Mellor v. Pleasure Valley Mobile Homes

The claimant was represented by Barbara J. Masters, Esq., 199 West Town Street, Norwich, CT 06360.

The respondent-insurer Fireman’s Fund Insurance Co. was represented by Robert D. McGann, Esq. and Richard Bartlett, Esq., McGann, Bartlett and Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

The respondent-insurer Crum & Forster Underwriters was represented by Christopher J. Foley, Esq., Law Offices of Edward D. O’Brien, 38 Woodland Street, Hartford, CT 06105.

This Petition for Review from the March 16, 1992 Finding and Award of the Commissioner for the Second District was heard January 22, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George Waldron and Donald Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. Respondent Crum & Forster Underwriters seeks to overturn the Second District Commissioner’s March 16, 1992 Finding and Award. It argues that the claimant did not suffer a new back injury on September 16, 1987, and that, therefore, respondent Fireman’s Fund Insurance Company had continuing liability by reason of claimant’s prior compensable injury of April 11, 1986. On April 11, 1986, respondent Fireman’s Fund Insurance Company insured the employer’s workers’ compensation liability. On September 16, 1987, respondent Crum & Forster Underwriters was the workers’ compensation carrier. We affirm the trial commissioner.

Whether the claimant suffered a new compensable back injury rather than a recurrence of a previous compensable injury is a factual determination for the trial commissioner to make. Colas v. Marriot Food Services, 9 Conn. Workers’ Comp. Rev. Op. 86, 939 CRD-7-89-11 (1991); Glynn v. Terry Corporation, 8 Conn. Workers’ Comp. Rev. Op. 87, 806 CRD-2-89-1 (1990). The factual issue to be resolved is one of proximate cause. If the claimant’s later symptoms occurred as an inevitable progression of the events set in motion by the earlier injury without any new intervening proximate cause, then the claimant’s condition is a recurrence of the prior compensable injury. Colas v. Marriott Food Services, supra. If, on the other hand, an intervening event, such as an accidental injury definitely located as to the time and the place, has played a causal role in the claimant’s subsequent incapacity, then a new injury, whether by aggravation of the prior injury or otherwise, has occurred.

In the present case, the trial commissioner determined that the claimant sustained a new injury on September 16, 1987, when the claimant aggravated his compensable back injury by certain lifting and turning done by the claimant in the course of his employment, which injury caused the claimant to incur medical expenses and to suffer total and partial incapacity. We cannot disturb this conclusion unless the conclusion reached was without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

Here, the commissioner’s determination that a workplace incident occurred on September 16, 1987, which caused further injury or aggravation to the claimant’s pre-existing back condition, was supported by sufficient evidence. The claimant testified that he recalled a September 16, 1987 incident in which he lifted lightweight vinyl siding, turned and experienced acute back pain. See Deposition of Kevin Mellor, pp. 59-60. The claimant’s treating physician, Dr. James C. Collias, testified that when he examined the claimant on September 18, 1987, the claimant complained of right low back pain extending down the right leg and that the claimant’s previous difficulties had been on the left side. See Deposition of James C. Collias, M.D., p. 28. Dr. Collias further testified that the events of September 16, 1987, involving lifting, turning and experiencing acute back pain, probably aggravated the prior injury to the claimant’s back. See Deposition of James C. Collias, M.D., p. 32.

Respondent Crum & Forster Underwriters nevertheless contends that the commissioner’s finding is unreasonable in light of the following additional evidence in the record: (1) the claimant’s testimony, found elsewhere in his deposition, that he could not recall an injury to his back in September, 1987 and (2) medical documentation finding the claimant’s condition after September 17, 1986, to be “related to” or “in part due to” the claimant’s 1986 injury.

The appellant has presented us with nothing more than claimed inconsistencies in the evidence. Because we do not retry the facts; Fair v. People’s Savings Bank, supra; it was within the province of the trial commissioner to resolve any alleged inconsistencies or contradictions in the evidence. See Miller v. Kirshner, 225 Conn. 185, 198-99 (1993); State v. Sherbacow, 21 Conn. App. 474, 479-80, cert. denied, 216 Conn. 808 (1990); State v. Sesler, 33 Conn. Sup. 747, 751, cert. denied, 172 Conn. 702 (1976). Even if the evidence below was in conflict, there was sufficient evidence presented to support the commissioner’s findings and his ultimate conclusions.

We, therefore, affirm the Second District commissioner and deny the appeal.

Additionally, pursuant to Sec. 31-301c(b), we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.