author: BERDON, J.

text:
    PETER WILLIAMS v. BEST CLEANERS, INC., ET AL.
    (15171)
    Callahan, Borden, Berdon, Katz and Palmer, Js.
    Argued March 17, 1995
    decision released January 23, 1996

      Michael J. Belzer, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellant (defendant second injury fund).

      Michael J. Finn, with whom was Robert G. Montstream, for the appellee (named defendant).

      Margaret E. Corrigan, with whom, on the brief, was James L. Pomeranz, for the appellees (defendant Broadbrook Cleaners et al.).

       The motions by the named defendant and by the defendant Broadbrook Cleaners et al. for reargument were granted March 5, 1996. This opinion has been superseded by Williams v. Best Cleaners, Inc., 237 Conn. 490, 677 A.2d 1356 (1996).

   BERDON, J.

The principal issue in this appeal from the workers’ compensation review board is whether a “disability” is to be evaluated in terms of the claimant’s loss of earning capacity or his degree of medical impairment, for purposes of determining when liability should be transferred to the second injury fund (fund) pursuant to General Statutes (Rev. to 1983) § 31-349.

Although the claimant, Peter Williams, is not a party to this appeal, he originally brought a claim for compensation against several of his former employers, their insurers and the fund. The defendant employers are Best Cleaners, Inc., Windsor Dry Cleaners, Broadbrook Cleaners and Nu-Life Cleaners (collectively referred to as the employers). The workers’ compensation commissioner (commissioner) awarded compensation to the claimant and ordered liability for the claim transferred to the fund in accordance with § 31-349. The workers’ compensation review board (board) affirmed the decision of the commissioner. The fund appealed the board’s decision to the Appellate Court, and the appeal was transferred to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the decision of the board.

The underlying facts are undisputed. The claimant worked in the dry cleaning business for the employers between 1963 and 1983. Part of the claimant’s job during that time consisted of removing items of wet clothing from a cleaning tank and placing them in a dryer. The cleaning fluid used on the clothes was perchloroethylene, a volatile chemical that is widely used throughout the industry as a cleaning agent. The claimant was exposed to this chemical in its liquid or vapor form throughout his entire career in the dry cleaning business.

In the late 1970s, the claimant began to experience breathing problems. In 1977, he was diagnosed as suffering from asthma. In 1982, when the claimant’s asthma symptoms became persistent, he was referred to Thomas J. Godar, a pulmonary specialist. The claimant furnished Godar with the following history. He was fifty-nine years old, and had smoked cigarettes from age ten until he was forty-eight. He had worked in the dry cleaning business, where he was exposed on a regular basis to perchloroethylene and other cleaning solutions. On the basis of this history, Godar performed pulmonary function tests on the claimant, and these tests revealed that the claimant was suffering from obstructive aiiway disease with an asthmatic component. The claimant left his last employer in May, 1983, and subsequently sought workers’ compensation benefits.

During the hearing before the commissioner, Godar testified extensively about the claimant’s medical condition. No other expert medical testimony was elicited before the commissioner. Godar explained that the claimant had a 50 percent impairment of his respiratory capacity, and that represented the median percentage of impairment even when the claimant was under a full regimen of medication. Godar estimated that “something in the range of a 10 to 20 percent loss in function . . . was probably related to his smoking . . . .’’He explained that this meant that 10 to 20 percent of the claimant’s 50 percent loss of respiratory capacity, or 5 to 10 percent of the original capacity, was due to smoking. The remainder — 80 to 90 percent of the percentage loss, or 40 to 45 percent of the original capacity — -was due to the claimant’s prolonged exposure to perchloroethylene while he worked in the dry cleaning industry. Godar stated that the smoking related impairment was “a marginal element of impairment,” and that he did not “think the smoking had an effect in terms of [the claimant] not being disabled now had he not been a smoker.”

Godar also testified on the issue of whether the claimant could function in a work environment. According to Godar, the claimant’s exposure to perchloroethylene had sensitized his lungs and respiratory system, so that even common irritants such as cold air and perfume could induce serious breathing problems. Godar suggested that the claimant “could do probably sedentary work under conditions where there was no smoking, no significant volatile chemicals or fumes involved in the process, and with reasonable environmental control, which would include air conditioning for the summer months, he could do sedentary work.” Godar later stated, however, that “[i]n the real world I’m not of the opinion that he is employable. I think if you look at his lung function under ideal circumstances you would say, well, he could do something, yes, he could. The question is, who would hire him, and how long would he hold that job? And under those circumstances it’s been my experience that [he is] not employable.”

