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CASE NO. 3035 CRB-3-95-3
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 30, 1996
GALLAGHER BASSETT SERVICES
SECOND INJURY FUND
The claimant was not represented at oral argument. Notice sent to Brett C. Flamm, Esq., 9 Trumbull St., P. O. Box 9467, New Haven, CT 06534-0467.
The respondents were represented by Stephen Ekern, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.
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 March 8, 1995 Finding of Transfer to Second Injury Fund by the Commissioner acting for the Third District was heard January 26, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Robin L. Wilson.
JESSE M. FRANKL, CHAIRMAN. The Second Injury Fund has petitioned for review from the March 8, 1995 Finding of Transfer to Second Injury Fund by the Commissioner acting for the Third District. The Fund argues on appeal that the commissioner erred in ordering transfer because the evidence did not support his finding that the claimant had a preexisting condition within the meaning of § 31-349 C.G.S. We reverse the trial commissioner’s decision.
The claimant sustained an injury to her left arm on October 22, 1987, while in the employment of the respondent Automotive Controls. Liability for the injury was accepted by the respondent insurer Gallagher Bassett. The respondents later attempted to transfer liability to the Second Injury Fund, alleging that the claimant suffers from adult onset diabetes that makes her disability materially and substantially greater than it would have been had she not had diabetes in addition to her arm injury. Dr. Bradburn, the treating physician, opined that the diabetes prolonged the claimant’s recovery period. Dr. Barse, the claimant’s internal medicine physician, stated that the claimant had a family history of diabetes and was predisposed to adult onset diabetes. The commissioner accepted these diagnoses, finding that the disability caused by the left arm injury was worsened by the pre-existing diabetes condition, and ordered transfer of the claim to the Fund after 104 weeks of benefits were paid. The Fund has appealed that ruling, along with the denial of its Motion to Correct.
At the time of the claimant’s left arm injury, § 31-349(a) stated that if “an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability . . . .” The statute, where applicable, allows the employer to transfer liability for the claim to the Second Injury Fund after 104 weeks of disability have elapsed. In order for the statute to apply, there must be a preexisting permanent physical impairment condition precedent to the second injury. Rowe v. Plastic Designs, 37 Conn. App. 131, 134-35 (1995); see also Williams v. Best Cleaners, 237 Conn. 490, 499 (1996) (“disability” refers to physical impairment rather than earning capacity).
Here, the Fund requested that the commissioner’s findings be corrected to reflect that Dr. Bradburn was of the opinion that it was highly improbable that the claimant’s diabetes had begun before January 1990, and that he could not formulate any opinion establishing that it had begun as early as 1987. Their contention is that the diabetes did not pre-exist the 1987 left arm injury. Although this board does not retry the facts of a case, we do review the record to make sure that there was sufficient evidence in the record to support the commissioner’s findings, and that his conclusions were not illegally drawn. Williams, supra, 500-501; Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). As long as there is some evidence to support the commissioner’s conclusion that the claimant had a diabetic condition that preexisted her second injury, his decision to transfer the claim to the Second Injury Fund must stand.
In his deposition, Dr. Bradburn never stated that he thought the claimant had developed diabetes at the time of her arm injury. Instead, he testified that he would be “terribly surprised” if she had clinical diabetes before 1990, and that her problem was really the likelihood of having diabetes in the future. (July 11, 1994 Transcript, pp. 13, 15, 20). Similarly, Dr. Barse stated that the claimant’s family history predisposed her to diabetes, but he could not formulate an opinion as to whether she had diabetes in 1987. (June 29, 1994 Transcript, p. 14). Although the commissioner found that the claimant had a “pre-existing diabetes condition,” he was unable to find that this condition amounted to a permanent physical impairment at the time of the claimant’s arm injury. Indeed, there would have been no evidence in the record to support such a finding.
Without any evidence in the record that the claimant actually had a diabetic condition that manifested itself before October 22, 1987, this board must hold that the respondents did not establish the existence of a preexisting permanent physical impairment within the meaning of § 31-349. See Rowe, supra. Thus, the trial commissioner’s decision to transfer liability to the Fund is unsupported by the evidence, and must be reversed.
Commissioners Michael S. Miles and Robin L. Wilson concur.