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Prioleau v. LaRosa Construction Co. et al.

CASE NO. 1432 CRB-8-92-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 7, 1994

HERBERT PRIOLEAU

CLAIMANT-APPELLANT

v.

LAROSA CONSTRUCTION CO.

EMPLOYER

and

GREAT AMERICAN INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

and

TRIPLE CONSTRUCTION CO.

EMPLOYER

and

HARTFORD INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Peter B. Reilly, Esq., 129 Church Street, P.O. Box 1533, New Haven, CT 06506-1533.

The respondents LaRosa Construction Co. and its insurer were represented by Robert F. Shea, Jr., Esq., Howard, Kohn, Sprague & Fitzgerald, 237 Buckingham Street, P.O. Box 260896, Hartford, CT 06126-0896.

The respondents Triple Construction Co. and its insurer were represented by Margaret Corrigan, Esq. and James L. Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

This Petition for Review from the May 26, 1992 Finding and Award of the Commissioner for the Eighth District was heard April 16, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The claimant has petitioned for review from the Eighth District Commissioner’s May 26, 1992 Finding and Award. On appeal, the claimant challenges the commissioner’s failure to award (1) permanent partial benefits for the full 15% disability to his back and (2) temporary total benefits for the period between his injury and the date when he first saw a doctor. We remand with respect to the award of permanent partial disability benefits and affirm with respect to the award of temporary total benefits.

The following facts are relevant to this appeal. On August 8 and 14, 1989, the claimant sustained accidental injuries which arose out of and during the course of his employment with respondent-employer LaRosa Construction Company (LaRosa). The claimant had a prior back injury on June 2, 1987 while employed by respondent-employer Triple Construction Company (Triple). The claimant was paid temporary total disability benefits for that prior injury, but no permanency rating had ever been established.

Following the 1987 injury, the claimant treated with Dr. George Dickinson, who referred the claimant to the care of Dr. Alfredo Axtmayer, an orthopedic surgeon, with whom he treated in early 1989 for back problems. Subsequent to the August, 1989 injury, the claimant did not see Dr. Axtmayer until October 3, 1989. Dr. Axtmayer opined that the claimant was totally disabled from August 15 through November 2, 1989.

On April 9, 1990, Dr. Axtmayer determined that the claimant had a 15% permanent partial disability of the low back. Dr. Axtmayer attributed only half of that permanency to the 1989 injury. He attributed the other half to pre-existing facet arthropathy, spinal stenosis and disc degeneration.

Based on the foregoing facts, the trial commissioner dismissed the claim for total disability benefits for the time period prior to October 3, 1989, because Dr. Axtmayer had not yet seen the claimant for his most recent (August, 1989) injuries. The commissioner did award temporary total benefits from October 3, 1989 to November 2, 1989. The trial commissioner also ordered LaRosa and its insurer to pay permanent partial disability benefits for a 7-1/2% disability of the low back. However, the commissioner concluded that he was “unable to state whether or not the respondents, Triple and The Hartford, are liable for the remaining seven and one-half percent disability of the back; the matter is reserved for resolution at a future hearing when additional information may be available.” Finding and Award, paragraph 20. This appeal followed.

The claimant first argues that the commissioner should have awarded him compensation for the full 15% permanent partial disability against respondent LaRosa and its insurer. The claimant grounds his claim based upon Secs. 31-3491 and 31-299b2 of the General Statutes (Rev. to 1989). We agree that, under the circumstances of this case, Sec. 31-349 requires that the claimant receive compensation for the full 15% permanent partial disability,3 but whether the additional 7-1/2% is to be paid by LaRosa or Triple is an issue that the commissioner left unresolved in his Finding and Award. We must therefore remand the case to the Eighth District to complete the fact finding process necessary to make the full permanency award.

Although the commissioner did not explicitly find that the claimant sustained a 15% permanent partial disability to his back, such a finding necessarily follows from the award of 7-1/2% arising from the August, 1989 injury together with the finding regarding the remaining 7-1/2% disability to the back. Furthermore, it is apparent from Paragraph 20 of the Finding and Award, quoted above, that the “remaining” 7-1/2% is due to a pre-existing condition. The commissioner, however, did not determine whether that earlier permanency arose out of the 1987 compensable injury or was due to some non-compensable cause.

Here, the commissioner’s finding that a 7-1/2% impairment preceded the August 1989 injury and that that injury increased the permanency rating to 15% compels the conclusion that the “permanent disability caused by both conditions [was] materially and substantially greater than that which would have resulted from the second injury alone . . . .” General Statutes Sec. 31-349. To invoke Sec. 31-349, “the prior impairment need not combine with the compensable injury in any special way, but must merely add something to the overall disability . . . . Thus, evidence that the pre-existing impairment has materially increased the claimant’s overall disability is sufficient to warrant application of Sec. 31-349.” (Citation omitted.) Levanti v. Dow Chemical Co., 218 Con. 9, 17 (1991).

Under Sec. 31-349, the employer at the time of the second injury is liable for the combined permanent impairment caused by that workplace injury and any pre-existing condition. Fusco v. TRW Geometric Tool, 4 Conn. Workers’ Comp. Rev. Op. 132, 472 CRD-3-86 (1987); see also Pich v. Pratt & Whitney, 4 Conn. Workers’ Comp. Rev. Op. 163, 166; 354 CRD-6-84 (1988); D’Abbraccio v. Southern Connecticut Gas Company, 4 Conn. Workers’ Comp. Rev. Op. 75, 441 CRD-3-86 (1987). Section 31-349 codifies “the general rule of workers’ compensation law, [that] if an employee [is] injured in the course of his employment, an employer [is] liable to provide compensation for the full extent of the employee’s disability, regardless of whether the disability [is] due, in part, to a pre-existing condition or impairment.” Levanti v. Dow Chemical Co., supra, 18.

