CASE NO. 48-CRD-6-81Workers’ Compensation Commission
AUGUST 13, 1982
The Claimant-Appellant was represented by Edward Smoragiewicz, Esq.
The Respondents-Appellees were represented by James Pomeranz, Esq.
This Petition for Review from the January 14, 1981 Decision of the Commissioner for the Sixth District was argued May 21, 1982 before a Compensation Review Division Panel consisting of Commissioners John Arcudi, Edward Bradley and Robin Waller.
John Arcudi, Chairman, Robin Waller, Commissioner, Rhoda Loeb, Commissioner
FINDING AND AWARD
1-6 Paragraphs 1 through 6 of the Commissioner’s Finding are affirmed and adopted as the Finding of this Division.
A-D Paragraphs A through D of the Commissioner’s Award are affirmed and adopted as the Award of this Division.
OPINION
Claimant suffered a compensable acute back strain on November 28, 1978 while working for the Employer-Appellee. The claimant returned to work with the same employer December 29, 1979 and alleged that he suffered a new injury January 9, 1980. He also claimed to have a 10% permanent partial disability of the back as a result of the November 29, 1978 injury.
The Commissioner found that all temporary total disability benefits due claimant had been paid. He found no new injury had occurred January 9, 1980 and awarded claimant 5% permanent partial disability of the back. Claimant-Appellant has not appealed with respect to the first two conclusions but only as to the third, the 5% permanent partial disability of the back rather than 10%.
The matter was heard before the late Commissioner Edward D. O’Brien, Sr. and involved considerable conflict of testimony. Claimant was Spanish speaking and knew little or no English. His testimony came in through an interpreter. When he was examined or treated by physicians, they also spoke to him through an interpreter.
Dr. Adolph Franz and Dr. Jeffrey Steckler, both orthopedists of New Britain testified on behalf of the claimant. There was also submitted in evidence a written report by a Hartford orthopedist, Dr. Robert L. Fisher, who examined claimant at the Commissioner’s request.
Claimant-Appellant testified that he had had no back problem before the November, 1978 incident at New England Forge. However hospital records, work records and Dr. Franz’s own testimony showed that he had a back problem as early as 1969, seven years before. Dr. Franz had last treated him for the back in October, 1976. There was also some indication of an incident at Meriden Foundry in that seven year period. The histories given to Doctors Steckler and Fisher had no mention of the back problems before 1978.
All the doctors testified, despite the failure of x-rays, myelogram and other diagnostic procedures to show any objective signs of disc pathology, despite no surgery ever having been recommended, that he had a 10% permanent partial disability of the back when they saw him in 1979 or 1980. And all the doctors attributed all or part of this permanent disability to the November, 1978 work event. The treating physician, Dr. Franz, could not determine how much of the 10% pre-existed November, 1978.
Section 31-349, C.G.S. in 1978 before the amendments effective October 1, 1979 provided that if there were a preexisting physical impairment or disabling condition and if a new or second injury occurred which in conjunction with the previous condition created a disability substantially and materially greater than would have been the case from the results of the new injury alone, then the employer was responsible to pay for the entire disability thus created. In 1979, the statute was amended to make the employer pay for the entire disability less any benefits which had been previously paid for an injury under the law. Both the 1978 statute and the 1979 amended statute permitted the employer to pass liability on to the Second Injury Fund after 104 weeks of payment, Lovett vs. Atlas Truck Leasing, 171 Conn. 577 (1976), Plesz vs. United Technologies (1978)174 Conn. 181, Kramer vs. General Electric Company, 17-CRD-4-80, 1 C.W.C.R.D. 12.
Under 31-349, it would appear that if the Commissioner found 10% permanent partial disability of the back, the last employer would have been responsible for paying the whole 10%. But the evidence showed that the previous back problem may have resulted from a Meriden Foundry back incident, also a work related event compensable under the Workers’ Compensation Law, and the previous back problem created some permanent partial disability. Further, even before the 1979 amendments, the Commissioners had not been permitting double payment if an employee had previously been paid some permanent partial disability as a result of a prior work injury.
The Commissioner weighed all these factors, and he concluded that Claimant-Appellant should be paid 5% permanent partial disability for the November, 1978 accident. He may have done this, because he found that claimant had 10% permanent partial disability, but half it was the responsibility of the Meriden Foundry work accident, or he may have concluded that the incorrect history given the doctors colored their evaluation of permanency, and that a proper history may have caused the doctors to give a lower percentage. The latter conclusion may have been supported in his mind since the doctors’ evaluation had been based mainly on subjective complaints, and the correct history would have presented the doctors with a much longer period of subjective complaints. Whatever the basis of the Commissioner’s conclusions, we, who did not listen to the witnesses, are not inclined to disturb them. They were mixed conclusions of fact and law. The trier of the facts had a sufficient basis for them.
Therefore, the decision of the Commissioner is affirmed.