Opinion
CASE NO. 3332 CRB-5-96-4CLAIM NO. 0500008054
JANUARY 16, 1998
The claimant was not represented at oral argument. Notice sent to Mitchell M. Berger, Esq.
The respondents were represented by David C. Davis, Esq., McGann, Bartlett, Brown.
The Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General.
This Petition for Review from the April 24, 1996 Finding and Award of Dismissal of the Commissioner acting for the Fifth District was heard January 10, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.
OPINION
The respondents have petitioned for review from the April 24, 1996 Finding and Award of Dismissal of the Commissioner acting for the Fifth District. They argue on appeal that the trier erred by dismissing their claim for transfer of liability to the Second Injury Fund based on an Acknowledgment of Physical Defect form. We agree, and reverse the trial commissioner's decision.
The claimant sustained a compensable fracture of the tibia in his left leg on December 6, 1993. Back on February 21, 1990, the claimant had been examined by a physician who prepared an Acknowledgment of Physical Defect form describing "s/p surgery for sarcoma L. knee." A few days later, the claimant signed this form for his employer, who filed it that same day and received the approval of the Fifth District Commissioner. In the instant proceedings, medical evidence showed that the sarcoma surgery left the claimant without sufficient musculature in his left anterior quadricep, severely restricting the range of knee motion. Dr. Beaumont, an orthopedic surgeon, opined that the claimant's 1993 injury was attributable in a material degree to the loss of knee motion that followed the sarcoma surgery.
"Sarcoma" is defined in Taber's Cyclopedic Medical Dictionary, 12th Ed., as "cancer arising from underlying tissue muscle, bone, and other connective tissue. May affect the bones, bladder, kidneys, liver, detailing of the condition that resulted from the surgery. It was only after collateral evidence was offered showing that the sarcoma surgery resulted in the removal of the claimant's left anterior quadricep muscles that the causal connection between the tibia fracture and the described defect in the Acknowledgment form became clear. In the commissioner's view, this rendered the form fatally vague as a matter of law. The respondents have appealed that decision to this board.
The trier denied the respondents' request to transfer liability for this claim to the Second Injury Fund, however. He held that the description "s/p surgery for sarcoma L. knee" was not specific enough to identify the physical defect itself, at least without some
At the time of the claimant's injury, § 31-325 C.G.S. stated in part:
Whenever any person having a contract of employment, or desiring to enter into a contract of employment, has any physical condition which imposes upon his employer or prospective employer a further or unusual hazard, it shall be permissible for the person to execute in writing . . . an acknowledgment of the physical condition. No acknowledgment shall become effective unless it plainly describes the physical condition, nor until one of the commissioners finds that the person who signed the acknowledgment fully understood its meaning . . . nor until the commissioner, in writing, approves the acknowledgment. . . . No acknowledgment shall be a bar to a claim by the person signing it . . . for compensation for any injury arising out of and in the course of his employment . . . which injury shall not be found to be attributable in a material degree to the particular condition described in the acknowledgment. The rights and liabilities of the parties to the acknowledgment as to injuries . . . within the terms of the acknowledgment shall be as provided by section 31-349."
This statute was repealed in 1995, but is potentially applicable to this case. See P.A. 95-277, § 18 (effective July 1, 1995).
While the appellants contend that the issue in this case is strictly a matter of construing the acknowledgment for ambiguous language, the Fund attempts to paint this issue as one in which the commissioner's discretion as a fact-finder must be given deference, especially since the appellants did not file a Motion to Correct. See Seltenreich v. Stone Webster Engineering Corp., 15 Conn. Workers' Comp. Rev. Op. 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996). We do not believe that a disputed factual issue is a key element in this appeal.
There is no question from the findings that the commissioner found that evidence existed to establish that the claimant's sarcoma surgery directly caused his limited knee motion, leading to the tibia fracture. He dismissed the respondents' claim for transfer because he believed that the description in the Acknowledgment of Physical Defect form had to be specific enough to allow him to determine what the claimed defect was without having to take into account additional medical evidence. This is a purely legal issue, unlike the situation in Wright v. United Technologies Corp., 41 Conn. App. 231 (1996), where the Appellate Court reversed this board's decision because it implicitly involved our making a factual determination as to whether a compensable injury was attributable in a material degree to the condition described in an Acknowledgment form. Id., 237. In the case at bar, we need assume no facts to review the legal sufficiency of the Acknowledgment form.
In Charles v. Ansonia Copper Brass, Inc., 12 Conn. Workers' Comp. Rev. Op. 228, 1447 CRB-5-92-6 (March 23, 1994), this board explained that "the commissioner's inquiry under § 31-325 after approval of the Acknowledgment of Physical Defect is not into the validity of the acknowledgment on its face, but its application so as to permit transfer to the Second Injury Fund. . . . If the trier is unable to determine what the claimed physical defect or condition is, in the absence of some detailing of the condition with sufficient specificity, then the commissioner cannot determine the described physical condition's causal relationship to a subsequent injury." Id., 230-31. These words require that the commissioner be able to tell from the Acknowledgment what part of the body has been affected by a previous condition, so that he may investigate its causal connection to the subsequent compensable injury. They do not require that an actual medical diagnosis or disease be specifically mentioned in the Acknowledgment, nor do they require that all of the physical effects of the defect be enumerated. See Valechko v. Connecticut Light Power, 15 Conn. Workers' Comp. Rev. Op. 55, 56-57, 2062 CRB-6-94-6 (Dec. 1, 1995), aff'd., 43 Conn. App. 902 (1996) (per curiam); Domijan v. City of New Britain, 2067 CRB-6-94-6 (decided June 20, 1996). It is that latter standard which the commissioner incorrectly applied in this case.
There are six elements to an effective Acknowledgment of Physical Defect form under § 31-325. Only two are truly at issue in the instant matter. One, the threshold requirement that the acknowledgment "plainly describe the physical condition, " simply requires that the body part affected by the physical condition be named on the form. That was accomplished here. The other five elements, including whether the injury was attributable in a material degree to the condition described in the acknowledgment, are to be addressed in the second stage of the trial commissioner's examination of the evidence. They should be kept intellectually separate from the threshold requirement that a specific body part be named on the acknowledgment form.
The trial commissioner here seems to have blended those two stages of the § 31-325 fact-finding process. By looking at the medical evidence offered by the respondents before ruling on the facial validity of the Acknowledgment form, the commissioner was combining in one step what should be a distinct two-step process. The form by itself was sufficient to allow this matter to proceed to the second phase of the process, i.e., the determination of whether the condition described in the acknowledgment was related to the compensable injury suffered by the claimant. We thus reverse the commissioner's decision to dismiss the respondents' claim for transfer, and remand this case with instruction that the trier review the medical evidence and make findings concerning the relationship of the compensable injury to the condition resulting from the claimant's left knee sarcoma surgery.
I would uphold the dismissal order of the trial commissioner in this case. I do not agree with the majority that a mere description of the affected body part suffices to meet the standard of § 31-325. In order to "plainly describe" a physical condition, an Acknowledgment must at least describe the defect itself, even if it does not include a medical diagnosis of the cause of that defect. See Valechko, supra, 57 (Vargas, C., dissenting). Here, the "defect" listed in the Acknowledgment form was nothing more than a description of surgery that had been performed on the claimant's knee. If the trial commissioner did not find it sufficient to inform him of the nature of that defect, I cannot fault him. Indeed, I would find the content of that description lacking myself. There is no "plainly described" physical condition in the words "s/p surgery for sarcoma L. knee." See Charles, supra, 231.