CASE NO. 3219 CRB-6-95-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 10, 1997
THE MILLER COMPANY
LIBERTY MUTUAL INSURANCE CO.
SECOND INJURY FUND
The claimant was not represented at oral argument. He is proceeding pro se on this appeal.
The respondents were represented by Scott Wilson Williams, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430.
The Second Injury Fund was represented by J. Sarah Posner, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the November 17, 1995 Findings of Facts and Dismissal of the Commissioner acting for the Sixth District was heard September 20, 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 November 17, 1995 Findings of Facts and Dismissal of the Commissioner acting for the Sixth District. They argue on appeal that the commissioner erred in denying their Motion to Correct, and that his denial of their request to transfer liability to the Second Injury Fund was inconsistent with the subordinate facts. We affirm the trial commissioner’s decision.
The claimant was employed by the respondent Miller Company on June 23, 1983, when he sustained a compensable injury to his right wrist while placing a reel on a machine. The respondents accepted this claim via voluntary agreement approved on April 11, 1989. An orthopedist, Dr. Tonkonow, diagnosed the claimant with a sprain of the left wrist superimposed on inflammatory arthritis. He did not think that there was a pre-existing problem in the right wrist. The claimant next saw Dr. Abeles, a rheumatologist, at a time when his condition was worsening. Dr. Abeles diagnosed reflex sympathetic dystrophy, which was directly caused by the compensable injury. He ruled out inflammatory arthropathy early on in his treatment of the claimant based on blood work. Eventually, he also diagnosed the claimant with rheumatoid arthritis. Dr. Abeles testified that the claimant had a predilection to the development of rheumatoid arthritis prior to his wrist injury, but that it had not yet become an active condition.
Finally, the claimant saw Dr. Tross, a hand surgeon, who confirmed the wrist sprain diagnosis, and concluded that the claimant suffered from pre-existing inflammatory arthropathy that was unrelated to the injury. He also prescribed a 25% permanent partial disability of the right master hand, mainly attributable to the pre-existing arthropathy. Dr. Tross thought that the arthropathy materially and substantially increased the disability over that which would have been produced by the compensable injury alone. The commissioner rejected his opinion in favor of Dr. Abeles’ diagnosis, and found that the claimant had no pre-existing condition prior to June 23, 1993 that made his post-injury disability worse. He therefore dismissed the request to transfer liability to the Fund, a decision which the respondents have appealed.
First, the respondents claim error in the denial of their Motion to Correct. They requested a change in the commissioner’s finding that Dr. Tonkonow opined that there was no pre-existing problem in the claimant’s right wrist. According to the respondents, that statement by Dr. Tonkonow referred only to the causal relationship between a February 1983 right wrist sprain and the symptoms following the June 1983 compensable injury, and did not address the inflammatory arthritis that predated the June injury. The commissioner refused to make that correction.
A look at Dr. Tonkonow’s reports (Claimant’s Exhibit A and Respondents’ Exhibit 2) reveals that he briefly mentioned “hyperemic process at the right wrist consistent with inflammatory process such as inflammatory arthritis” based on a July 14, 1983 bone scan, but did not mention arthritis again. In a September 26, 1983 letter, he stated that he did “not feel that the injury in February 1983 was in any way related to the injury that he sustained in June 1983. There was no pre-existing problem in this patient’s right wrist.” Although we understand the appellants’ point, we do not agree that the commissioner was bound to infer from this evidence that the claimant suffered from pre-existing arthritis. Dr. Tonkonow’s testimony, at best for the respondents, does not say much either way on the matter, but could also be construed as the commissioner read it. Thus, his inference was not improper, and we cannot disturb it on review. Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).
The denial of the Motion to Correct is ultimately a minor issue, however, because the commissioner adopted the opinion of Dr. Abeles that the claimant did not suffer from inflammatory arthropathy prior to June 23, 1993, and thus had no pre-existing injury that could qualify this case for transfer to the Fund. See § 31-349 C.G.S. The respondents did not challenge those findings in their Motion to Correct, and thus they must remain intact on review. See Seltenreich v. Stone & Webster Engineering Corp., 15 Conn. Workers’ Comp. Rev. Op. 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996). Working within the commissioner’s findings, however, the respondents argue that Dr. Abeles clearly testified that the claimant had a pre-existing latent predisposition to rheumatoid arthritis, and that this constitutes a pre-existing condition within the meaning of Rowe v. Plastic Design, Inc., 37 Conn. App. 131 (1995). As such, they argue that the commissioner’s conclusions are unsupported by the subordinate factual findings, and must be reversed. See Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).
In Rowe, the Appellate Court reiterated the requirement in § 31-349 that a preexisting permanent physical impairment condition is a prerequisite to Fund liability. Id., 134. There, the claimant did not suffer from a permanent physical impairment prior to his compensable injury, as a prior injury that he had suffered left him with no lasting consequences. The court disagreed with a prior CRB ruling that liability could be transferred to the Fund as long as the second injury was made materially and substantially worse as a result of the first injury, even if there was no permanent partial disability. Instead, the court held that a quantifiable preexisting permanent physical impairment must exist in order to establish a prerequisite for transferring liability. Id., 136.
This board followed Rowe in Staton v. Automotive Controls, 3035 CRB-3-95-3 (decided Oct. 30, 1996), where we held that a predisposition to diabetes did not constitute a preexisting permanent physical impairment, as there was no evidence that the condition had manifested itself before the compensable injury occurred. Despite the respondents’ argument in the instant case, we believe that this matter is no different. Even though the claimant may have been predisposed to rheumatoid arthritis, the findings show that he was asymptomatic prior to his June 23, 1983 compensable wrist injury. Therefore, the commissioner properly denied the respondents’ request for a transfer of liability for the resulting disability to the Second Injury Fund.
The trial commissioner’s decision is affirmed.
Commissioners George A. Waldron and Robin L. Wilson concur.