CASE NO. 3151 CRB-2-95-8
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 24, 1997
AMERICAN FELT & FILTER
AETNA CASUALTY & SURETY CO.
SECOND INJURY FUND
The claimant appeared pro se on appeal.
The respondents were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.
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 August 17, 1995 Amended Finding and Dismissal of the Commissioner acting for the Second District was heard June 28, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.
JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the August 17, 1995 Amended Finding and Dismissal of the Commissioner acting for the Second District. They argue that the commissioner erroneously failed to allow them to transfer liability for the claimant’s right knee injury to the Second Injury Fund. We affirm the trial commissioner’s decision.
The claimant injured her right knee on March 28, 1990, while receiving treatment for a 1987 compensable injury to her left foot. Dr. Marra, the treating podiatrist, stated that her knee problems resulted from instability in her gait that was brought about by “injection therapy for scar mobilization of her right foot.” She underwent arthroscopic surgery on her right knee on June 11, 1990, at which time Dr. Leavitt, the orthopedic surgeon, noted degenerative disease. Dr. Leavitt thought that the arthritis preexisted the knee injury, and made that injury materially and substantially greater than it would have been otherwise. The claimant eventually had her knee replaced in 1993.
The respondent insurer sent notice to the Fund of its intent to transfer liability for the knee condition on December 8, 1992. The commissioner noted that the Fund received that notice two days later, but more than two years after the claimant’s knee became symptomatic. The commissioner also noted that, according to business records of the insurer, only 75 weeks of benefits had been paid to the claimant prior to the issuance of notice to the Fund, allegedly making said notice timely pursuant to § 31-349 C.G.S.1. However, the medical reports indicated that the claimant was at least partially disabled during the gap in payment.
The commissioner concluded that § 31-349 did not allow transfer of the sequelae of the non-transferable foot injury, even though said sequelae combined with a pre-existing permanent physical impairment to make the resulting disability materially and substantially worse than it otherwise would have been. She distinguished the case of Hernandez v. Gerber Group, 222 Conn. 78 (1992) from the instant matter, ruling that the purpose of the Fund would not be fulfilled by permitting the transfer of liability here. She did not reach the issue of timely notice to the Fund. The respondents have appealed that decision to this board.
It is important for us to emphasize the fact that the respondents did not file a Motion to Correct the commissioner’s factual findings in this case. Thus, we must accept the findings as uncontroverted facts on review. See Cooper v. Sisters of Mercy, 3218 CRB-6-95-11 (decided Dec. 10, 1996). Those findings establish that the Fund did not receive notice of the respondents’ intent to transfer liability until December 1992, and that the claimant’s knee injury occurred in April 1990. The commissioner also found that, although the respondents paid only 75 weeks of benefits prior to issuing notice to the Fund, the claimant was at least partially disabled during the period of time they were not paying benefits. The insurer’s payment summary cited in the finding indicates that the “gap in payment” referred to by the commissioner was a period in which permanent partial disability benefits were paid to the claimant rather than temporary total disability benefits. (Respondent’s Exhibit R).
Under § 31-349, timely notice is a condition precedent to the liability of the Fund for payment. As the Fund correctly asserts in its brief, the absence of timely notice would make any discussion of the medical qualification for transfer of the instant claim moot. See Davis v. Norwich, 232 Conn. 311, 321-22 (1995); Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 392-93 (1993); Soares v. Max Services, Inc., 42 Conn. App. 147, 160 (1996). Our cases have interpreted § 31-349 as requiring notice to be provided to the Fund by the ninetieth day preceding the expiration of the first 104 weeks of the claimant’s disability from the second injury. Vaillancourt, supra; Davis, supra. Irrespective of the type of benefits the claimant was receiving during the post-injury period, the findings establish that she was at least partially disabled during that time. Thus, the § 31-349 notice period continued to run accordingly. See Six v. Thomas O’Connor & Co., 235 Conn. 790, 799-800 (1996).
The commissioner did not reach a legal conclusion regarding the timeliness of notice to the Fund in her decision, as she concluded that the law did not permit transfer of the claimant’s knee injury for other reasons. However, there was only one possible conclusion on the notice issue from her findings: the respondents did not timely file their notice of intent to transfer liability. Said notice would have had to be filed in this case by January, 1992 at the latest; instead, it was not filed until December 10, 1992. Any discussion of the other issues surrounding the transferability of the knee injury claim would ultimately prove to be futile here, because even if the respondents were to prevail on the arguments in their brief, this case would still have to be dismissed for late notice. Therefore, without further discussion, we affirm the trial commissioner’s decision.
Commissioners George A. Waldron and Robin L. Wilson concur.
1 The relevant portions of § 31-349 provided at the time of both injuries: “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. . . . As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier shall, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case . . . .” BACK TO TEXT