ALGER v. ROSSI CORPORATION, 1065 CRD-1-90-6 (12-5-91)


CASE NO. 1065 CRD-1-90-6Workers’ Compensation Commission
DECEMBER 5, 1991

The claimant was represented by Robert J. Farrell, Jr., Esq.

The respondents were represented by Robert Montstream, Esq. and Jean Molloy, Esq., both of Montstream May.

The Second Injury Fund was represented by Robin L. Wilson, Esq., Assistant Attorney General.

This Petition for Review from the June 18, 1990 Finding and Award of the Commissioner for the First District was heard April 26, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Gerald Kolinsky and Andrew Denuzze.



Two issues have been raised by respondents in their appeal from the First District June 18, 1990 decision. They contest (1) the commissioner’s award of two hundred weeks of benefits for the permanent partial disability of the brain and (2) the failure to transfer liability to the Second Injury Fund[1] under Sec. 31-349
of the statutes.

The parties had entered into a Voluntary Agreement approved March 27, 1984. That agreement recognized that claimant had sustained a compensable injury April 19, 1982 and had lost one hundred percent use of the left eye for which the respondents were paying two hundred thirty-five weeks of benefits as provided in Sec. 31-308(b). The commissioner’s 1990 ruling awarded another two hundred weeks of permanent partial disability benefits under Sec. 31-308(d) for twenty per cent loss of use of the brain. He also concluded that the brain disability was not made materially and substantially greater by claimant’s pre-existing condition of alcoholism and therefore denied transfer of liability under Sec. 31-349 to the Second Injury Fund.

The respondents argue that the most that should have been awarded for the permanent partial loss of use of the brain was one hundred fifty six weeks. Section 31-308(d) provides in pertinent part:

In addition to compensation for total or partial incapacity for a specific loss of a member or loss of use of the function of a member of the body or for disfigurement or scarring, the commissioner may award such compensation as he deems just for the loss or loss of use of the function of any organ or part of the body not otherwise provided for herein, taking into account the age and sex of the claimant, the disabling effect of the loss of or loss of function of the organ involved and the necessity of the organ or complete functioning of the organ with respect to the entire body, but in no case more than the sum equivalent to compensation for seven hundred and eighty weeks.

Respondents correctly argue that a permanent partial disability benefit for brain loss is only permissible under Sec. 31-308(d). However, they then argue that as Sec. 31-308(d) provides a maximum benefit of seven hundred eighty weeks, an award for loss of use of the brain would be limited to that. As the commissioner found claimant had a twenty per cent impairment to his brain, they then contend the award should have been for one hundred fifty six weeks, i.e. twenty percent of seven hundred eighty.

Balkus v. Terry Steam Turbine, 167 Conn. 170 (1974) supports a commissioner’s right under Sec. 31-308(d) to award a claimant fewer weeks than those fully available under Sec. 31-308(d). In Balkus, a claimant sought permanent partial benefits under Sec. 31-308(d) for a collapsed lung. The trial commissioner found claimant had sustained a twenty five per cent loss of use or loss of function of the right lung. The trial commissioner then awarded the claimant fifty weeks of benefits under Sec. 31-308(d). Claimant on appeal argued there was medical evidence from which the trial commissioner could have found that claimant was twenty-five per cent disabled and that therefore the commissioner should have awarded one hundred ninety five weeks, twenty five per cent of the total permissible. The court ruled that the commissioner’s award was proper.

The Balkus court reviewed the evidence and concluded that while some evidence could be interpreted to indicate there was a twenty five per cent loss of total bodily function, there was other evidence indicating only a twenty five per cent loss of lung function. Then the court considered an informal guideline set by the commission that total loss of function in a lung was to be valued at one hundred seventy five weeks of benefits. The commissioner’s award of fifty weeks was more than twenty five per cent of the guideline amount. Nonetheless the court held “The award is adequately supported by the subordinate facts found.” Id., 176. In interpreting Sec. 31-308(d), Balkus made it clear that it was the trial commissioner’s function to determine the amount of benefits to be awarded. His determination was to be arrived at by applying the standards set in the statute and not by some predetermined mathematical formula. In the present case the commissioner had sufficient evidence to find there was a twenty per cent loss of brain function. Because of “the disabling effect of the loss of or loss of function of the organ involved and the necessity of the organ . . . with respect to the entire body” he awarded two hundred weeks of benefits.

Respondents’ second issue concerns a ruling under Sec. 31-349. Sec. 31-349(a) provides in pertinent part:

The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom. 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, including total disability, less any compensation benefits payable or paid with respect to the previous disability, and necessary medical care, as elsewhere provided in this chapter, notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes. The employer by whom the employee is employed at the time of the injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability.

Whether a preexisting disability combines with a subsequent work related disability to produce a permanent physical impairment materially and substantially greater than that which would have resulted from the subsequent work injury alone is a question of fact to be determined by the trial commissioner Lovett v. Atlas Truck Leasing, 171 Conn. 577 (1976); Jacques v. H.O. Penn Machinery Co., 166 Conn. 353 (1974). See also, Levanti v. Dow Chemical Co., 218 Conn. 9 (1991). As with other conclusions based on factual findings, our appellate inquiry is limited to determine whether there was evidence to support the trier’s conclusion and whether the conclusion drawn was based on unreasonable or impermissible factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Further we will not disturb his findings when they are dependent on the weight and credibility to be accorded the evidence presented. Rivera v. Guida’s Dairy, 167 Conn. (1975).

Here there was evidence from which the commissioner could have concluded that claimant’s preexisting alcoholism combined with his work-related brain injury so as to result in a permanent physical impairment which was greater than that which would have resulted from the work-related brain injury alone. See September 26, 1985 Deposition of Dr. Walter Borden, 12-16, 25-26; July 8, 1988 Deposition of Robert E. Correll, 12-15. However, there was also evidence from which he could have concluded that the disability sustained was not materially and substantially greater due to the claimant’s preexisting alcoholism. See January 11, 1985 Transcript of Formal Hearing. In that hearing, Dr. Rembrandt Dunsmore testified that the brain disability sustained was directly related to the blow to the back of the head. See Tr., January 11, 1985, 15-16. Claimant’ own testimony at the same hearing about the complicated work tasks he was able to perform before the work injury and the substantially less complicated work tasks performed after the work injury certainly support a reasonable factual inference that the claimant’s alcoholism did not contribute materially and substantially to the claimant’s resulting brain disability.

Respondents contend that the commissioner’s findings should have included the opinions of Drs. Borden and Correll as they were “undisputed” and “uncontroverted”. They cite Calvanese v. Springfield Sugar, 6 Conn. Workers’ Comp. Rev. Op. 52, 549 CRD-1-87 (1988). See Respondents’ Brief at 16. But Calvanese is distinguishable as in the present case there were other medical opinions disputing those doctors’ testimony. See Barrila v. Blake, 190 Conn. 631, 639 (1983).

We therefore affirm the June 18, 1990 Finding and Award of the Commissioner for the First District.

Commissioners Gerald Kolinsky and Andrew Denuzze concur.

[1] At the outset we note that a Motion to Correct was filed by the respondents. The trial commissioner did not rule on that Motion to Correct and for the purposes of their appeal, the respondents have agreed that the trial commissioner be assumed to have denied the Respondents’ Motion to Correct. See Respondent’s Brief at 5.