Opinion
CASE NO. 441 CRD-3-86
MAY 21, 1987
The claimant was represented by Albert R. Annunziata, Esq.
The respondents were represented by Edward O'Brien, Jr., Esq.
This Petition for Review from the December 19, 1985 Finding and Award of the Third District Commissioner was heard September 26, 1986 before a Compensation Review Division panel consisting of Commissioners Gerald Kolinsky, Andrew P. Denuzze and Michael S. Sherman.
FINDING AND AWARD
1-16. Paragraphs 1 through 16 of the trial Commissioner's Finding and Award, dated December 19, 1985, are made paragraphs 1 through 16 of this Division's Finding and Award.
17. Claimant has a permanent partial disability of the lumbar spine in the amount of thirty percent, of which ten percent was attributable to his prior back injury of 1951, and the remaining twenty percent was due to the 1972 injury.
18-20. Paragraphs 18 through 20 of the trial Commissioner's Finding and Award, dated December 19, 1985, are made paragraphs 18 through 20 of this Division's Finding and Award.
21. The disability caused by both the 1951 and the December 6, 1972 accidents is materially and substantially greater than that which would have resulted from the latter injury alone.
Paragraphs a. through h. of the Commissioner's Order and Award, dated December 19, 1985, are made paragraphs a. through h. herein.
OPINION
The claimant injured his back on December 6, 1972 and had surgery to correct said injury on May 13, 1975. At the formal hearings held herein, the claimant's surgeon testified that the claimant reached maximum medical improvement on October 20, 1981, at which time he suffered a permanent partial disability of thirty to thirty-five percent of the back, however of that disability approximately ten percent was attributable to a 1951 spinal surgery which Dr. Robinson had previously performed on the claimant for a prior back injury.
In her Finding and Award, the Commissioner found that the claimant had a permanent partial disability of the lumbar spine in the amount of thirty percent (F A, paragraph 17) and ordered the respondents to pay the full thirty percent disability of 156 weeks compensation at the 1972 compensation rate.
The respondents have appealed contending that the Commissioner erred in failing to apportion the thirty percent permanency rating between 1951 and 1972, so that long would have been attributable to the claimant's 1951 injury, and 20% attributable to the 1972 injury, which would require the respondents to pay only 104 weeks of compensation to the claimant.
It should be noted that in 1951, the Workers' Compensation Act made no provision for payment of permanent partial disability of the back; it was not until October 1, 1967 that Section 31-308 was amended to allow payment of specific compensation for a back injury.
In their brief and oral argument before this panel, respondents objected to the Commissioner awarding the full thirty percent as a consequence of the 1972 injury, but they fail to note the implications raised by Section 31-349, Conn. Gen. Stats., the first sentence of which states, "The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, . . .".
Relating the statute to the facts at hand, the claimant suffered previous disability in 1951 and did not receive permanent partial disability therefor and is not precluded from compensation for the later injury in 7972.
Section 31-349 continues as follows:
"If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of 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. . .notwithstanding the fact that part of such disability was due to prior accidental injury. . ." .
Again relating the statute to the facts, the claimant who had a previously incurred 10% permanent disability of the back due to the 1951 accident, incurred a second disability as a result of the 1972 injury, which brought his total disability to 30%.
Reviewing the testimony of Dr. Robinson, given on August 20, 1984, as contained in the transcript of his testimony we note the following question and answer at page 8 thereof:
Q. Do you have an opinion as to whether the total permanent disability of 30/35 percent referrable to the back is greater because the first back injury of 10 percent is added to the second injury of 1972?
A. Well, it is the second — the disability arising from the second injury is greater than that should it have been had the first injury not taken place. I think if the first injury had not taken place then the second, then the disability would be below that of 20 to 25 percent."
As the Commissioner made no finding at all, as regards the question of whether or not the claimant's 30% disability was materially and substantially greater than that which would have resulted from the second injury alone, we are modifying her decision pursuant to the authority granted by Section 31-301(a), Connecticut General Statutes.
The evidence supporting the Commissioner's findings, and the additions to paragraph 17 and 21 which we have added, are clearly based upon the testimony of Dr. Robinson, and bring the claimant's disability within the scope of Section 32-349, Connecticut General Statutes, which mandates that an injured claimant, having a disability caused by pre-existing impairment, suffers a second disability 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. . ." . The statute does not exclude back injuries incurred prior to October 1, 1967 in enumerating pre-existing physical conditions, and thus we are of the opinion that this claimant is entitled to the full thirty percent awarded him by the Commissioner.
The appeal is dismissed.
Commissioners Andrew P. Denuzze and Michael S. Sherman concur.