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.
JOHN ARCUDI, CHAIRMAN.
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.
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.