The commissioner concluded that the claimant was totally disabled and that his labor had become unmarketable. The commissioner implicitly found that, as a result of his continuing exposure to perchloroethylene throughout his employment in the dry cleaning business, the claimant was suffering from a 50 percent impairment of his respiratory system. The commissioner further found that the claimant had smoked for more than thirty-five years, and that this history of smoking had caused “pre-existing lung disease” that “caused his airway disease to be materially and substantially worse than it otherwise would have been.” In other words, the commissioner found that the claimant’s first injury to his lungs, caused by the smoking, and his second injury to his lungs, caused by exposure to perchloroethylene, resulted in a permanent disability “which is materially and substantially greater than that which would have resulted from the second injuiy alone . . . .” General Statutes (Rev. to 1983) § 31-349. The commissioner subsequently ordered liability for the compensation claim to be transferred from the employers to the fund after the employers had paid 104 weeks of benefits. The fund appealed from the decision of the commissioner to the board, which affirmed the commissioner’s decision with respect to the transfer.

On appeal to this court, the fund renews its claren that the commissioner should not have ordered liability for the claimant’s compensation benefits transferred from the employers to the fund pursuant to § 31-349. Following oral argument in this court, it became apparent to this court that the central issue in this case turned on the definition of “disability” in § 31-349. We therefore ordered the parties to file supplemental briefs addressing the following issues: (1) “In the context of General Statutes § 31-349, does ‘disability’ refer to the claimant’s inability to work and loss of earning capacity, or to his degree of medical impairment?” and (2) “Under the circumstances of this case, was the claimant’s permanent disability ‘materially and substantially greater than the disability that would have resulted from the second injury alone,’ within the meaning of General Statutes § 31-349?”

With respect to the issues we framed, the relevant portion of § 31-349 provides for a transfer of liability to the fund if an employee with a permanent physical impairment “incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone . . . .” The fund does not contest the commissioner’s explicit finding that the claimant “did have pre-existing lung disease as a result of his smoking for 35 years” or his implicit finding that this preexisting lung disease constituted a permanent physical impairment within the meaning of the statute. Nor does the fund challenge the commissioner’s finding that as a result of his employment with the employers, the claimant sustained a second injury to his lungs. These undisputed findings satisfy that portion of § 31-349 that requires a noncompensable first injury and a compensable second injury for transfer to the fund. The question then becomes whether the claimant’s first and second injuries resulted in a permanent “disability” under § 31-349, a question which requires that we define “disability.”

The fund takes the position that, in the context of § 31-349, “disability refers to the claimant’s inability to work and loss of earning capacity and not to his degree of medical impairment.” Best Cleaners, Inc., argues that “disability” refers to the claimant’s degree of medical impairment. Broadbrook Cleaners and Windsor Dry Cleaners argue that the term “disability” refers both to a claimant’s inability to work and to his medical impairment. The term “disability” under the latter argument would therefore refer either to an inability or limitation in a claimant’s ability to work, or simply to a worsening physical impairment. We agree with the fund that for purposes of § 31-349 disability refers to the claimant’s ability to work, and not to the degree of medical impairment.

Historically, in the workers’ compensation system, “disability” has been closely tied to loss of earning capacity. 1C A. Larson, Workmen’s Compensation (1995) § 57.14 (b), p. 10-74. More recently, we have held that “[compensation under our [Workers’ Compensation] Act is based upon incapacity, total or partial, and hence is based upon loss of earning power.” (Internal quotation marks omitted.) Mulligan v. F. S. Electric, 231 Conn. 529, 541, 651 A.2d 254 (1994). Similarly, in Levanti v. Dow Chemical Co., 218 Conn. 9, 15, 587 A.2d 1023 (1991), we recognized that the purpose of the Workers’ Compensation Act “is to give to the employee . . . compensation for the loss of wages accruing from the employee’s injury.” (Internal quotation marks omitted.) In that case, we upheld the validity of a limited schedule that established mandatory benefits payable for the loss or loss of use of a body part, but that did not specifically refer to a loss of earning capacity. We reasoned in Levanti that “our legislature must have presumed that the losses therein affected earning capacity, because any other construction would suggest that the section was intended to provide compensation solely for the body part itself, comparable to a tort recovery. This construction would be inconsistent with our Workers’ Compensation Act.” (Emphasis added.) Id., 14-15.

To equate “disability” with degree of medical impairment would be to ignore the focus of the workers’ compensation system on earning capacity, and to instead adopt a tort recovery approach for transfer to the fund. Section 31-349 therefore requires more than a showing that a preexisting injury has some measurable effect on, or in some manner augments, a subsequent work related injury. The permanent disability that results from the two injuries refers only to the claimant’s earning capacity or ability to work. In other words, the earning capacity of the claimant must be materially and substantially affected by the preexisting injury for employers to be able to transfer liability to the fund under the provisions of § 31-349.

