Opinion
CASE NO. 1923 CRB-2-93-12
AUGUST 31, 1995
The claimant was not represented at oral argument or at the formal hearing that resulted in the award on appeal here. At trial, he was represented by Thomas Albin, Esq., Embry Neusner.
The respondent was represented by Booth M. Kelly, Jr., Esq., Murphy Beane.
The Second Injury Fund was represented by Taka Iwashita, Esq., Assistant Attorney General.
This Petition for Review from the December 10, 1993 Finding and Award of the Commissioner acting for the Second District was heard December 2, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.
OPINION
The respondent has petitioned for review from the December 10, 1993 Finding and Award of the Commissioner for the Second District. The commissioner found that the claim of the decedent and his dependent daughter for compensable back and neck injuries was transferable to the Second Injury Fund upon the payment of 208 combined weeks of total disability and dependency benefits. The respondent claims that the commissioner improperly applied § 31-349 C.G.S. by requiring more than 104 weeks of disability to be paid before transfer. We affirm the trial commissioner's decision.
The trial commissioner found that the decedent Michael Abbott sustained compensable back and neck injuries on August 3, 1990, which were accepted by voluntary agreement. The decedent had a history of injuries to his back and neck. Compensable surgery was performed in 1991 and again in 1992; the decedent's death on November 5, 1992 was determined to have been caused by the October 8, 1992 neck surgery. The decedent had received total disability benefits from the date of injury until the date of his death. A voluntary agreement was also reached entitling the decedent's dependent daughter to death benefits under § 31-306 C.G.S. In light of the pre-existing condition, the respondent attempted to transfer liability to the Second Injury Fund as of August 1, 1992, the 104th week of liability. However, the Fund refused to accept the claim until August 1, 1994, the 208th week of liability. Noting that the decedent was being furnished care for his back and neck conditions concurrently, the commissioner agreed with the Fund and ordered transfer of the claim after 208 weeks. The respondent appealed that decision.
The respondent argues that there is no provision in § 31-349 for apportionment of the 104-week period between different body parts, nor does the statute require that 104 weeks be paid on each body part before transfer. It argues that neitherLovett v. Atlas Truck Leasing, 171 Conn. 577 (1976), norHernandez v. Gerber Group, 222 Conn. 78 (1992), requires the result reached by the trial commissioner.
The relevant parts of § 31-349 provided at the time of the claimant's injury: "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 . . . 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 . . . . The 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."
In Lovett, supra, our Supreme Court considered the case of a claimant who suffered numerous severe injuries from the explosion of a truck tire he was fixing in the course of his employment, including the permanent partial impairment of the claimant's right eye. The defendant employer and insurer argued on appeal that the commissioner should have taken into account payments made by them for other disabilities arising from the tire explosion in calculating the first 104 weeks of compensation paid by the employer before the Second Injury Fund could assume liability for the eye injury. Noting that the defendants seemed to be claiming that the remedial objectives of the Workers' Compensation Act were restricted to accidents instead of injuries, the Court stated "[t]he 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, notwithstanding the fact that more than one injury may arise out of the same accident." Id., 585-86 (emphasis added). (For the record, the Court did not provide a "long answer" to the defendants' argument.)
In Hernandez, supra, the Court distinguished Lovett. "Although all of the injuries in Lovett had the same cause, that cause was unrelated to the preexisting condition, and the preexisting condition entered the chain of causation only with respect to the injury to the right eye. In the present case, on the other hand, the preexisting condition was at the beginning of the causal chain: Hernandez had a heart condition that, in conjunction with his work assignment, led to a myocardial infarction, treatment of which led to a leg injury. As a factual matter, the requisite causal linkage therefore existed between preexisting disability and subsequent injury, permitting assignment of liability for the subsequent injury to the Fund." Id., 86. The respondent contends that Hernandez rejects the argument that 104 weeks of compensation must be paid on each body part before liability can be transferred under § 31-349, or at the very least renders Lovett inapposite to the case at bar. We disagree.
The trial commissioner found that the claimant suffered from a pre-existing condition that materially and substantially contributed to the disability resulting from his compensable injury. Moreover, the commissioner found that the claimant had suffered distinct and unrelated injuries from the same accident. In Hernandez, the claimant's injuries were causally related sequelae of a preexisting heart condition, and the claimant's heart attack led to his leg injury. In the case before this Board, however, the claimant's injuries are not related to each other, even though they are related to a pre-existing condition which renders them transferable to the Second Injury Fund. Therefore, Hernandez is not controlling here. The respondent's contention that its holding prohibits the result reached by the trial commissioner is simply incorrect; Hernandez may distinguishLovett, but does not overrule it.
Indeed, Lovett is directly on point insofar as it states that each disability is considered a separate injury under § 31-349(a), even though more than one injury may arise out of the same accident. Id., 586; see also Vieta v. Consolidated Cigar, 7 Conn. Workers' Comp. Rev. Op. 48, 49-50, 677 CRD-6-87 (Aug. 3, 1989). Here, the claimant suffered two injuries from one accident, resulting in two separate and unrelated impairments to his back and neck. The commissioner's decision to require 104 weeks of benefits to be paid on each body part before liability transferred to the Second Injury Fund is plainly consistent withLovett, supra, and Vieta, supra. Where a claimant has suffered more than one compensable injury from an accident, and those injuries are not causally related to each other as in Hernandez, supra, we reiterate that "disability" as used in § 31-349(a) refers to each individual injury for the purpose of calculating the 104-week period. Lovett, supra, 585-86.
The trial commissioner's decision is affirmed.
Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.