Opinion
CASE NO. 852-CRD-7-89-4
SEPTEMBER 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 Cori-Lynn Webber, Esq., Assistant Attorney General.
This Petition for Review from the March 27, 1989 Finding and Order of the Commissioner for the Seventh District was heard March 30, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller, and George Waldron.
OPINION
Respondent-Second Injury Fund contends (1) the trial commissioner failed to find sufficient facts to support a finding of a new injury on February 2, 1987 and (2) he erred as a matter of law in transferring liability to the Second Injury Fund.
Claimant first sustained a compensable injury August 11, 1984 suffering "acute carpal tunnel syndrome with medial nerve compression." This resulted in a ten per cent (10%) permanent partial disability of his cervical spine. These facts are reflected in two Voluntary Agreements between the parties approved November 9, 1984 and October 28, 1986 respectively. On April 9, 1986 a Certificate of Acknowledgment of Physical Defect describing the claimant's acknowledged defect as "cervical radiculitis" was approved. A second Acknowledgment of Physical Defect approved October 22, 1986 referred to "changes at the levels of C3-4 and C4-5 resulting in a 10% permanent partial disability to the cervical spine."
Subsequently, there occurred a cervical sprain February 2, 1987 in the course of employment with the respondent-employer. (See Paragraph 1D of the March 27, 1989 Finding and Order) The trial commissioner found the February 2 event to be a new injury attributable in a material degree to the conditions described in the two Certificates of Acknowledgment of Physical Defect.
The March 27, 1989 Finding, Paragraph 1D states:
"A voluntary Agreement on file, by and between the claimant and the respondent-employer, approved October 13, 1987, from which it appears that the claimant, on February 2, 1987, while in the employ of the respondent-employer at New Milford, Connecticut, suffered a "cervical sprain," which injury arose out of and in the course of his said employment. . . ."
Paragraph 8A of the same Finding March 27, 1989 states:
The claimant's injury of February 2, 1987 constitutes a new injury attributable in a material degree to the particular conditions described in the Certificates of Acknowledgment of Physical Defect given by claimant. . . ."
These two paragraphs satisfy the requirements of Secs. 31-325 and 31-349. The Second injury Fund instead seems to be seeking a factual finding and conclusion that the claimant's injury was a relapse or recurrence of the earlier 1984 compensable injury. Similar issues were considered in Hehl v. Kimberly Clark Corp., 774 CRD-7-88-10 (February 21, 1990). In Hehl, we noted that, "whether [a] 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)." Hehl noted:
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. . . .
We think Hehl is therefore dispositive of the issues here raised.
We, therefore, affirm the Seventh District's Finding and Order of March 27, 1989.
Commissioners Robin Waller and George Waldron concur.