We next address the issue of whether the commissioner’s transfer of liability for the claimant’s benefits to the fund, based on the incorrect standard, requires that we remand the case for further consideration by the commissioner. “When agency action is overturned . . . because of invalid or insufficient findings ... a court must ordinarily remand the matter under consideration to the agency for further consideration.” (Internal quotation marks omitted.) Dept. of Health Services v. Commission on Human Rights & Opportunities, 198 Conn. 479, 488, 503 A.2d 1151 (1986); Feinson v. Conservation Commission, 180 Conn. 421, 429-30, 429 A.2d 910 (1980); Hartford v. Hartford Electric Light Co., 172 Conn. 71, 73, 372 A.2d 131 (1976); see General Statutes § 4-183 (j). When the agency, however, is reversed and it appears “as a matter of law that there is only one single conclusion that the [agency] could reasonably reach,” this court may direct the agency to take that action on remand. Feinson v. Conservation Commission, supra, 430; General Statutes § 4-183 (k). We find in the present case, on the basis of the uncontradicted medical evidence before him, that the commissioner could have reached but one conclusion — that is, the first injury did not materially and substantially contribute to the claimant’s inability to work.

We tangentially visited the issue of whether a second injury was made materially and substantially greater as a result of the first injury in Levanti v. Dow Chemical Co., supra, 218 Conn. 17 (evidence that preexisting impairment materially increased claimant’s overall disability is sufficient to warrant application of § 31-349). In Levanti, however, we did not specifically define “materially” and “substantially.” Because there are no statutory definitions of the terms, we look to their commonly approved usage. General Statutes § 1-1 (a); Police Dept. v. State Board of Labor Relations, 225 Conn. 297, 301 n.6, 622 A.2d 1005 (1993) (“ ‘[w]here a statute does not define a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries’ ”). Accordingly, we conclude that for the first injury to add materially and substantially to the permanent disability, it must have an important and significant role in the disability, such that an absence of the preexisting injury would mean a measurable lessening of the degree of disability — that is, earning capacity.

In the present case, Godar was the only expert medical witness, upon whose testimony all parties relied. His testimony provides sufficient evidence that the preexisting lung injury related to the claimant’s smoking history was not a material and substantial factor in the claimant’s permanent disability and resultant unemployability. As we previously noted, Godar referred to the smoking related impairment “as a marginal element of impairment.” He also stated that he did not “think the smoking had an effect in terms of [the claimant] not being disabled now had he not been a smoker.” The commissioner therefore could reasonably find only that, within the meaning of § 31-349, the claimant’s permanent disability that resulted from the second injury was not made materially and substantially greater by the first smoking related injury.

The decision of the board is reversed and the case is remanded to the board with direction to reverse the commissioner’s transfer of liability to the fund.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1983) § 31-349 provides in pertinent part: “Compensation for second disability. Payment of insurance coverage for totally incapacitated persons. The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom. If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability, including total disability, less any compensation benefits payable or paid with respect to the previous disability, and necessary medical care, as elsewhere provided in this chapter, notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes. The employer by whom the employee is employed at the time of the injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier must, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award together with all information purporting to support his claim as to the liability of the second injury fund, and shall make available to the custodian all medical reports as the custodian shall desire. Failure on the part of the employer or the carrier to comply does not relieve the employer or carrier of its obligation to continue furnishing benefits under the provisions of this chapter. In the event the custodian shall reject the claim of the employer and its insurer, the question shall be submitted to the commissioner having jurisdiction, as promptly as possible, and the employer or carrier shall continue furnishing benefits until the outcome is finally decided, and if the employer or carrier prevails all payments made beyond the one-hundred-four-week period shall be reimbursed to the employer or carrier by the second injury fund.”

       The defendant Nu-Life Cleaners did not file a brief in this appeal. The dispute before this court is solely between the fund, the employers and their workers’ compensation insurers.

       The employers’ insurers are Peerless Insurance Company, Home Insurance Company, Aetna Casualty and Surety Company, Hartford Insurance Group and American Motorists Insurance Company. Although the insurers are parties in this appeal, we refer only to their insureds.

       Darius J. Spain, acting in his capacity both as commissioner-at-large for the first district and as commissioner for the fifth district, awarded benefits to the claimant and ordered the transfer of liability to the fund. References to the commissioner are to Spain.

       The fund raised nine issues in its appeal from the commissioner to the board, which were consolidated into four issues by the board: (1) liability for the claimant’s compensation benefits should not have been transferred to the fund because there was no evidence to support the commissioner’s finding that there was permanent physical impairment resulting from the claimant’s many years of smoking; (2) liability should not have been transferred because the commissioner found no subordinate facts that supported his conclusion that the claimant’s airway disease had been made materially and substantially worse by the preexisting lung disease; (3) the commissioner had miscalculated the amount of the award due the claimant; and (4) because there were two lungs involved, the commissioner should have ordered the employer to pay 104 weeks of liability for each, or 208 weeks total, before transferring liability to the fund. In consolidating the issues, the board eliminated the fund’s sixth ground, which has become the substantive issue in this appeal. The fund’s sixth ground is that “[t]he Commissioner erred by failing to find that the claimant’s permanent disability was not made materially and substantially worse due to pre-existing lung disease.” The board affirmed the decision of the commissioner on the first, second and fourth issues, but remanded the case to the commissioner for further consideration as to the amount of the award due the claimant. That issue was subsequently resolved by the commissioner.

