in concluding on the evidence before him that the claimant’s dyslexia was a preexisting permanent partial impairment.

Similarly, the medical reports of Dr. Tweedy and Dr. Wiesel support the finding that preexisting dyslexia materially and substantially contributed to the claimant’s disability from the compensable injury. As stated above, that conclusion is based on a factual inference to be made by the trial commissioner. Alger, supra, citing Lovett v. Atlas Truck Leasing, 171 Conn. 577 (1976). We will not disturb that conclusion on appeal, as there is evidence to support it in this case. Fair, supra; Adzima, supra.

The trial commissioner’s decision is affirmed.

Commissioner Amado J. Vargas concurs.

COMMISSIONER ROBERTA S. TRACY, DISSENTING. I would reverse the trial commissioner’s decision and remand the matter for further findings regarding the nature of dyslexia. There is not enough evidence in the record to establish that dyslexia is a permanent partial impairment under § 31-349 C.G.S. instead of a treatable disorder. The fact that a second injury is materially and substantially worsened by a first injury does not a fortiori make the first injury a permanent partial impairment. Rowe v. Plastic Design, Inc., 37 Conn. App. 131, 135-36 (1995). Indeed, the claimant was able to work for over 25 years as an ironworker despite his dyslexia, and was able to participate in a variety of challenging physical activities before the compensable brain injury. Just because his dyslexia might affect his current ability to obtain employment does not automatically qualify dyslexia as a permanent partial impairment within the meaning of § 31-349. Accordingly, I dissent from the majority opinion.

Workers’ Compensation Commission

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