Palumberi v. University of Bridgeport

The claimant was not represented at oral argument. Notice sent to Richard Lyman, Esq., 225 Asylum St., Hartford, CT 06103.

The respondents were represented by Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

The Second Injury Fund was represented by Kenneth Kennedy, Jr., Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the March 29, 1996 Finding and Award of Compensation by the Commissioner acting for the Fourth District was heard January 10, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The Second Injury Fund has petitioned for review from the March 29, 1996 Finding and Award of Compensation by the Commissioner acting for the Fourth District. The Fund argues on appeal that the commissioner erred by ordering liability for the claimant’s injuries to be transferred under § 31-349 C.G.S. We agree, and reverse the trial commissioner’s decision.1

The claimant tripped over a wire at work on May 30, 1990, tearing the rotator cuff in her right shoulder and leaving her with a 40 percent permanent partial disability of that extremity. In 1985, the claimant underwent a total knee replacement as the result of a congenital problem. She also had a preexisting impairment to her right hand. Her treating physician, Dr. Carolan, testified that a relationship existed between the knee and shoulder conditions, and that the claimant was totally disabled because of the joint effect of those disabilities. This opinion was corroborated by Dr. Camarda, a § 31-294f examiner, who testified that the combination of the impairments caused a permanent disability that was materially and substantially greater than the one that would have resulted from the May 30, 1990 injury alone. The trier apparently accepted these diagnoses, as she ordered that liability for the claim be transferred to the Second Injury Fund under § 31-349. The Fund has appealed that decision.

The Fund argues that this case should not transfer because it does not fall within the scope of the statute. At the time of the 1990 injury, § 31-349 allowed transfers of liability to the Fund when “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.” The Fund contends that the evidence shows that the claimant’s shoulder disability would have been the same with or without the other pre-existing conditions, and that those conditions cannot be held to have contributed to the claimant’s permanent disability in any way. There is no finding of a causal nexus between the shoulder condition and the pre-existing hand, knee or cervical conditions. The respondents counter that Lopez v. Diversified Concrete, 15 Conn. Workers’ Comp. Rev. Op. 216, 2142 CRB-6-94-9 (April 29, 1996), supports the transferability of this claim. They note that Dr. Carolan testified that the claimant needs external support when she ambulates because of her pre-existing knee condition, and that this contributes to the ongoing symptoms in her right shoulder.

In Williams v. Best Cleaners, Inc., 237 Conn. 490, 499 (1996), our Supreme Court held that the term “disability” in § 31-349 refers to a claimant’s physical impairment. A first injury materially and substantially worsens a claimant’s permanent disability “if it makes a significant, though not necessarily a primary, contribution to the claimant’s disabled condition, such that an absence of the preexisting injury would result in a measurable lessening of the degree of disability, i.e., physical impairment.” Id., 499-500. Other decisions have also emphasized the need for a causal connection between the pre-existing condition and the subsequent injury. Hernandez v. Gerber Group, 222 Conn. 78, 86 (1992); Abbott v. General Dynamics Corp., 43 Conn. App. 737, 742-43 (1996).

There are cases in which we have that held pre-existing injuries to different body parts than those subsequently injured substantially worsened a claimant’s disability so as to justify transfer to the Fund. For instance, in Benoit v. UNC Naval Products, 12 Conn. Workers’ Comp. Rev. Op. 315, 1606 CRB-2-92-12 (June 24, 1994), the congenital absence of a claimant’s left hand forced her to use her right hand exclusively. When she developed carpal tunnel syndrome in her right hand, the trier found that the previous disability made her current condition materially and substantially worse. We upheld the transfer of this case to the Second Injury Fund.

We also went so far as to reverse a commissioner’s decision not to order transfer in Lopez, supra. There, the claimant was blind in one eye from childhood. When a traumatic work injury left him blind in the other eye as well, we held that the purpose and intent of § 31-349 mandated that this case transfer to the Fund. “The claimant’s overall disability was made far worse by the fact that he had lost the sight in his right eye prior to the compensable injury. . . . The trial commissioner should not have considered the left and right eyes as separate body parts when total blindness resulted from the combination of the two injuries, which each cost the claimant the sight in one eye.” Id., 220.

The respondents argue that Lopez and Benoit should control the outcome of this case. We do not believe the two situations are identical, however. In Lopez, the loss of the claimant’s left eye made him totally blind, which is a vastly more serious disability than the loss of sight in one eye. In fact, § 31-307(c) C.G.S. presumes that the loss of sight in both eyes causes total incapacity. Treating each eye as a separate organ in that case would have discounted the biological mechanism of human eyesight. In Benoit, the absence of one hand directly contributed to the claimant’s subsequent disability by making her use her other hand more, and worsening her carpal tunnel syndrome.

Here, on the other hand, neither doctor testified that the condition of the claimant’s left shoulder was made worse by her previous disabilities to other body parts. Although Dr. Carolan said that the combination of her disabilities makes her totally disabled from employment, he did not say that the shoulder injury itself was worsened by those disabilities. Similarly, Dr. Camarda acknowledged that the claimant’s knee problems could have contributed to the seriousness of her fall when she tripped over the wire, but would not state that they played any part in her 45 percent permanent partial impairment of the shoulder. In fact, he specifically stated that her shoulder disability would be 45 percent with or without the prior disabilities. (Transcript, p. 15.)

Neither of these opinions establishes to any degree that the pre-existing injuries in this case materially and substantially contributed to the condition of the claimant’s shoulder. Thus, there is no legal relationship between the claimant’s compensable 1990 injury and her pre-existing conditions within the meaning of § 31-349. We hold that the commissioner erred in ordering transfer of this claim to the Second Injury Fund, and reverse her decision.

Commissioners James J. Metro and John A. Mastropietro concur.

1 At oral argument, this board granted the Fund’s request for an extension of time to file its brief. However, the Fund’s Reasons of Appeal were filed late, and the respondents filed a Motion to Dismiss their appeal on that ground. We opt to deny that motion, as there appears to be no prejudice from the Fund’s delay in filing its Reasons of Appeal. See Brown v. Interstate Pallet Co., 16. Conn Workers’ Comp. Rev. Op. 64, 3064 CRB-3-95-2 (Oct. 25, 1996). BACK TO TEXT