       The fund also does not contest that the first ii\jury was noncompensable. “ ‘It has always been accepted without question that the situation to which the Second Injury Fund applies consists of a prior noncompensable injury followed by and combining with a subsequent compensable injury.’ (Emphasis in original.) 2 A. Larson, [Workmen’s Compensation] § 59.32 (g), p. 10-488.” Levanti v. Dow Chemical Co., 218 Conn. 9, 17, 587 A.2d 1023 (1991).

       Our usual rule is to defer to the construction given a statute by (he agency charged with its enforcement. Connecticut Alcohol & Drug Abuse Commission v. Freedom of Information Commission, 233 Conn. 28, 39, 657 A.2d 630 (1995). Deference is unwarranted, however, when the determination of a term or phrase is “a question of law that ha[s] not previously been subject to judicial scrutiny.” Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 110, 653 A.2d 782 (1995). Because we address for the first time the proper definition of the term “disability” within the context of § 31-349, the board’s implicit construction of that term is entitled to no special deference.

       On review, the board held that the claimant “did have pre-existing lung disease as a result of his smoking for over 35 years,” and that his “preexisting lung disease caused his airway disease to be materially and substantially worse than it otherwise would have been. . . . Because [the] claimant had a pre-existent lung function impairment due to smoking and because his present lung disability from airway disease is caused by both conditions . . . and because the present disability is materially and substantially worse than it would have been from the second injury alone, liability for benefits is transferred to the Second Injury Fund after 104 weeks of benefits have been paid.” (Emphasis added.)

       Pursuant to § 4-183 (k), “[i]f a particular agency action is required by law, the court, on sustaining the appeal, may render a judgment that modifies the agency decision, orders the particular agency action, or orders the agency to take such action as may be necessary to effect the particular action.”

       We have previously held that a “material” fact is one “which will make a difference in the result of the case.” (Internal quotation marks omitted.) State v. Goggin, 208 Conn. 606, 619, 546 A.2d 250 (1988). Webster’s Third New International Dictionary defines “materially” as meaning “to a significant extent or degree.”

       We have noted that “Webster, Third New International Dictionary, defines ‘substantially’ as meaning ‘in a substantial manner’ and it defines ‘substantial’ to mean ‘consisting of, relating to, sharing the nature of, or constituting substance; being of moment, important, essential.’ ” Clark v. Gibbs, 184 Conn. 410, 417 n.10, 439 A.2d 1060 (1981).

       Under examination by the attorney for Best Cleaners, Inc., Godar responded to the question regarding the claimant’s percentage of medical impairment and effect on his disability as follows:
      “Q. All right. And, are you able to assess today what part of [the claimant’s present impairment] might have been attributable to cigarette smoking by assessing some smaller percentage to that?

        “A. That would be almost blasphemy, since it’s really hardly a precise science; but when you’re making a gross medical estimate — I would then be forced to estimate something in the range of a 10 to 20 percent loss in function representing some underlying disease that was probably related to his smoking, but assuming we know what his prior lung function was before smoking, none of which information we have.

        So that, in other words, the small portion of the loss would be ascribed to the underlying [preexisting lung disease]; and I refer to that as a marginal element of impairment.” (Emphasis added.)
      Under examination by the fund’s attorney, Godar responded to questions regarding the role of smoking on the claimant’s present disability as follows:
      “Q. If he had not had a smoking history, would he now be out working? [An objection to this question was overruled by the commissioner.]
      “A. I don’t think the smoking had an [ejffect in terms of his not being disabled now had he not been a smoker.

      “Q. So, in other words, in terms of his work function he’s pretty much in the position he’s in now because of his exposure to the chemicals?
      “A. Correct.
      “Q. . . . Would it be your opinion that in terms of [the claimant’s] loss of lung function that his smoking history has contributed a relatively insignificant part of his tolal loss of lung function?
      “A. Yes.
      “Q. And that, really, the substantial and significant part of loss of lung function both in living and in — for job function really is because of his chemical exposure, is that your opinion?
      “A. Yes.
      “Q. When you give [the claimant] a 50 — approximately a 50 percent loss of each lung, you’re giving that under a very controlled condition, aren’t you?
      “A. Yes.
      “Q. And that that includes a strict regime of being away from factors, from situations which most people would consider ordinary in order to achieve that kind of level?
      “A. That’s correct.
      “Q. And, would it be safe to say that if he was put into a normal, let’s say, humanly normal environment that most of us live in that in fact his loss of lung function would actually measure significantly higher?
      “A. Yes.” (Emphasis added.)


source: Caselaw Access Project

author: KATZ, J.

license: Public Domain

text:
    CONNIE SIX v. THOMAS O’CONNOR AND COMPANY ET AL.
    (15218)
    Peters, C. J., and Borden, Berdon, Norcott and Katz, Js.
    Argued November 29, 1995
    decision released January 23, 1996

      J. Sarah Posner, assistant attorney general, with whom, on the brief, were Richard Blumentha,l, attorney general, and William J. McCullough, assistant attorney general, for the appellant (defendant second injury fund).

