HEYWARD v. THE JOSEPH KELLY CO., INC., 635 CRD-3-87 (7-24-89)


CASE NO. 635 CRD-3-87Workers’ Compensation Commission
JULY 24, 1989

The claimant was represented by Jack D. Barnston, Esq., Barnston, Teicher Griffin.

The respondents were represented by James L. Pomeranz, Esq., and Jason Dodge, Esq., Pomeranz, Drayton Stabnick.

This Petition for Review from the September 9, 1987 Finding and Award of the Commissioner for the Third District was heard January 27, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Darius Spain and Andrew Denuzze.



Claimant’s appeal from the Third District September 9, 1987 Finding and Award seeks to establish (1) that he remained totally disabled after December 3, 1985 and (2) claimant’s pre-existing rheumatoid spondylitis coupled with the compensable February 14, 1985 back injury caused a disability materially and substantially greater than would have resulted from the work accident alone. Claimant further argues that the work injury and the antecedent disease together caused a 20% permanent partial disability of the back rather than the 5% found by the Commissioner.

Whether claimant remained totally incapacitated after December 3, 1985 is a question of fact within the determination of the trial Commissioner. Rakiec v. New Haven Wrecking Co., 112 Conn. 432 (1930). On review we need only decide whether there was evidence to support the Commissioner’s conclusions and whether such conclusions were based on impermissible or unreasonable factual inferences or were contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

The September 22, 1986 transcript contains testimony by Dr. Mark L. Schwartz from which the trial Commissioner could reasonably have concluded that the claimant was not disabled from work generally but merely from his former occupation. (TR. 9/22/86, p. 114) Dr. Alan Goodman also so testified (TR 10/21/86 p. 30). Under sec. 31-307 C.G.S. a total incapacity to work has been construed as “the inability of the employee, because of his injuries, to work at his customary calling or at any other occupation which he might reasonably follow.” Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 456 (1951). Utilizing this standard we cannot say that the conclusion below was contrary to law, without evidence or so unreasonable as to justify judicial interference. Fair, supra; Bailey v. Mitchell, 113 Conn. 721 (1931).

The second issue, raised concerns Sec. 31-349, C.G.S.[1]
It therefore may involve the Second Injury and Compensation Assurance Fund. Dr. Alan Goodman testified the total permanent back disability was 20 per cent (TR 10/21/86 p. 22, 29). Under Sec. 31-308(b)(13) 20% permanent partial disability of the back equates to 104 weeks compensation. If that potential 104 weeks is added to the 42 weeks total disability benefits ordered between Feb. 14 and Dec. 3, 1985, then there obviously would be a second injury liability.

At any rate even if total benefits do not reach the Sec. 31-349 threshold, the employer is still responsible for the total combined disability, and not just that relating to the work accident alone, Fusco vs. TRW Geometric Tool, 4 Workers Comp. Rev. Op. 132, 472 CRD-3-86 (1987), Pich vs. Pratt
Whitney, 4 Conn. Workers Comp. Rev Op. 163, 354 CRD-6-84
(1988). Therefore further proceedings need to be held to determine any employer responsibility for disability beyond that relating to the work accident alone and also to determine second injury fund involvement.

We, therefore, remand for further proceedings consistent herewith.

Commissioners Darius Spain and Andrew Denuzze concur.

[1] Sec. 31-349(a) Compensation for second disability. Payment of insurance coverage. (a) 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. . . Thereafter all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund.