Opinion
CASE NO. 774 CRD-7-88-10
FEBRUARY 21, 1990
The claimant appeared, pro se, at the trial level. As the appeal in the above matter concerned issues between Kimberly Clark Corp. and The Second Injury Fund, no appearance on behalf of the claimant was necessary.
The respondent-employer was represented by Philip F. Spillane, Esq., Cramer Anderson.
The respondent Second Injury Fund was represented by Brewster Blackall, Esq., Assistant Attorney General. However, by agreement of the parties oral argument was waived and the matter decided on the basis of papers submitted.
This Petition for Review from the September 26, 1988 Finding and Order of the Commissioner for the Seventh District was decided on the basis of briefs submitted pursuant to the October 27, 1989 scheduled hearing before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew P. Denuzze and Robin Waller.
OPINION
Claimant sustained a compensable back injury March 15, 1980. As a result he underwent a left partial laminectomy at L3-4 July 29, 1980. An acknowledgment of Physical Defect was filed by the claimant on May 9, 1984. The Acknowledgement of Physical Defect described the claimant's impairment as "10% permanent partial disability to lumbar spine. Lumar (sic) Radiculitis secondary to herniated intervertebral disc at L3-4." The claimant sustained further injuries to his back circa October 23, 1986 and February 4, 1987 for which Voluntary Agreements were executed and approved. The Agreements obligated the employer to pay an additional 10% loss of use of his back. Pursuant to Sec. 31-325 the employer sought reimbursement of this payment from the Second Injury Fund. The commissioner concluded that the additional disability sustained by the claimant was "the result of increased in spondylosis and arthritis accelerated by the repetitive lifting and bending involved in his work form January, 1981 to October, 1986 and caused greater effects in disabling the claimant due to the March 15, 1980 injury." See Paragraph #13. He therefore, ordered the Second Injury Fund to reimburse the employer for the additional 10% permanent partial disability benefits paid to the claimant in his September 26, 1988 Finding and Order.
The Second injury Fund has appealed. It contends the further disability of claimant's lumbar spine was the result of a relapse or reoccurrence of the earlier injury sustained March 15, 1980 and therefore not subject to the Sec. 31-325 Acknowledgment. The Fund attacks the factual findings of commissioner that the 1986 and 1987 disabilities were injuries and not recurrences of the old.
Whether claimant sustained a relapse or recurrence of a previous compensable injury is a question determinable by the trial commissioner. Janov v. General Electric. Co., 4 Conn. Workers' Comp. Rev. Op. 44, 491 CRD-4-86 (1987). His conclusions will not be disturbed unless contrary to law, without evidence or based on unreasonable or impermissible factual inferences. Fair v. People's Savings Bank, 207 Conn. 535 (1988). In the instant matter the record below shows the deposition of Dr, Jesse S. Manlapaz, M.D. and his report of November 25, 1986 provided supporting evidence from which the trial commissioner could reasonably conclude that the claimant's subsequent back related problems were new injuries. The 1986 and 1987 disabilities were contributed to by the weakened condition of the back created by the 1980 injury, but there were new precipitating causes, the repetitive trauma work occurring after the May 9, 1984 acknowledgement of the physical defect.
The statute which controls Acknowledgments of Physical Defects is Sec. 31-325 C.G.S. Sec. 31-325 provides in part:
Whenever any person having a contract of employment, or desiring to enter a contract of employment, has any physical defect which imposes upon his employer or prospective employer a further or unusual hazard, it shall be permissible for such person to execute in writing for himself or his dependents, or both, an acknowledgment of physical defect. . . The rights and liabilities of the parties to such an acknowledgment as to injuries arising out of and in the course of the employment and within the terms of such acknowledgment shall be such as are provided by Sec. 31-349. . . .
Sec. 31-349(a) provides in pertinent part:
Employees shall not be denied any of the benefits provided by any provisions of this chapter by reason of the execution of an acknowledgment of physical defect. but the benefits specified in this chapter which would be payable except for the execution of such acknowledgment shall be paid entirely out of the second injury fund. . . .
The acknowledged defect from the previous injury contributed to the new permanent disability, but the new additional permanent disability would not have occurred but for the repetitive trauma subsequent to May, 1984. The trier may have stated his findings more clearly, but those findings support his conclusion and the conclusion reached was not contrary to law.
We, therefore, affirm the Seventh District Commissioner's September 26, 1988 Finding and Order.
Commissioners Andrew P. Denuzze and Robin Waller concur.