      David A. Kelly, for the appellees (named defendant et al.).
   KATZ, J.

The dispositive issue in this appeal is whether the named defendant, Thomas O’Connor and Company (defendant), timely notified the defendant Second Injury Fund (fund) of its intent to transfer its workers’ compensation liability to the fund pursuant to General Statutes (Rev. to 1987) § 31-349 (a). We conclude that the defendant failed to notify the fund timely and, therefore, could not transfer its liability to the fund.

The following facts are relevant to this appeal. On August 4,1987, the plaintiff, Connie Six (claimant), suffered an injury to his left knee during the course of his employment with the defendant. Pursuant to General Statutes (Rev. to 1987) § 31-284 (a), he filed a claim for workers’ compensation with the defendant, which was granted, and received temporary total disability benefits from August 5,1987, to April 23,1990. Because the claimant had a preexisting impairment of his left knee, which, combined with the present injury, resulted in an injury “materially and substantially greater than that which would have resulted from the second injury alone”; General Statutes (Rev. to 1987) § 31-349 (a); the defendant notified the fund on April 24, 1990, of its intention to transfer liability to it. The fund rejected the transfer because this notice had not been timely. On April 24, 1990, on the basis of a January 5, 1988 decision by Michael McCarty, the claimant’s physician, to release the claimant to light duty work with limitations, the defendant also notified workers’ compensation commissioner A. Paul Berte of its intention to discontinue payments retroactively as of January 5, 1988, by submitting a form 36 to Berte. Subsequently, on May 21, 1990, McCarty set the claimant’s maximum medical improvement at 40 percent, which converts to 95.2 weeks of permanent partial disability payments.

Following a formal hearing before workers’ compensation commissioner Andrew P. Denuzze (commissioner) on October 5, 1992, to determine if notice to the fund had been timely, the commissioner adopted the defendant’s proposed findings of fact and concluded that, because notice had been timely, liability would transfer to the fund. Thereafter, the commissioner granted the fund’s motion to correct his previous ruling and, after altering some of his previous findings and adopting a new finding, reversed his prior decision and concluded that notice to the fund had not been timely. Pursuant to General Statutes § 31-301 (a), the defendant appealed from this decision to the compensation review board (board), which reversed the commissioner’s ruling. In reaching its conclusion, the board focused on the commissioner’s finding six that “[t]he [claimant has acknowledged that he was not entitled to these temporary partial benefits paid from January 5,1988 in an agreement dated 2/20/92 and signed by the claimant.” From this finding, the board reasoned that, even though the claimant had received disability benefits after January 5,1988, his acknowledgment that he was not entitled to them was in effect an acknowledgment that he was not disabled after that date. Furthermore, the board reasoned that the claimant’s disability had not recommenced until May 21, 1990, the date of maximum medical improvement. Therefore, recognizing that the claimant had been disabled for twenty-one or twenty-two weeks between August 5,1987, and January 5,1988, the board reasoned that “if the weeks from January 5, 1988 to April 23,1990, [the approximate date that notice was complete] are subtracted, then [the] claimant would have only received 21 or 22 weeks of disability by April 23, 1990. Notice by the end of the 22nd week would have complied with the then § 31-349 requirement that notice be completed by the 91st week, i.e., ninety days before the expiration of the 104th week.”

The fund appealed from the board’s decision to the Appellate Court pursuant to General Statutes § 31-301b, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). The parties agree that § 31-349 requires that notice of a transfer must be completed ninety days prior to the expiration of the first 104 weeks of disability, or in the ninety-first week of disability. See Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 392-94, 618 A.2d 1340 (1993) (in order to transfer liability to fund notice must be complete ninety days prior to expiration of 104 weeks of disability and not payment of benefits). The parties also agree that notice was complete on April 24, 1990. The fund, relying on findings twelve and thirteen; see footnote 5; argues that notice was not timely. According to the fund, the claimant was continuously disabled from August 5, 1987. Therefore, in the fund’s view, the 104 weeks expired in August, 1989, and notice was due in May, 1989. In response, the defendant focuses on finding six; see footnote 5; to claim that the board was correct in concluding that notice was timely. According to the defendant, disability began on August 5, 1987, and expired on January 5, 1988. Thereafter, in the defendant’s view, disability did not recommence until the determination of the claimant’s maximum medical improvement on May 21, 1990, and because notice was not due until September, 1991, the notice on April 24,1990, was, therefore, timely. The fund disagrees with the defendant’s interpretation of finding six, but nonetheless responds that even after removing the period of time referenced in finding six, notice was still late. Finding six is based solely on an agreement between the defendant and the claimant that states that “[t]here would seem to be no entitlement to any disability benefits from 1-5-88 until 9-25-88.” Therefore, the fund argues that, by eliminating that time period, the deadline for notice was extended from May, 1989, to January, 1990. Consequently, the notice on April 24, 1990, was untimely. We agree with the fund.

