CASE NO. 529 CRD-7-86Workers’ Compensation Commission
SEPTEMBER 30, 1988
The claimant was represented by Donald Cousins, Esq. and Norma Johnson, Esq.
The respondent-insurer was represented by John J. Keefe, Esq. and Michael McClary, Esq., Lynch, Traub, Keefe Errante, P.C.
The respondent-Second Injury Fund was represented by Morton Greenblatt, Esq. and Brewster Blackall, Esq., Assistant Attorneys General.
This Petition for Review from the October 28, 1986 Finding and Award of the Commissioner for the Seventh District was heard April 29, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and A. Thomas White, Jr.
OPINION
JOHN ARCUDI, Chairman.
Claimant sustained a compensable crush injury to the left hand January 9, 1984 as evidenced in a Voluntary Agreement approved by the Seventh District March 9, 1984. He was awarded permanent partial disability benefits for the loss of use of 15% of his left hand. For some time prior to the left hand injury he had suffered from diabetes and bilateral proliferative diabetic retinopathy; as of January, 1984 claimant’s vision corrected with glasses permitted him to work, read books with normal print and drive. Between June, 1984 and December, 1984 his vision deteriorated and by year’s end he was only able to perceive light. No causal connection between the hand injury and the deterioration of vision was claimed.
What was claimed was that the present blindness when combined with his hand injury resulted in an increased percentage of lost use in the left hand. Claimant contends he now suffers a 30% loss of use. He argues that the pre-existing diabetes and diabetic retinopathy in combination with the injury to his left hand produced a permanent partial disability materially and substantially greater than that which would have resulted from the January 9, 1984 accident alone. He therefore seeks additional benefits under Sec. 31-349, C.G.S.
The Seventh District Commissioner in his October 28, 1986 ruling denied the requested increase in claimant’s permanent partial disability rating. Claimant has appealed the denial of Sec 31-349[1] applicability.
Lovett v. Atlas Truck Leasing, 171 Conn. 577 (1976) and Jacques v. H.O. Penn Machinery Co., 166 Conn. 352 (1974) govern. In Lovett, claimant suffered damage to the rear portion of both eyes from an exploding tire. Prior to the accident he had suffered “astigmatism” which caused a 33% reduction of vision in the right eye and a 20% reduction of vision in the left eye. After, claimant had a 100% loss of vision in the left eye and and 40% loss of vision in the right eye. The Commissioner awarded compensation for total loss of vision in the left eye and 40% loss of vision in the right eye under Sec. 31-349. He based that conclusion on evidence that the resulting loss of vision in the left eye was not “made greater because of the original astigmatism . . . .”. Lovett as well as Jacques ruled that for Sec. 31-349 to apply, the antecedent permanent defect claimed to have combined with the second injury for the increased disability must pre-exist that injury in time. Lovett also held: “. . . the second injury fund may become liable for permanent disability to each part of the body covered by the act with each disability to be considered a separate injury, notwithstanding the fact that more than one injury may arise out of the same accident”, Lovett, supra, at 586.
In the instant matter, three separate injuries seem involved, the pre-existing diabetes with accompanying retinopathy, the compensable January 9, 1984 crush injury to the left hand and the blindness developed a year after the compensable event. The blindness was caused by the pre-existing diabetic condition, but it was a separate injury to a separate part of the body as Justice Bogdanski pointed out in the Lovett language we cited above. Sec. 31-308(b)(7), C.G.S. refers to the loss of vision as one of the specific injuries to be compensated and Sec. 31-307, C.G.S. defines one of the conditions of total incapacity as “(a) Total and permanent loss of sight to both eyes. . . .”. Sec. 31-308(d), C.G.S. covers loss or loss of use of “. . . function of any organ or part of the body not otherwise provided for . . .” in Sec. 31-308. The diminished bodily function caused by the pre-existing diabetes, if compensable, would be covered by Sec. 31-308(d) while the loss of vision would be covered by Sec. 31-307 or Sec. 31-308(b). The statute by such enumeration clearly treats the two as separate injuries. Since the blindness is thus a separate injury and since it did not pre-exist the January 9, 1984 compensable injury to the left hand, Sec. 31-349 cannot apply.
We, therefore, affirm the Seventh District denial of additional permanent disability benefits for the loss of use of the left hand.
Commissioners Frank Verrilli and A. Thomas White, Jr. Concur.