CASE NO. 677 CRD-8-87Workers’ Compensation Commission
AUGUST 3, 1989
The claimant was represented by Stephen B. Goddard, Esq.
The Respondent-Appellant was represented by George Waldron, Esq., Murphy Beane.
The Second Injury Fund was represented by Brewster Blackall, Esq., Assistant Attorney General.
This Petition for Review from the December 21, 1987 Finding and Award of the Sixth District Commissioner was heard March 31, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, Michael S. Sherman and A. Thomas White, Jr.
OPINION
JOHN ARCUDI, CHAIRMAN.
Involved in this appeal are three distinct injury processes resulting from an admitted compensable injury to claimant’s right shoulder November 4, 1981. The other injuries besides the right shoulder are those to the cervical spine and the left shoulder. The Commissioner’s December 21, 1987 Finding and Award grants claimant benefits for sequential periods from November 5, 1981 until January 15, 1988.[1] Due to preexisting permanent physical impairment and pursuant to Sec. 31-349, C.G.S.[2] the liability for the various periods of benefits found in the award is apportioned between the employer and the Second Injury and Assurance Fund.
Respondents, employer and carrier, in their appeal originally sought to review the Commissioner’s findings as to periods of disability as well as his conclusion concerning allocation of liability. However in their brief they have restricted themselves to the apportionment of liability issues between themselves and the Second Injury Fund. Accordingly, we will consider those other issues abandoned and deal only with the dispute between the Respondents and the Fund.
The Commissioner citing Lovett vs. Atlas Truck Leasing, 171 Conn. 577 (1976) found that the employer had to pay the first one hundred and four weeks for each separate injury process before transferring liability to the Fund on account of a particular part of the body. Thus he found that for the right shoulder the employer had to pay one hundred and four weeks from November 5, 1981 to November 4, 1983. Thereafter for the weeks August 9, 1985 until July 3, 1986 the Fund was responsible for right shoulder disability payments. Similarly for the cervical spines the employer was ordered to make one hundred and four weeks of payments from November 5, 1983 to 1985 and from July 4, 1986 to October 1, 1986. Thereafter the Fund became obligated for cervical spine payments. With regard to the left shoulder the one hundred and four week threshold for transfer of liability was not reached as the employer was ordered to pay from March 14, 1987 to January 15, 1988.
To distinguish the Lovett holding that the employer must pay one hundred and four weeks of benefits for each separate body part injured before transferring liability to the Fund. Respondents rely on the differing provisions in the statute for listed and unlisted body parts. Their argument is that Lovett dealt specifically with eye injuries. Permanent partial disability for eye impairment is included in a statutory provision numbered Sec. 31-308(b). The cervical spine is not a body part listed in Sec. 31-308(b) or its predecessor. In fact the cervical spine as such is listed nowhere in the act. Permanent partial disability for the cervical spine is compensable only under Sec. 31-308(d) which provides compensation for “any organ or part of the body not otherwise provided for herein.”
We cannot agree with that reasoning. The Lovett opinion concerned Sec. 31-308 as it existed in 1967 when it contained essentially the same provisions as now. The court said, “The short answer is that 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, not withstanding the fact that more than one injury may arise out of the same accident.” Lovett vs Atlas Truck Leasing, supra, 585-586. That language clearly indicates the court meant to refer both to the scheduled and the unscheduled body parts.
We therefore affirm the Sixth District Finding and Award with the correction noted in paragraph G of the award and dismiss the appeal. We also award interest to be paid by the Respondent Employer pursuant to Sec. 31-301c(b) from the date of the award to the date of this opinion.
Commissioners Michael S. Sherman and A. Thomas White, Jr. concur.