“At the outset, we must determine the appropriate standard of review when a decision of a commissioner is appealed to the compensation review [board]. A decision of a commissioner granting or denying an award may be appealed to the [board] pursuant to General Statutes [Rev. to 1987] § 31-301 (a), which provides in pertinent part: ‘At any time within ten days after entry of such award by the commissioner . . . either party may appeal therefrom to the [board] .... Such appeal shall be heard by a panel of the [board] .... The compensation review [board] shall hear the appeal on the record of the hearing before the commissioner, provided, if it is shown to the satisfaction of the [board] that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, the [board] may hear additional evidence or testimony. Upon the final determination of the appeal by the [board] . . . it shall issue its decision, affirming, modifying or reversing the decision of the commissioner. The decision of the [board] shall include its findings and award and conclusions of law. . . .’

“It is clear that under General Statutes § 31-301 (a) and § 31-301-8 of the Regulations of Connecticut State Agencies the review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. Although the review [board] may take additional material evidence, this is proper only if it is shown to its satisfaction that good reasons exist as to why the evidence was not presented to the commissioner. Otherwise, it is obliged to hear the appeal on the record and not ‘retry the facts.’ See Regs., Conn. State Agencies § 31-301-8. We have stated: ‘[T]he power and duty of determining the facts rests on the commissioner, the trier of facts. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457, 78 A.2d 339 (1951). The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Mathurin v. Putnam, 136 Conn. 361, 366, 71 A.2d 599 (1950).’ Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18, 411 A.2d 924 (1979); Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 145, 291 A.2d 743 (1972). . . .

“ ‘It matters not that the basic facts from which the [commissioner] draws this inference are undisputed rather than controverted. See Boehm v. Commissioner, 326 U.S. 287, 293 [66 S. Ct. 120, 90 L. Ed. 78 (1945)]. It is likewise immaterial that the facts permit the drawing of diverse inferences. The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court. . . .’” (Emphasis in original.) Fair v. People's Savings Bank, 207 Conn. 535, 538-40, 542 A.2d 1118 (1988); accord Crochiere v. Board of Education, 227 Conn. 333, 346-47, 630 A.2d 1027 (1993); Hernandez v. Gerber Group, 222 Conn. 78, 81-82 n.3, 608 A.2d 87 (1992).

Applying these principles to the facts of this case, we conclude that there is sufficient evidence in the record from which the commissioner could reasonably have concluded that notice had not been timely and that the board acted improperly in reversing the commissioner’s decision. During the hearing, in response to the commissioner’s question regarding the choice of dates in the agreement upon which finding six is based, the defendant responded that the first date, January 5, 1988, corresponds to the date that the claimant had been released to light duty work and that the second date, September 25, 1988, had been chosen because there are “medical reports that would suggest [that] around [that date], disability may have worsened.” By stating that the claimant’s disability may have worsened around September 25, 1988, the defendant, in effect, admitted that the claimant had been disabled to some degree up to that point. In addition, there are medical reports spanning the date of injury through 1990 that indicate that the claimant was disabled to some degree throughout this period. Notably, McCarty’s decision to release the claimant on January 5,1988, to light duty work with conditions confirms that the claimant was still disabled after January 5,1988. If the claimant were no longer disabled, there would have been no reason to restrict his work options. Therefore, because the claimant continued to be disabled after January 5,1988, notice to the fund was due either in May, 1989, or in January, 1990, depending on whether the commissioner eliminated the period set out in the agreement upon which finding six is based.

Because we are required to afford great deference to the commissioner’s conclusion that notice to the fund had not been timely, provided that it is reasonably based on the evidence before him, we must interpret finding six with the goal of sustaining that conclusion in light of all of the other supporting evidence. Therefore, we interpret finding six to mean that the commissioner found that, as a matter of fact, the claimant had acknowledged that he had not been entitled to disability benefits. The commissioner did not, however, state that he found, as a matter of fact, that the claimant had not been entitled to such benefits. If we were to adopt the latter interpretation, which comports with the defendant’s position, we would necessarily need to overlook finding thirteen and the majority of the evidence before the commissioner that indicated that the claimant had been disabled after January 5, 1988, in specific, the medical reports, including McCarty’s decision to release the claimant to light duty work, as well as the defendant’s statement at the hearing regarding its agreement with the claimant that the claimant was disabled after January 5, 1988. Because the board, and we in turn, must not disturb the commissioner’s conclusion as long as it is sustainable by the underlying facts, we view finding six as simply a recitation by the commissioner of a statement made by the claimant and not as an adoption by the commissioner of the substance of the statement.

Our review of the record indicates that the commissioner’s determination that notice to the fund had not been timely was not based on an incorrect application of the law to the subordinate facts or on an inference illegally or unreasonably drawn from those facts. Therefore, it was improper for the board to reverse the commissioner’s decision. Consequently, we reverse the decision of the board and conclude that, because the commissioner reasonably concluded that notice to the fund had not been timely, liability could not transfer to it.

