Opinion
CASE NO. 806 CRD-2-89-1
MAY 14, 1990
The claimant was represented by Warren Miller, Esq., and Richard D. Haviland, Esq. Neither appeared at oral argument, however a brief was filed by Atty. Haviland.
The respondent-CNA was represented by Anne M. Kelly, Esq., and Lucas Strunk, Esq., Pomeranz, Drayton Stabnick.
The respondent-Kemper Insurance was represented by Tracy Green Cleary, Esq.
The Second Injury Fund did not participate in the instant proceedings as its only obligation was pursuant to the Second District Commissioner's October 13, 1989 Supplemental Finding and Award of Compensation Pursuant to Sec. 31-301(b) C.G.S.
This Petition for Review from the December 28, 1988 Finding and Award of the Commissioner for the Second District was heard February 2, 1990 before a Compensation Review Division panel consisting of the Commissioner Chairman, John Arcudi, and Commissioners James Metro and George Waldron.
OPINION
Respondent CNA Insurance seeks to overturn the Second District December 28, 1988 Finding and Award. It argues that the claimant did not suffer a new back injury on October 3, 1986 and that therefore the respondent Kemper Insurance Group had continuing liability by reason of claimant's prior compensable injury of February 20, 1979. Claimant John Glynn was employed by the respondent employer Terry Corporation. On February 20, 1979 respondent Kemper Insurance Group insured that employer's worker compensation liability. On October 3, 1986 respondent CNA/insurance company was the workers' compensation carrier.
Whether claimant suffered a new compensable back injury rather than a Sec. 31-307b recurrence or relapse of his February 20, 1979 injury is a factual determination for the trial commissioner to make. Fair v. People's Savings Bank, 207 Conn. 535, 541 (1988); Herbst v. Hat Corporation of America, 130 Conn. 1, 4 (1943). We cannot disturb his conclusions unless the conclusion reached was without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair, supra. The New London neurosurgeon, Dr. John H. German, testified in his November 19, 1987 deposition and in written reports with reasonable medical probability that a new work injury in fact did occur October 3, 1986. That testimony forms a sufficient evidentiary basis for the conclusion in question. Therefore the commissioner's finding must stand.
Respondent CNA argues further even if the 1986 work events constituted a new injury that respondent Kemper should share in the payments due claimant for periods after October 3. It cites as support for that assertion Mund v. Farmers' Cooperative, Inc., 139 Conn. 338 (1952). Mund found that there were two accidental injuries, July 29, 1946 and June 29, 1950. As is the case here, different carriers were on the risk on each of the Mund injury dates. However the Mund commissioner also found that each of those work accidents was an equal contributing cause to claimant's disability and therefore liability was apportioned equally.
That is not the situation in the instant matter. There was no such finding. In addition the Mund case arose under a statute significantly different from the present law. The 1967 amendments, P.A. 842, created a specific for the back now in Sec. 31-308(b). But even more important for this case, P.A. 842 in 1967 provided in Sec. 31-349 that on the happening of a second injury, the responsible employer at that time was responsible for the full liability. P.A. 79-376 enacted in 1979 reduced the compensation payable by the amount of "any compensation benefits payable or paid with respect to the previous disability." In fact the Second District in this case did award additional benefits to claimant as a result of the 1979 injury, raising the previously found back specific disability from ten to twenty per cent pursuant to Sec. 31-308(b)(13). Thus if claimant is later found to have a back disability greater than twenty per cent, CNA will only be responsible for the increase in permanent partial disability beyond that amount. Thus Mund is inapplicable to the present set of facts.
We therefore affirm the trial Commissioner's December 28, 1988 Finding and Award and grant interest pursuant to Sec. 31-301c(b) on any amount to which that statute applies.
Commissioners James Metro and George Waldron concur.