Opinion
CASE NO. 472 CRD-3-86
DECEMBER 16, 1987
The claimant was represented by Thomas F. Keyes, Jr., Esq.
The respondents-appellants were represented by Douglas Drayton, Esq., Pomeranz, Drayton Stabnick.
The respondent-appellee Second Injury Fund was represented at the trial level by Robert Murphy, Esq., Assistant Attorney General. However, the Second Injury Fund did not appear for oral argument nor did they file a brief.
This Petition for Review from the March 27, 1986 Finding and Award of the Commissioner for the Third District was heard May 29, 1987 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew P. Denuzze and A. Thomas White, Jr.
OPINION
Claimant sustained compensable injuries May 31, 1977, a compression fracture of the D-12 vertebra and a peripheral fracture of the right acetabular rim, when he slipped on some oil at work. The treating doctor discovered evidence of pre-existing Paget's Disease which had been asymptomatic before the May 31 happening.
No dispute exists as to compensability as a Voluntary Agreement between the parties was executed and approved by the Third District Commissioner February 7, 1983. Rather, the litigation involves extent of disability and Sec. 31-349 issues between the Employer-Respondent and the Second Injury Fund.
Section 31-349, C.G.S. provides in pertinent part: If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or less 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, less any compensation benefits payable or paid with respect to the previous disability, and necessary medical care, as elsewhere provided in this chapter, notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes.
Patent inconsistencies in the trial Commissioner's March 27, 1986 Finding and Award necessitate a remand for clarification and further hearings. That Award orders Respondents to pay: "1. Compensation for temporary total disability from September 12, 1977 to September 19, 1978 at $135.00 weekly", and "2. Compensation from September 19, 1978 until April 30, 1979 for temporary partial disability". Yet paragraph 8 of the Finding declares, "Claimant returned to work September 12, 1977, and continued to work until he became disabled April 30, 1979".
It is obvious that claimant could not have worked during the entire twenty-month period in question and still be found to be totally disabled for twelve months of the same period. Neither are there any supporting findings underlying the conclusion that he was partially disabled for the other eight months.
Paragraph 11 of the Finding and the penultimate paragraph of the Commissioner's Order dismissed the Respondent-Employer's Sec. 31-349 claim against the Second Injury Fund on the basis of insufficient notice. But both the attorney for the Fund and for the carrier stated at the conclusion of the July 3, 1984 hearing that the notice and the Fund liability issue were a "separate problem", not one that had been addressed by the parties at that hearing. Consequently, it was error for the Commissioner to make any decision before the parties involved had been heard on that particular point. On remand, the Fund and the Employer will have that opportunity.
The other Sec. 31-349 issue concerns the extent of claimant's compensable permanent disability. The Finding treats that claim in paragraphs 12, 13 and 14. It awards the "rating of the treating physician", but the treating physician found twenty-five percent (25%) permanent partial disability and later, "an additional five per cent increase . . . a total of thirty per cent disability". Presumably, the Commissioner meant to award the thirty per cent, but the language employed does not make that clear.
In any event, the Employer attacks that award as Dr. Ralph De Ponte, the treating physician in question, attributed only five per cent of the total disability to the fracture of the dorsal vertebra and the acetabular with the remaining disability due to Paget's disease. There was also evidence from Dr. David Poverman, who examined on behalf of the Employer, that Claimant had only 15% total permanent disability, but Dr. Poverman had concluded that at least half of that permanent disability was due to Paget's disease.
As we read Sec. 31-349, it is not necessary that the total resultant permanent disability be causally related only to the second injury. Sec. 31-349 simply states that if the total resultant disability from both causes, not the new compensable event alone, is greater than it would have been from the second injury standing alone, then the Respondents are liable for the combined total thus caused, Aurora v. Miami Plumbing Heating Inc., 6 Conn. App. 45 (1986), a Per Curiam opinion affirming this Division's decision, 238 CRD-7-83, 2 Conn. Workers' Comp. Rev. Op. 113 (December 10, 1984). Hence, it was not necessary here to find that the May 31, 1977 compensable injury caused or aggravated the Paget's disease to make compensable the entire resultant disability. In this view, the trial Commissioner was correct, but the matter must be remanded for the other reason previously cited.
Respondents' appeal is sustained and the matter is remanded to the Third District for further proceedings consistent with this opinion.
Commissioners Andrew P. Denuzze and A. Thomas White, Jr. concur.