The decision is reversed and the case is remanded to the compensation review board with direction to affirm the decision of the compensation commissioner.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1987) § 31-349 provides in relevant part: “Compensation for second disability. Payment of insurance coverage for totally incapacitated persons, (a) The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom. If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in apermanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability, including total disability, less any compensation benefits payable or paid with respect to the previous disability, and necessary medical care, as elsewhere provided in this chapter, notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes. The employer by whom the employee is employed at the time of the iryury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier shall, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award together with all information purporting to support his claim as to the liability of the second injury fund, and shall make available to the custodian all medical reports as the custodian shall desire. Failure on the part of the employer or the carrier to comply does not relieve the employer or carrier of its obligation to continue furnishing benefits under the provisions of this chapter. In the event the custodian shall reject the claim of the employer and its insurer, the question shall be submitted to the commissioner having jurisdiction, as promptly as possible, and the employer or carrier shall continue furnishing benefits until the outcome is finally decided, and if the employer or carrier prevails all payments made beyond the one-hundred-four-week period shall be reimbursed to the employer or carrier by the second injury fund. After the employer or its insurer has completed the payment for the one-hundred-four-week period, he shall file with the commissioner having jurisdiction, and with the custodian of the second injury fund, a form indicating that all compensation and medical bills have been paid for the one-hundred-four-week period, and indicating thereon the date the custodian was notified of the pending case. Thereafter all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund. . . .” (Emphasis added.)
      “We look to the statute in effect at the date of injury to determine the rights and obligations between the parties. See Civardi v. Norwich, 231 Conn. 287, 293 n.8, 649 A.2d 523 (1994); Iacomacci v. Trumbull, 209 Conn. 219, 222, 550 A.2d 640 (1988). This rule applies to the employer’s right to transfer liability to the fund pursuant to § 31-349. See Plesz v. United Technologies Corp., 174 Conn. 181, 186-87 and n.2, 384 A.2d 363 (1978).” Dos Santos v. F.D. Rich Construction, Inc., 233 Conn. 14, 16 n.1, 658 A.2d 83 (1995).

       General Statutes (Rev. to 1987) § 31-284 provides in relevant part: “Basic rights and liabilities. Civil action to enjoin noncomplying employer from entering employment contracts, (a) An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows . . . .”

       Section 31-354-9 (b) (1) of the Regulations of Connecticut State Agencies provides in relevant part: “Notice to the Fund shall:
      “(A) Be sent to the custodian of the fund or his designee;
      “(B) Be accompanied by a voluntary agreement or finding and award. . . .
      “(C) Be accompanied by copies of all supporting medical reports; and
      “(D) Contain a statement outlining the claim, type and amount of benefits paid to date or other proof of disability.”
      Although the defendant initially notified the fund by letter dated November 27,1989, and received on November 30,1989, the parties have stipulated that notice was not complete until April 24,1990, when the voluntary agreement between the defendant and the claimant was received.

       Although finding five of workers’ compensation commissioner Andrew P. Denuzze’s findings of fact; see footnote 5; states that this notice to discontinue payments was effective retroactive to January 5, 1988, the fund contends on appeal that there is no evidence to support the finding that the notice was retroactive. As the fund recognizes, however, if the notice is applied retroactively, “the only result [of such a discontinuance] would be to terminate the entitlement to temporary total disability status. The granting of the Form 36 does not bear one way or another upon the issue of whether or not the claimant was temporarily partially disabled, which, according to the record in this case, [the] claimant clearly was. In fact, on the Form 36 there is an admission by the [defendant] that the claimant was released to ‘light, work’ . . . .”

       The revised findings of fact are as follows:
      “1. A Voluntary Agreement entered into between the parties approved by the First District Commissioner on 2/2/90 sets forth the jurisdictional facts of this claim.
      “2. On August 4, 1987, the claimant, Connie Six, sustained an injury to his left knee, which arose out of and in the course of his employment with the respondent-employer, Thomas O’Connor & Co.
      “3. The applicable average weekly wage for said injury is $428.00.
      “4. As a result of this injury, the claimant received temporary total benefits from August 5, 1987 to April 23, 1990.
      “5. Based on the release to work by the treating physician dated January 5, 1988, Commissioner Berte approved a Form 36 to discontinue benefits on 4/23/90, effective to 1/5/88.
      “6. The Claimant has acknowledged that he was not entitled to these temporary partial benefits paid from January 5, 1988 in an agreement dated 2/20/92 and signed by the claimant.
      “7. Prior to his injury of August 4,1987, the claimant had a permanent, preexisting physical impairment. Specifically, he had pre-existing osteophytic spurring and arthritis of both knees, a previous sprain and contusion of the left knee on May 25, 1987, and degenerative joint disease.
      “8. Said pre-existing impairment combined with the injury of August 4, 1987 to leave the claimant with a permanent disability that is materially and substantially greater than that which would have resulted from the injury of August 4, 1987 alone.
      “9. The employer and insurer respondents placed the Second Injury Fund on notice for relief in this matter pursuant to Connecticut General Statutes § 31-349 by letter dated 11/27/89. The Second Injury Fund acknowledged receipt of respondent’s notice on 11/30/89. Notice was complete on or about 4/23/90 when the Voluntary Agreement was received.
      “10. As a result of his injury, the claimant received 141 weeks and 3 days disability benefits from August 5, 1987 to April 23, 1990. A Voluntary Agreement was approved for Permanent Partial disability from 5/21/90 for 95.2 weeks. The respondent insurer makes no claim for the overpayment of temporary total paid from January 5, 1988 to April 23, 1990, which was paid as a result of his own error.

        “11. It is the Second Injury Fund’s contention that the Respondent failed to timely place the Fund on notice for relief pursuant to Connecticut General Statutes § 31-349 in that the notice was not perfected 90 days before the 104th week of disability. The Second Injury Fund acknowledged receipt of notice on 11/30/89, with a Voluntary Agreement on 4/23/90. The 104 week period referred to in § 31-349 refers not to weeks of payments, but to weeks of disability.
      “12. The employer and insurer respondents completed payments of 104 weeks for disability to the claimant on August 5, 1989.
      “13. The claimant continued to be disabled after January 5, 1988 due to 1he work related injury to his left knee. Respondent has failed to prove that disability ceased prior to 90 days before expiration of the statutory 104 week period.”

       General Statutes § 31-301 provides in relevant part: “Appeals to Compensation Review Board. Payment of award during pendency of appeal, (a) At any time within ten days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner from which the award or such decision on a motion originated an appeal petition and five copies thereof. . . .
      “(b) The appeal shall be heard by the Compensation Review Board as provided in section 31-280b. The Compensation Review Board shall hear the appeal on the record of the hearing before the commissioner, provided, if it is shown to the satisfaction of the Board that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, the Compensation Review Board may hear additional evidence or testimony. ...”

       Although the parties have stipulated that notice was complete on April 24, 1990; see footnote 3; the commissioner, in his findings of fact; see footnote 5; and the board used April 23,1990, as an approximate date. This difference of one day is insignificant.

       General Statutes § 31-301b provides: “Appeal of decision of Compensation Review Board. Any party aggrieved by the decision of the Compensation Review Board upon any question or questions of law arising in the proceedings may appeal the decision of the Compensation Review Board to the appellate court.”

       The fund also claims that because this agreement was never introduced into evidence as a full exhibit, but was introduced only as an exhibit for identification, the board improperly relied on it in reaching its decision. Because our resolution of this issue would have no effect on our conclusion, we need not reach it.

       Section 31-301-8 of the Regulations of Connecticut State Agencies provides: “Function of compensation review [board]
      “Ordinarily, appeals are heard by the compensation review [board] upon the certified copy of the record filed by the commissioner. In such cases the [board] will not retry the facts or hear evidence. It considers no evidence other than that certified to it by the commissioner, and then for the limited purpose of determining whether the finding should be corrected, or whether there was any evidence to support in law the conclusion reached. It cannot review the conclusions of the commissioner when these depend upon the weight of the evidence and the credibility of witnesses. Its power in the corrections of the finding of the commissioner is analogous to, and its method of correcting the finding similar to the power and method of the Supreme Court in correcting the findings of the trial court.”

       The certified record of the hearing before the commissioner considered on appeal consisted of, inter alia, the transcript from the formal hearing, a series of exhibits, and the commissioner’s findings of fact and conclusions.

       The claimant has been diagnosed as having “a medial meniscal tear and areas of chondromalacia of the medial femoral condyle.” An October 7, 1987 report prepared by McCarty indicates that the claimant had “pain, swelling, and popping” in his knee, and recommends that he avoid “persistent walking, bending, lifting, [and] climbing stairs” and that he be placed on temporary total disability. On October 22, 1987, the claimant “continue[d] to have lateral jointline pain, periodic swelling to his knee, increasing pain with ambulation and mobilization.” He remained on temporary total disability until January 5, 1988. On this date, he was released to light duty work with “limitations of no repetitive knee bending activities such as squatting, climbing, or prolonged walking or standing, or walking on uneven surfaces.” On February 21, 1989, he could “only walk to his mailbox and back . . . and [used] a cane.” On July 31, 1989, “[h]is activity level [was] to the point where he [used] a cane part of the time. He [could] only walk about 1/2 block without increasing pain to his knee. ... He [was] unable to mow his lawn, or to get on his riding lawnmower because of the knee pain.” On August 24, 1989, his knee gave way while walking down some stairs. On May 15, 1990, McCarty reported that the claimant had “progressive post-traumatic arthritis to the left knee” and continued to experience pain and swelling and to have difficulty bending at the knee and walking more than a few blocks.

       Another example of the commissioner finding, as a matter of fact, what a party did or what a party claims, instead of what he necessarily found to be true, is finding eleven, which states that “[i]t is the [fund’s] contention that the [defendant] failed to timely place the [fund] on notice . . . .” (Emphasis added.) This is in contrast with, for example, findings seven through ten, and twelve and thirteen, which are conclusions that the commissioner necessarily found to be substantively true.