CASE NO. 214 CRD-2-83Workers’ Compensation Commission
MARCH 10, 1987
Claimant was represented by Juri E. Taalman, Esq., Taalman Phillips.
Respondent employer and insurer were represented by Edward D. O’Brien, Jr., Esq.
Respondent-insurer Second Injury Fund was represented by Morton H. Greenblatt, Esq., Assistant Attorney General.
This Petition for Review from the March 10, 1983 Finding and Award of the Commissioner for the Second District was heard November 30, 1984 before a Compensation Review Division panel consisting of Commissioners A. Paul Berte and Gerald Kolinsky.
FINDING AND AWARD
1-3. Paragraphs 1 through 3 of the Second District Commissioner’s Finding and Award are made paragraphs 1 through 3 of this Division’s Finding and Award.
4. Prior to the October 3, 1979 compensable injury claimant had pre-existing disabilities to the back and neck.
5. Paragraph 6 of the Second District Commissioner’s Finding and Award is made Paragraph 5 of this Division’s Finding and Award.
6. It was Dr. Sculco’s opinion that both the cervical and lumbar surgeries were caused by the October 3, 1979 events combined with the pre-existing disability and resulting in total disability as of March 10, 1983. It is so found.
7. As a result of the pre-existing injuries and the October 3, 1979 compensable accident claimant will suffer permanent partial disability of both the lumbar and cervical spines, disability which will be materially and substantially greater than would have occurred from the October, 1979 injury alone.
8. Paragraph 10 of the Second District Commissioner’s Finding and Award is made paragraph 8 of this Division’s Finding and Award.
9. The respondent-employer has paid a number of weeks of benefits to claimant for the October 3, 1979 occurrence.
10. The respondent has complied with the notice provision of Sec. 31-349 C.G.S.
11. When the respondent has paid 104 weeks of benefits for the lumbar back disability then the Second Injury Fund will be ordered to pay all benefits beyond that point for the lumbar back disability.
12. When the respondent has paid 104 weeks of benefits for the cervical disability, then the Second Injury Fund will be ordered to pay all benefits beyond that point for the cervical disability.
This matter is remanded to the Second District Commissioner for further proceedings in accordance with the accompanying opinion.
OPINION
JOHN ARCUDI, Chairman.
A Voluntary Agreement between the two parties approved July 10, 1981 declares that claimant suffered a compensable injury to her back October 3, 1979. Previous to that injury, Dr. Mario Sculco, a Norwich neurosurgeon, had treated claimant for neck and back problems. That doctor testified that she had some degree of impairment to both areas which pre-existed the October, 1979 events. The Commissioner, relying mainly on Dr. Sculco’s testimony, found that the 1979 work injury combined with the pre-existing impairment resulted in a disability materially and substantially greater than would have occurred from the 1979 injury alone and ordered the Second Injury Fund under Sec. 31-349, C.G.S. to assume all liability for benefits after the payment of 104 weeks compensation.
The Fund appeals the Commissioner’s order arguing essentially (1) that Sec. 31-349 does not apply when preexisting impairments are not themselves substantial. In this instance the only medical witness was offered by the claimant, i.e. Dr. Sculco. That doctor testified that the pre-existing cervical and lumbar impairments contributed 5% to the 14% cervical disability and a measurable portion of the lumbar disability. As an appellate tribunal, we cannot substitute our factual conclusions for those of the Commissioner, True v. Longchamps, Inc., 171 Conn. 476 (1976). Therefore, to sustain the Fund on this point we would need to hold as a matter of law that the substantiality concept which Sec. 31-349 applies to the resulting disability refers also to the pre-existing impairment. We see no justification in the statute for such an interpretation.
However, the Fund’s second argument does merit greater consideration. Lovett v. Atlas Truck Leasing, 171 Conn. 577
(1976) holds that the transfer of liability mandated by Sec. 31-349 is to be effected after 104 weeks of benefits calculated separately for each discrete part of the body. Thus, there need to be 104 weeks of benefits payable for lumbar back disability before the Fund may be ordered to pay benefits on account of lumbar back disability and similarly with respect to cervical spine disability. The Fund’s liability is “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 (Citation omitted).” Lovett v. Atlas Truck Leasing, supra, 586.
Since the trial Commissioner has not entered an order against the Second Injury Fund, our comments concerning Lovett do not yet pertain given this matter’s present status. However, the Fund’s appeal indicates that sometime after the October 10, 1983 Finding and Award 104 weeks of payment will have been reached. The matter is therefore remanded to the District for further hearings and findings consonant with this opinion.
Commissioners A. Paul Berte and Gerald Kolinsky concur.