Where the pre-existing condition is a ratable permanent partial impairment due to a prior workplace injury, however, Section 31-349 provides that an award shall be made against the second employer or insurer for the entire amount of disability “less any compensation benefits payable or paid with respect to the previous disability.” (Emphasis added.) LaRosa therefore can reduce its liability for specific indemnity benefits upon proof, by a preponderance of the evidence, that permanency benefits have been paid or are payable for the 1987 injury. See Thomen v. Turri Electric, 1324 CRD-5-91-10 (decided December 23, 1993). The commissioner, however has not resolved the issue of whether the claimant's pre-existing permanency was due to his prior workplace injury. Absent such a finding, no conclusion can be reached regarding which respondent must pay the claimant the additional compensation for the pre-existing 7-1/2% disability. We, of course, are not empowered to resolve this disputed issue of fact. See Fair v. People’s Savings Bank, 207 Conn. 535 (1988); Administrative Regulation Sec. 31-301-8.

Applying these principles to the present case, it is clear that the claimant will receive an award for the full 15% disability to his back. LaRosa will be liable for an additional 7-1/2% beyond the 7-1/2% attributable to the second injury which it has been ordered to pay unless it can establish that the other 7-1/2% was due to the prior compensable injury which is the responsibility of respondent Triple and its insurer. Since the commissioner has not yet determined whether that other 7-1/2% was due to the prior compensable injury, the matter must be remanded for further proceedings to address this issue left undecided by the commissioner.4

The claimant also challenges the commissioner’s failure to award temporary total benefits from August 15 to October 2, 1989. The commissioner did award total benefits from October 3 to November 2, 1989, but denied the claim for the period between August 14, the date of injury, and October 3 because the claimant did not see his treating physician until that later date. The claimant contends that the commissioner’s conclusion is invalid because it rests on an impermissible inference. We disagree.

Whether a claimant is totally disabled is a factual determination. Corona v. Briganti, 10 Conn. Workers’ Comp. Rev. Op. 113, 115, 1160 CRD-7-91-1, 1240 CRD-7-91-5 (1992); Lageux v. Rene Dry Wall Co., Inc., 9 Conn. Workers’ Comp. Rev. Op. 177, 179, 876 CRD-6-89-6 (1991). As such, we will generally not disturb the conclusions of a trial commissioner unless found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Further, it is reasonable to infer that a claimant is not disabled during time periods in which he is not being treated for an injury. See Coates v. Turbine Components, 1365 CRD-3-92-1 (decided November 18, 1993).

The claimant argues that the evidence, including Dr. Axtmayer’s testimony, supports the conclusion that he was totally disabled during the period before he actually saw Dr. Axtmayer. A trial commissioner, however, is free to reject certain testimony even if seemingly uncontradicted. See Barrila v. Blake, 190 Conn. 631, 639 (1983); Lageux v. Rene Dry Wall Co., Inc., supra. Thus, the commissioner’s conclusion that the claimant did not sustain his burden of proof as to his claim for total disability between August 14 and October 2, 1989 was not based on unreasonable or impermissible factual inferences, without evidence or contrary to law.

We, therefore, affirm the commissioner’s award of temporary total disability benefits. With respect to his award of permanent partial disability benefits, we remand the case to the Eighth District for further proceedings consistent with this opinion.

Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.

1 General Statutes (Rev. to 1989) Sec. 31-349(a) provides in pertinent part: “The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury . . . . If an employer who has previously incurred . . . [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, 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 . . . notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes . . . .” BACK TO TEXT

2 General Statutes (Rev. to 1989) Sec. 31-299b provides in pertinent part: “If an employee suffers an injury or disease for which compensation is found by the commissioner to be payable according to the provisions of this chapter, the employer who last employed the claimant prior to the filing of the claim, or the employer’s insurer, shall be initially liable for the payment of such compensation. The commissioner shall, within a reasonable period of time after issuing an award, on the basis of the record of the hearing, determine whether prior employers, or their insurers, are liable for a portion of such compensation and the extent of their liability. If prior employers are found to be so liable, the commissioner shall order such employers or their insurers to reimburse the initially liable employer or insurer according to the proportion of their liability . . . .” BACK TO TEXT

3 The claimant’s reliance on General Statutes Sec. 31-299b is misplaced. “Apportionment under Sec. 31-299b . . . is the workers’ compensation embodiment of common law joint tortfeasor liability when a single invisible harm is sustained as a result of the independent, separate but concurring tortious acts of two or more persons . . . . Section 31-299b apportionment is appropriate in occupational disease and repetitive trauma cases where there is a single injury occurring over a time continuum involving several employers or carriers. The present appeal concerns two separate identifiable traumatic incidents occurring each at a different time but involving the same part of the body.” (Internal quotation marks and citation omitted.) Thomen v. Turri Electric, 1324 CRD-5-91-10 (decided December 23, 1993). BACK TO TEXT

4 This remand is for the limited purpose of hearing evidence and rendering a decision on the issue of whether the claimant’s 7-1/2% permanent partial impairment which existed prior to his 1989 injury was due to the compensable 1987 injury or whether it was due to some other cause. Because the trial commissioner who rendered the decision which is the subject of this appeal is unable to conduct the further proceedings contemplated by our remand, said proceedings shall proceed in a manner not inconsistent with the dictates of Stevens v. Hartford Accident & Indemnity Co., 29 Conn. App. 378, 384-86 (1992), and Schick v.Windsor Airmotive Division/Barnes Group, Inc., 11 Conn. Workers’ Comp. Rev. Op. 17, 1033 CRD-1-90-6 (1993). BACK TO TEXT

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