CASE NO. 1447 CRB-5-92-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 23, 1994
ANSONIA COPPER & BRASS, INC.
HOME INSURANCE COMPANY
SECOND INJURY FUND
The claimant was not represented in these proceedings as the dispute was between the respondents and the Second Injury Fund.
The respondents were represented by Carolyn A. Signorelli, Esq., formerly of Maher & Williams, P.O. Box 269, Bridgeport, CT 06601.
The Second Injury Fund was represented by Robin L. Wilson, Esq. and Ernie R. Walker, Esq., Assistant Attorneys General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the June 19, 1992 Memorandum of the Commissioner for the Fifth District was heard May 21, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George Waldron and Donald H. Doyle, Jr.
JESSE FRANKL, CHAIRMAN. The respondents have petitioned for review from the June 19, 1992 Memorandum of the Commissioner for the Fifth District in which a transfer of liability to the Second Injury Fund was denied. The parties submitted a Stipulation of Facts which was incorporated and referenced to in the Fifth District Commissioner’s June 19, 1992 Memorandum. The pertinent facts are as follows.
The claimant sustained a compensable lower back injury on April 29, 1982 while moving a 500 pound object for the respondent employer. Claimant sought emergency room treatment on April 29, 1982 and May 10, 1982. On May 24, 1982 the claimant was seen by David M. Silverstein, M.D., a neurosurgeon who diagnosed claimant as having a possible disc herniation at L5-S1. The claimant continued to suffer low back symptomology and on August 19, 1985 a CAT scan revealed a disc herniation at L5-S1. On October 16, 1985, Dr. Silverstein performed a hemilaminectomy on the L5-S1 lumbar disc. A Voluntary Agreement reflects an April 29, 1982 injury and a fifteen (15%) percent permanent loss of back and that maximum medical improvement was reached April 14, 1986. The Voluntary Agreement was approved May 21, 1986. On November 17, 1986 a physician examined the claimant and an Acknowledgment of Physical Defect (Form 37-79) was prepared. That Acknowledgment of Physical Defect described the claimant’s physical defect as “4-29-82 15% disability Ruptured Disc Surgery 10/16/85”, and was approved January 28, 1987 by the former Fifth District Commissioner. On December 6, 1988 the claimant sustained another injury to his low back while working for the same respondent-employer. According to the factual stipulation of the parties, “Dr. Silverstein performed a lumbar decompression at lumbar disc L5-S1 on April 4, 1988.” However, in Dr. Silverstein’s reports which were jointly submitted as part of the Stipulation of Facts, there is a reference to an April 4, 1989 surgery during which a “hemilaminectomy at L5, S1 on the right . . . with excision of the disc fragments . . .” was performed. (Discharge Summary Griffin Hospital dated April 10, 1989). Dr. Silverstein in a letter dated December 1, 1989 opined that the injury of December 6, 1988 was attributable in a material degree to the condition described in the Acknowledgment of Physical Defect approved January 28, 1987.
Thereafter, the respondents sought to transfer liability for the December 6, 1988 injury to the Second Injury Fund pursuant to Sec. 31-325. Sec. 31-325 provides in pertinent part:
Whenever any person having a contract of employment, . . . has any physical defect which imposes upon his employer . . . a further or unusual hazard, it shall be permissible for such person to execute in writing . . . . No such acknowledgment shall become effective unless the defect in question is plainly described therein, nor until one of the compensation commissioners finds that the person who signed such acknowledgment fully understood the meaning thereof . . . nor until such commissioner, in writing, approves thereof, . . . . The rights and liabilities of the parties to such acknowledgment as to injuries arising out of and in the course of the employment and within the terms of such acknowledgment shall be such as are provided by section 31-349 . . . .
The commissioner in the instant matter refused to transfer liability to the Second Injury Fund on the basis that the Acknowledgment of Physical Defect did not plainly describe the defect. The commissioner noted that it was impossible to discern whether the Acknowledgment was describing two separate conditions, two causally related conditions or which of the numerous discs in the spinal column were involved.
The trier then referred to this tribunal’s holding in Buikus v. Dunham-Bush, Inc., 3 Conn. Workers’ Comp. Rev. Op. 83, 149 CRD-1-82 (1986) in which the CRD affirmed a commissioner’s refusal to transfer liability pursuant to Sec. 31-325 where the Waiver on Account of Physical Defect1 described the injury as “lumbar scar after lumbar disc surgery.” In Buikus, the Compensation Review Division affirmed the trial commissioner’s ruling that the physical defect described in the waiver was not to be construed on the basis of the physical defect which the respondent intended to describe, but on the basis of the physical defect which the respondent did describe. The commissioner’s refusal to construe the described physical defect as the respondent intended, i.e., herniated disc L4-5 on left, was affirmed. We think the CRD’s ruling in Buikus, id, compels affirmance of the commissioner’s conclusion in the instant matter.
In support of its argument seeking reversal of the commissioner’s conclusion in his June 19, 1992 Memorandum, the respondents argue that Gagnon v. United Aircraft Corp., 159 Conn. 302 (1970) deprives a commissioner from inquiring into the validity of an Acknowledgment of Physical Defect in the absence of fraud or just cause. The respondents contend that after the Acknowledgment is approved by a commissioner, the commissioner’s only remaining determination as to the applicability of the Acknowledgment is whether the injury for which transfer to the Second Injury Fund is sought is attributable in a material degree to the condition described in the Acknowledgment. However, it seems clear that the commissioner’s inquiry under Sec. 31-325 after approval of the Acknowledgment of Physical Defect is not into the validity of the acknowledgment on its face, but its application so as to permit transfer to the Second Injury Fund. Thus, the inquiry by the trier is whether the injury for which transfer is sought is attributable in a material degree to the “plainly described” physical condition set out in the Acknowledgment. If the trier is unable to determine what the claimed physical defect or condition is, in the absence of some detailing of the condition with sufficient specificity, then the commissioner cannot determine the described physical condition’s causal relationship to a subsequent injury. Thus, the Acknowledgment is not invalid but merely ineffective when applied to the commissioner’s inquiry as to the causal relationship between the acknowledged physical condition and subsequent injury.
We, therefore, affirm the Fifth District Commissioner’s conclusion in his June 19, 1992 Memorandum.
Commissioner George Waldron and Donald H. Doyle, Jr. concur.
1 Public Act 79-376 amended Sec. 31-325 C.G.S. and the term “waiver” was altered to “acknowledgement.” Public Act 91-32 then amended the act so that, inter alia, the term physical defect was amended to read physical condition. BACK TO TEXT