CASE NO. 3388 CRB-03-96-07
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 22, 1998
MISCIONE & ERICSON
AETNA INSURANCE CO.
SECOND INJURY FUND
The claimant was represented by Andrew Bottinick, Esq., Perkins & Mario, P.C., Harmony Place, 67 Cherry Street, Milford, CT 06460. Counsel did not appear as the issues on appeal concerned a dispute between the Respondent Employer and the Second Injury Fund.
The employer Miscione & Ericson and Aetna were represented by Christine Yeomans, Esq., and Cynthia Garraty, Esq., Law Offices of Michael E. Riley, 1 Civic Center Plaza, P.O. Box 2138, Hartford, CT 06145-2138.
The employer Bismark Construction and Aetna were represented by Michael McAuliffe, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.
The Second Injury Fund was represented by Anthony Jannotta, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the July 18, 1996 Finding and Award of the Commissioner acting for the Third District was heard April 4, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.
JESSE M. FRANKL, CHAIRMAN. The Second Injury Fund has petitioned for review from the July 18, 1996 Finding and Award of the Commissioner acting for the Third District. In that decision, the trial commissioner granted the transfer of liability to the Second Injury Fund pursuant to §31-325.1 The commissioner found that the description of the claimant’s defect on the Acknowledgment of Physical Defect form was legally sufficient to meet the plain language requirements of § 31-325. In support of its appeal, the Fund contends that the description of the preexisting condition was not sufficiently clear; that the record did not support the requisite causal connection between the preexisting condition and the second injury; and if transfer is affirmed then liability should be apportioned with the employer which was liable for the first injury.
The trial commissioner found the following relevant facts. On May 23, 1990 the claimant, a construction laborer, sustained a lumbar and cervical spine injury during the course of his employment with Miscione & Ericson (hereinafter “Miscione”). The claimant’s treating physician, Dr. Katz, performed surgery. The claimant was out of work for approximately three years. Aetna accepted liability for said injury and the claimant received compensation for a 15.25% permanent partial disability of the lumbar spine and a 6% permanent partial disability of the cervical spine. In June 1993 the claimant commenced employment with Bismarck. On August 13, 1993 the claimant filed an Acknowledgment of Physical Defect which was approved by a trial commissioner. The acknowledgment form, which was signed by Dr. Katz, indicated that the claimant was employed by Bismarck and that he had a 15 to 20% permanent partial disability of the lumbar spine.
Subsequently, on January 9, 1995 the claimant sustained a new back injury while moving a boulder in the course of his employment with Bismarck. This new injury was an aggravation of the claimant’s preexisting lumbar spine condition. The trial commissioner found the Acknowledgment of Physical Defect form to be sufficient to support transfer of liability pursuant to § 31-325, and ordered the Fund to assume liability for the January 9, 1995 injury.
We will first address the Fund’s argument that the record does not support the trial commissioner’s conclusion that the claimant’s disability following the January 9, 1995 injury was attributable in a material degree to the preexisting physical defect of his lumbar spine. We find no merit to this argument, as a report by Dr. Katz dated June 6, 1995 specifically states that the claimant’s “current condition is an aggravation of a pre-existing 1990 injury.” (Respondents’ Exh. 2). Dr. Katz further states that “his pre-existing condition, combined with his degenerative disc disease, have contributed in a material degree to his present condition.” Id.
Next, we will address the Fund’s argument that the Acknowledgment failed to plainly describe the claimant’s defect as was required by § 31-325. Section 31-325 provides in part: “Whenever 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 . . . .”
We find no merit to the Fund’s argument that the Acknowledgment failed to plainly describe the claimant’s defect as was required by § 31-325. This board has specifically held that “[i]t 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.” Valchecko v. Connecticut Light and Power, 15 Conn. Workers’ Comp. Rev. Op. 55, 2062 CRB-6-94-6 (Dec. 1, 1995), aff’d., 43 Conn. App. 902 (1996) (per curiam), cert. denied, 239 Conn. 952 (1996). Accordingly, we find no error in the trial commissioner’s conclusion that the description in the instant case, specifically “15-20% permanent partial impairment to the lumbosacral spine” (Respondents’ Exh. 1), to be legally sufficient.
Finally, we will address the Fund’s contention that liability for the May 23, 1990 injury must remain with Miscione, and thus that liability must be apportioned. In light of the Appellate Court’s recent decision in Fimiani v. Star Gallo Distributors, Inc., 48 Conn. App. 474 (1998), we agree with the Fund’s argument. In Fimiani, the court explained as follows:
We interpret § 31-349 as providing that after 104 weeks the fund shall be responsible for all compensation and medical treatment attributable to the second injury ‘less any compensation payable or paid with respect to the previous disability.’ The use of the phrase ‘less any compensation payable’ indicates that the legislature envisioned that benefits due to the plaintiff from the first injury would continue after transfer and be deducted from the benefits received from the second injury; accordingly, the fund would not take on that cost.
Fimiani, supra, at 480.
Furthermore, the court explained regarding the first injury, the “employer or its insurer must remain responsible for the percentage of the compensation and medical treatment for the total disability attributable to the first injury.” Id. The court concluded that “in cases where an employee has suffered two separate compensable injuries that have contributed to cause a disability, and liability for that disability can be apportioned between the two injuries by the trial commissioner, the apportionment may also be extended to the liability imposed on the fund by § 31-349.” Id.
We recognize that the Fimiani decision dealt with § 31-349 rather than § 31-325. However, § 31-325 specifically provides, “The rights and liabilities of the parties to the acknowledgment as to injuries arising out of and in the course of the employment and within the terms of the acknowledgment shall be as provided by section 31-349.” (Emphasis added). Accordingly, the reasoning regarding apportionment in Fimiani, supra, applies equally to the instant case.
We therefore remand this matter to the trial commissioner in order to determine the apportionment between the Fund and Miscione. In all other respects, the decision is affirmed.
Commissioners James J. Metro and John A. Mastropietro concur.
1 Note: §31-325 C.G.S. has since been repealed effective July 1, 1995 pursuant to P.A. 95-277, §18. BACK TO TEXT