CASE NO. 3472 CRB-01-96-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 1, 1998
MANCHESTER BUS SERVICE, INC.
The claimant was represented by Patricia O’Neil, Esq., O’Neil & Associates, 38 Hungerford St., Suite 300, Hartford, CT 06106.
The respondents were represented by David C. Davis, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.
This Petition for Review from the November 20, 1996 Finding and Award of the Commissioner acting for the First District was heard June 27, 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 respondents have petitioned for review from the November 20, 1996 Finding and Award of the Commissioner acting for the First District. In that decision, the trial commissioner determined that the claimant sustained a compensable injury on April 5, 1988 and awarded benefits for a fifteen percent permanent partial disability of the back. In support of their appeal, the respondents contend that the fifteen percent permanent partial disability award is improper because it did not account for the claimant’s prior compensable injuries.
The trial commissioner found the following relevant facts. The claimant sustained a compensable injury on April 5, 1988 when he was involved in an accident while driving a bus for the employer. The claimant was treated at the emergency room for left shoulder and lower back pain, and bilateral leg numbness, and was advised not to work for three days. Subsequently, on May 10, 1988 the claimant sustained a motor vehicle accident which did not occur in the course of his employment. Moreover, the claimant had sustained several injuries prior to the compensable injury on April 5, 1988. Specifically, in 1977 the claimant sustained a work-related injury to his back when he fell on the floor, was hospitalized, and was out of work for approximately two years. In addition, the claimant was involved in motor vehicle accidents in 1984 and February 26, 1988.
The trial commissioner concluded that the claimant sustained a fifteen percent permanent partial disability of the back. Specifically, the trial commissioner found that Dr. Becker assessed a fifteen percent impairment of the back, of which five percent was due to the 1988 compensable accident, five percent was due to his original back injury in 1977, and five percent was caused by the aging process and other accidents and factors. (Finding No. 26). The trial commissioner concluded that at least a five percent impairment of the back was caused by the April 5, 1988 injury. (Finding No. 11).
At the time of the claimant’s 1988 injury, § 31-349 C.G.S. provided:
“If an employee who has previously incurred [a permanent physical impairment]... incurs a second disability... resulting in permanent disability caused by both conditions... he shall receive compensation for the entire amount of the disability, including total disability, less any compensation benefits payable or paid with respect to the previous disability....” Sec. 31-349(a) (emphasis added).
In Weinberg v. ARA Vending Co., 223 Conn. 336, (1992), the Supreme Court held that the term “compensation” in the above section did not include compensation paid or payable outside of the Connecticut Workers’ Compensation Act.
Subsequently, in P.A. 93-228 the legislature amended § 31-349(a) as follows: “For purposes of this subsection, ‘compensation payable or paid with respect to the previous disability’ includes compensation payable or paid pursuant to the provisions of this chapter, as well as any other compensation payable or paid in connection with the previous disability, regardless of the source of such compensation.” This revision by the legislature was meant to clarify the legislature’s intent following the decision in Weinberg, supra. Mann v. Morrison-Knudsen/ White Oak, 14 Conn. Workers’ Comp. Rev. Op. 79, 1918 CRB-1-93-12 (May 12, 1995). Accordingly, it may be applied retroactively. See Anderson v. Scheiffer, 35 Conn. App. 31, 40 (1994).
In the instant case, the record and the findings indicate that the claimant sustained a work-related injury in 1977 which resulted in a permanent impairment to his back. Even if the claimant did not receive compensation for said impairment, it nevertheless appears that it was “paid or payable” and thus must be deducted from the fifteen percent permanent partial disability award. See Mann, supra.
This matter is remanded in accordance with the above.
Commissioners James J. Metro and John A. Mastropietro concur.