CASE NO. 3479 CRB-8-96-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
FEBRUARY 18, 1998
LIBERTY MUTUAL INSURANCE CO.
SECOND INJURY FUND
The claimant was represented by William M. Vishno, Esq., Vishno & Vishno, P.C., 142 Temple St., New Haven, CT 06510.
The respondents were represented by James D. Moran, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550.
The Second Injury Fund was not represented at oral argument. Notice sent to 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 22, 1996 Findings of Fact and Award by the Commissioner acting for the Eighth 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 22, 1996 Findings of Fact and Award of the Commissioner acting for the Eighth District. They argue that the trial commissioner erroneously denied their Form 36, as he failed to account for a previous permanent partial impairment that resulted in the payment of compensation. We find error, and reverse the trial commissioner’s decision.
The commissioner found the following relevant facts. The claimant suffered a lumbar spine injury while working for New Haven Trucking in 1977. He filed a workers’ compensation claim that was accepted by his employer, and was diagnosed with an L5-S1 disc herniation. He later drove trucks for the Island Transportation Company, and sustained a further injury to his lumbar spine on October 2, 1981. He was again diagnosed with a disc herniation, this time at both L4-L5 and L5-S1, and two surgeries were performed. The workers’ compensation insurer accepted the compensability of this injury as well, and subsequently transferred liability for the claim to the Second Injury Fund pursuant to § 31-349 C.G.S.
As a further result of the 1981 injury, the claimant pursued a third party negligence suit in Superior Court, recovering approximately $80,000. Dr. Frankel, the claimant’s surgeon and treating physician, opined in 1983 that the claimant had a 45% permanent partial disability of the back, with 35% related to the 1981 injury, and the other 10% to the 1977 injury. [Respondent’s Exhibit 9.] Another doctor who performed an independent medical examination assigned a 10% permanent partial disability of the back for the 1977 injury, and 20% more for the 1981 injury.
The claimant was employed by CBL Trucking on April 2, 1992, when he further injured his lumbar spine falling down a flight of stairs. Again, a workers’ compensation claim was filed, and the insurer accepted compensability. Dr. Sumner diagnosed the claimant with arachnoiditis, a scar tissue inflammation, which had been quiescent until the injury. He stated that the claimant had reached maximum medical improvement on June 10, 1994, with a 30% permanent partial disability of the back notwithstanding prior injuries. Ten percent of that rating was allocable to the April 1992 injury, and the remaining 20% was attributable to the previous discectomies. Dr. Becker then examined the claimant, and agreed with the 30% permanent partial disability assessment to the lumbar spine. Dr. Shafer also performed an independent medical examination, and measured a 25% permanent partial impairment to the claimant’s lumbar spine. The parties reached a voluntary agreement for a 27.5% impairment rating, which was approved on August 31, 1994.
The claimant was represented by the same attorney throughout the legal proceedings concerning the above injuries. However, the claimant had no personal knowledge of the specific permanency rating he was assigned for either his 1977 injury or his 1981 injury. He thought that his 1992 injury was a new condition unrelated to the permanency associated with his prior back injuries. His attorney did not inform CBL Trucking or its workers’ compensation insurer that any permanency had been assigned for those injuries. After the 1994 voluntary agreement was approved, the respondent insurer paid the claimant 32 weeks of permanent partial disability benefits. The insurer then filed a Form 36 with the Eighth District, which was granted on February 16, 1995.
The respondents contended that the voluntary agreement should be reopened on the ground that it was entered into as the result of mutual mistake, because the prior back injuries were not accounted for in calculating benefits due for disability. The trier ruled, however, that they had presented no evidence of voluntary agreements related to those prior disability ratings, nor had they shown any proof that the claimant received permanent partial disability compensation for those injuries. He also found that the respondents had not proven a mutual mistake of fact was made when the parties entered into the 1994 voluntary agreement. He denied the previously approved Form 36, and ordered the respondents to pay the remaining weeks of permanent partial disability due under the voluntary agreement, as well as interest pursuant to § 31-295(c). The respondents have appealed that decision to this board.
