Opinion
CASE NO. 390 CRD-5-85
MARCH 19, 1987
At the trial level claimant was represented by Emmet Nichols, Esq. No appearance was made on behalf of the claimant at the appellate proceeding.
Respondent, Employer Insurer were represented by Robert D. McGann, Esq., McGann, Bartlett Brown.
The Second Injury Fund was represented by Robert Murphy, Esq., Assistant Attorney General.
This Petition for Review from the March 7, 1985 Finding and Award of the Fifth District Commissioner was heard January 30, 1987 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Gerald Kolinsky and A. Thomas White, Jr.
FINDING AND AWARD
The Finding and Award of the trial Commissioner is affirmed and adopted as the Finding and Award of this tribunal.
OPINION
Claimant, in 1981 suffered a non-compensable gunshot wound to his back. As a result of the gunshot wound a bullet was lodged in the left psoas muscle causing him to suffer pain in the back radiating into the left thigh, calf muscle and great toe. The claimant executed an Acknowledgment of Physical Defect dated April 27, 1981 which acknowledged the following defect "(1) S/P abdominal surgical scar, (2) S/P bullet lodged in the left psoas muscle, (3) numbness of the left extremity with limp."
On May 2, 1983, during the course of his employment, the claimant slipped on some oil and fell, further injuring his lower spine. Following that fall he suffered further pain in his low back and left lower extremity. It was stipulated by both parties that "The medical consequences of claimant's fall on May 2, 1983 were attributable in a material degree to the existence of the aforesaid bullet and associated scar tissue in that the bullet was jostled and the scar tissue was traumatized."
The Fifth District March 7, 1985 Finding and Award ordered the Second Injury Fund to pay all benefits. The Fund has appealed, contending that the Commissioner erred in concluding that liability was in the Fund under Sec. 31-325 C.G.S. when the consequences of an injury were greater because of a defect described in the Acknowledgment of Physical Defect. The issue presented is whether such an acknowledgment under Sec. 31-325 imposes the obligation on the Fund when the physical defect was not itself a causal agent in the fall which triggered the 1983 disability.
Section 31-325 states, "No such acknowledgment shall be a bar to a claim by the person signing the same . . . for compensation for any injury arising out of and in the course of employment . . . which injury shall not be found to be attributable in a material degree to the particular condition described therein. . . ." The Fund argues that the acknowledged injury or defect must serve as "the causal nexus between the accident and the bodily injury." We do not so find, as we do not agree that the word injury in Sec. 31-325 is a synonym for accident, Miller v. American Steel Wire Co., 90 Conn. 349 (1916) (especially the dissent), Linnane v. Aetna Brewing Co., 91 Conn. 158 (1916).
In this panel's recent decision, Boutin v. Industrial Components, 237 CRD-6-83 (March 3, 1987) the derivation of the term injury was reviewed at length. De La Pena v. Jackson Stone Co., 103 Conn. 93, 99 (1925), held "A compensable personal injury is an abnormal condition of a living body which arises out of and in the course of the employment. . . . It need not be traced to a definite happening or event. . . . The happening or event includes the entire transaction to which the injury is traced, not only the operative causes but their effect on the body of the injured person." (emphasis added).
It logically follows that the injury which this employee suffered as a result of his May, 1983 fall caused greater effects in disabling claimant's body due to the previous gunshot wound. Those greater effects were part of the injury. Therefore, the liability for the claimant's injury should be and is in the Fund as it was conceded that the consequences of claimant's May, 1983 injury were attributable in a material degree to the original gunshot wound.
We therefore affirm the Commissioner's Finding and Award of March 7, 1985.
Commissioners Gerald Kolinsky and A. Thomas White, Jr. concur.