CASE NO. 188 CRD-4-82Workers’ Compensation Commission
JANUARY 27, 1988
The claimant was represented by Thomas L. Brayton, Esq., Brayton and Mengacci, P.C.
The respondents were represented by Kevin J. Maher, Esq.
The Second Injury and Compensation Assurance Fund was represented by Robert W. Murphy, Esq., Assistant Attorney General.
This Petition for Review from the December 13, 1982 Finding and Award by the Commission Chairman acting for the Fourth District was heard on December 9, 1983 before a Compensation Review Division panel consisting of Commissioners Robin W. Waller, Rhoda H. Loeb and A. Paul Berte.
FINDING AND AWARD
The Finding and Award of the trial Commissioner is affirmed and adopted as the Finding and Award of this tribunal.
OPINION
ROBIN W. WALLER, Commissioner.
Claimant suffered a compensable injury to his back on February 23, 1972. The claimant was rated as having suffered a 20% permanent partial disability to the beck as a result of the compensable injury. Pursuant to a voluntary agreement approved by the Honorable Vincent Tisi on July 18, 1973, respondents paid 104 weeks of compensation representing an award for 20% permanent partial disability to the back, Sec. 31-308, C.G.S. (Rev. to 1972).
On June 26, 1973 claimant suffered a second compensable injury to his back with the same respondents. As a result of the accident claimant underwent surgery on August 4, 1974 and July 10, 1975. On February 19, 1976 claimant’s physician was of the opinion that claimant had suffered a 30% permanent partial disability of the back resulting in an increase of 10% permanent partial disability.
Claimant contended that he was entitled to an award of 30% permanent partial disability of the back. Respondents denied liability for said amount and offered a voluntary agreement for 10% permanent partial disability. The trial Commissioner found that claimant was entitled to 10% additional disability and awarded him same. Claimant appealed to this tribunal claiming that the trial Commissioner had erred by retroactively applying Sec. 31-349 C.G.S. (Rev. 1980) the pertinent language of which precludes such an award:
“. . . If an employee 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 the 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 accident or injury, disease or congenital causes. . .” (Emphasis added)
Claimant contends that if the trial Commissioner had applied Section 31-349 C.G.S. as it existed at the time of the compensable injury in 1973 that he would have been entitled to an award for the entire amount of the disability, i.e. 30%. The relevant section of the statute as it existed in 1973 reads as follows:
“. . . If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss, 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 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 the disability, including total disability, and necessary medical care, as elsewhere provided in this chapter, notwithstanding the fact that part of the disability was due to prior accidental injury, disease or congenital causes. . .”
We do not agree that the trial Commissioner had to retroactively apply Section 31-349 C.G.S. (Rev. 1980) in order to reach the result that he did, nor do we agree that he had to violate the intent of Section 31-349 C.G.S. (Rev. 1973) in order to find that claimant was entitled to an award of an additional 10% permanent partial disability of the back. Claimant would have us believe that since the statute amended in 1979 to include the words that preclude a recovery for the additional disability, that the Legislature intended that in awards prior to that time, claimants would be paid the full amount of specific indemnity, even if they had been compensated for a portion of the disability as a result of a prior compensable injury. For example, a claimant suffers a compensable injury resulting in 10% loss of use of a body part followed by four successive compensable injuries to the same body part resulting in 10% additional disability from each injury. Using claimant’s logic, the total amount of permanent partial disability which would be paid would be 150% of the body part. Could the legislature have intended that in the circumstances where two claimants have suffered an equal amount of permanent disability, and the only difference between them is that the first incurred the disability as a result of one accident and that the second’s disability was occasioned by five compensable injuries, that the former is to be indemnified 50% and the latter 150%? In the claimant’s case, the combination of his prior award for 20% permanent partial disability and the present demand for an award for 30% impairment would result in a total indemnification for 50% permanent loss of use of the back. In essence, the claimant will have been compensated for 20% more disability than he actually has.
Claimant contends that the cases of Cashman vs. McTernan School, Inc., 130 Conn. 401 (1943) and Glenn vs. Stop Shop, Inc., 168 Conn. 413 (1975), mandate the payment of 30% permanent partial disability for the injury of 1973. Both cases stand for the proposition that in circumstances where the total amount of permanent impairment may contain some degree of noncompensable pre-existing disability, the claimant should be paid for the full amount of the permanent partial disability. In neither cases was the claimant previously compensated for the pre-existing degrees of permanent disability under the Workers’ Compensation Act. The court in both cases held that there should be no apportionment of benefits where claimant’s compensable injuries were superimposed upon pre-existing injuries which resulted in a non-occupational disease.
The decision of the trial Commissioner in the instant case does not conflict with the results of either Cashman or Glenn. In fact, his decision affirms these holdings by insuring that the claimant is paid for the full amount of his permanent partial disability. Since claimant was compensated for 20% permanent partial disability as the result of the 1972 injury and awarded 10% as a result of the 1973 injury, he has been fully indemnified for the 30% total amount of permanent partial loss of use of his back.
Claimant raises a second issue in his Motion To Correct The Findings. He contended that the trial Commissioner should have included paragraphs 13 and 14 of a proposed Stipulation of Facts dated November 13, 1980. They read as follows:
“13. The Second Injury Fund of the State of Connecticut denies liability for benefits paid or to be paid beyond 104 weeks as a result of the June 26, 1973 injury on the basis that there is no evidence that the claimant’s pre-existing back impairment contributed materially and substantially to the resulting 30% permanent disability.”
“14. The law in effect as of June 26, 1973 is applicable to this claim.”
It is clear from the trial Commissioner’s Finding, the denial of the Motion, and the Brief of the Second Injury Fund that the Fund did not agree to the inclusion of these paragraphs as part of the Stipulation of Facts. However, it is difficult to see how their inclusion would have changed the result in light of the reasoning previously set forth.
We, therefore, affirm the trial Commissioner’s Finding and Award of Compensation of December 13, 1982.
Commissioners A. Paul Berte and Rhoda H. Loeb concur.