As noted, the commissioner made a finding that the respondents offered no evidence of voluntary agreements regarding prior permanent partial disability ratings, and presented no proof that the claimant received such payment. The trier of fact denied the respondents’ request to correct that finding to reflect that such evidence had in fact been offered. Although it is within the commissioner’s discretion to gauge the credibility of the witnesses and the evidence, it is also the case that undisputed material facts should not be omitted from the findings. Grady v. St. Mary’s Hospital, 179 Conn. 662, 669 (1980); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). In this case, the commissioner omitted such a fact.
There is an approved voluntary agreement in the record dated February 9, 1994. It states “27.5% ppd back 143 weeks at $310.00 per week. MMI reached 3-5-83. Note 10% ppd back pre-existed, our accident is not included in the above coverage.” This agreement is an official document that is part of this case file. In his proposed findings to the trier, the claimant attempted to distinguish arachnoiditis (as diagnosed by Dr. Sumner) from a lumbar spine condition, contending that permanency was appropriately awarded for this new injury. There has never been any attempt to disavow the fact that the claimant had received permanency payments for his past back injuries. Instead, he suggests in his appellate brief that he likely had a subsequent reduction in permanency, enabling him to return to physically demanding work before injuring his back again.
Section 31-349(a) C.G.S. states in part:
If an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone, he shall receive compensation for (1) the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability, . . . . 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 statute overrules part of the majority opinion in Weinberg v. ARA Vending Co., 223 Conn. 336, 346-47 (1992), and emphasizes the importance of prohibiting “double recovery” in workers’ compensation cases. Mann v. Morrison-Knudsen/White Oak, 14 Conn. Workers’ Comp. Rev. Op. 79, 80-81, 1918 CRB-1-93-12 (May 12, 1995). See McGowan v. General Dynamics Corp., 15 Conn. App. 615 (1988). It clearly requires any compensation payable or paid on account of a previous disability to be deducted from the compensation received by a claimant for a qualifying second injury. As this case has been transferred to the Second Injury Fund, it certainly involves such an injury.
The voluntary agreement from February 9, 1984 states that the claimant reached maximum medical improvement on March 5, 1983 with a 27.5% permanent partial disability of the back. Another 10% disability from a prior injury is referred to as well. Once the claimant reached maximum medical improvement, his right to receive the permanency award vested. McCurdy v. State, 227 Conn. 261, 261-62 (1993). No one attempted to open that agreement pursuant to § 31-315 C.G.S. in order to establish reduced permanency. Whether the claimant actually received compensation on account of that permanent partial impairment (and we note that he does not suggest that such compensation was not received) is immaterial under § 31-349(a); if compensation was payable for such disability, it must be considered in any subsequent award for permanent partial disability to the same body part.
This is so even if the claimant was somehow fortunate enough to recover some of the lost use of his back during the decade following his 1981 injury. He would not be entitled to further compensation for the same percentages of loss of use of that body part resulting from a later injury. Theoretically, this could result in a claimant receiving greater that 100% of the loss of use of a body part over the span of several injuries, assuming an unexpected decrease in permanent impairment each time after maximum medical improvement is reached. The Workers’ Compensation Act does not favor such an outcome. The theory behind permanent partial impairment benefits is that they are meant as compensation for the permanent loss of or loss of use of a body part.
The August 26, 1994 voluntary agreement entitled the claimant to a 27.5% permanency award for lost use of his low back. Whether this was due to spinal membrane inflammation or to herniated discs, this disability affected the same body part for which the claimant had already been prescribed a 27.5% permanent partial disability in the 1984 voluntary agreement, and possibly 10% more for the 1977 injury. (The evidence is less clear regarding that matter.) Despite the fact that no overall increase in permanency is apparent between 1984 and 1994, the claimant already has received 32 weeks of benefits pursuant to the 1994 voluntary agreement. We do not believe that further benefits for permanent partial disability are warranted at this time.
The respondents agreed in their Form 36 to construe any payments made after September 8, 1984 as § 31-308a payments. Under that condition, we hold that the initial granting of the Form 36 should have been confirmed by the trial commissioner. We remand this case for entry of an order consistent with this opinion.
Commissioners James J. Metro and John A. Mastropietro concur.