Opinion
CASE NO. 149 CRD-1-82
NOVEMBER 10, 1986
The claimant appeared pro se.
Respondent-Employer was represented by James L. Pomeranz, Esq., POMERANZ, DRAYTON STABNICK.
Respondent Second Injury and Compensation Assurance Fund was represented by Robert Murphy, Assistant Attorney General.
This Petition for Review from the June 8, 1982 Finding and Award of the Commissioner for the First District was heard June 24, 1983 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Andrew Denuzze and Gerald Kolinsky.
FINDING AND AWARD
The Finding and Award of the First District Commissioner is affirmed and adopted as the Finding and Award of this tribunal.
OPINION
Claimant was injured as a result of two (2) falls occurring March 8, 1979 and March 17, 1979. He alleged the falls aggravated a pre-existing back condition.
In August, 1977 the claimant had executed a Waiver On Account of Physical Defect describing his defect as "lumbar scar after lumbar disc surgery". The Waiver came after the surgical excision of a herniated disc at L4-L5 in May, 1977. In May and October, 1980, claimant underwent additional lower back surgeries. The May, 1980 surgery excised a recurrent herniated disc at the L4-L5 level on the left and the October, 1980 surgery excised an extruded disc at the L4-L5 level.
This matter involves 31-325 C.G.S. prior to its amending in 1979 under P.A. 79-376 which, inter alia, substituted "waiver" for "acknowledgement".
The issue presented on appeal was whether the Waiver executed by the claimant effectively shifted injury liability coverage to the Second Injury and Compensation Assurance Fund as provided by 31-349 C.G.S. Counsel for the Second Injury Fund argued that claimant's Waiver was not validly executed under the provisions of 31-325 C.G.S. which provides, "No . . . waiver shall become effective unless the defect in question is plainly described. . . ." Further, the Second Injury Fund argued that under 31-325, the Fund was only liable for injuries which were "attributable in a material degree" to the described condition. Thus, if the Second Injury Fund was held liable, it would only be liable for injuries attributable in a material degree to the lumbar scar. The employer argued that the physical condition described in the Waiver should be construed so as to include the lumbar disc surgery.
"What is meant in 31-325 by the term "plainly described"? Does the term allow conditions to be implied from physical defects stated in the Waiver? Under 1-1 C.G.S., we are bound to construe statutes according to the common usage of the language. The term "plainly described" is an unambiguous term and thus we cannot go behind the words "lumbar scar" to construe a condition which was intended to be described. "Since statutory interpretation presents a question of law . . . we note that a cardinal rule of statutory construction is that statutes are to be construed to give effect to the apparent intention of the law making body . . . If the language of the statute is clear, it is assumed that the intention is expressed by the words themselves and, therefore, there is no need to construe the statute . . . for where the wording is plain, courts will not speculate as to any supposed intention. . . ." Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6 (1980) (citations omitted).
Thus, the meaning of the term "plainly described" is clear on its face. Further, the unambiguous construction of the term does not contravene the legislative intent of the statute. The legislature intent of 31-325 was summarized in Gagnon v. United Aircraft Corporation, 159 Conn. 302, 304-5 (1970), "The purpose of this type of statutory exception is to encourage conditional employment of those persons who are affected by or susceptible to a particular disease or injury to a degree which would ordinarily prevent them from securing a job." See also, Jacques v. H.O. Penn Machinery Co., 166 Conn. 352 (1974).
We fail to see how construing the physical defect of the claimant as that which is plainly described will negatively effect the employment of persons who have executed a Waiver under C.G.S. 31-325.
We hold that the Commissioner did not err in the conclusion that the only described physical condition waived by the claimant was a lumber scar and not L4-L5 surgery. As the Commissioner's Finding correctly applied conclusions of law to the subordinate facts, his decision must stand. Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979).
Commissioners Andrew Denuzze and Gerald Kolinsky concur.