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Holmes v. G. A. Masonry Corp. et al.

CASE NO. 1588 CRB-5-92-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 11, 1994

DONALD HOLMES

CLAIMANT-APPELLEE

v.

G. A. MASONRY CORP.

EMPLOYER

and

EMPLOYERS INSURANCE OF WAUSAU

INSURER

RESPONDENTS-APPELLANTS

and

L. G. DEFELICE INC.

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Scott N. Roberts, Esq., 349 Mitchell Street, P.O. Box 883, Groton, CT 06340.

The respondents G. A. Masonry Corp. and Employers Insurance of Wausau were represented by Richard Bartlett, Esq. and Donald C. Davis, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

The respondents L. G. DeFelice and Liberty Mutual Ins. were represented by Timothy D. Ward, Esq., Law Offices of Rosenbaum & Brennan, 655 Winding Brook Drive, P.O. Box 695, Glastonbury, CT 06033.

This Petition for Review from the December 1, 1992 Finding and Award of the Eighth District Commissioner acting for the Fifth District was heard December 2, 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. Respondent-employer G. A. Masonry Corporation and its insurer, Employers Insurance of Wausau, and respondent-employer L. G. DeFelice, Inc. and its insurer, Liberty Mutual Insurance Company, challenge a December 1, 1992 Finding and Award. In their appeal, respondents G. A. Masonry and Employers Insurance of Wausau contend that the commissioner improperly determined the respective carriers’ responsibility or apportionment of liability based on the fact that the only witness who testified on the issue changed his initial opinion during cross-examination. In their appeal, L. G. DeFelice and Liberty Mutual Insurance Company challenge the commissioner’s (1) failure to find the claim to be untimely based on the statute of non-claim, General Statutes Sec. 31-294, and (2) determination that L. G. DeFelice was the last employer for purposes of General Statutes Sec. 31-299b. We vacate the decision of the commissioner and remand for further proceedings.

The essential facts are as follows. The claimant sustained a compensable injury to his back and left leg on January 15, 19881 while in the employ of respondent G. A. Masonry. The claimant returned to work with G. A. Masonry in February, 1988. He then began to work for L. G. DeFelice in March, 1988, and continued working for L. G. DeFelice until October, 1989. The claimant also worked for other employers thereafter, in late 1989 and in 1990. The claimant’s back pain worsened in 1988 and 1989 while working for L. G. DeFelice and continued to worsen into 1990.

The commissioner found that subsequent to the January 15, 1988 injury, the claimant’s back problems gradually worsened due to repetitive trauma and that on May 13, 1991, the claimant became unable to work because of several factors, including the January 15, 1988 injury and the ongoing repetitive trauma thereafter. The commissioner further found that L. G. DeFelice and its insurer, Liberty Mutual, were the last responsible respondents with regard to the claimant and ordered them, pursuant to Sec. 31-299b, to pay compensation for temporary total disability benefits commencing on May 13, 1991 and all medical bills. Additionally, the commissioner found G. A. Masonry and its insurer, Employers Insurance of Wausau, liable for one-half of all sums due to the claimant arising from these injuries, ordering them to reimburse Liberty Mutual for fifty percent of such sums as Liberty Mutual becomes obligated to pay to the claimant. These appeals followed.

In their appeal, G. A. Masonry and Employers Insurance of Wausau challenge the commissioner’s 50/50 apportionment of liability between the respective carriers. The commissioner based this apportionment of liability on the deposition testimony of Dr. Gerald J. Becker. In his direct testimony, Dr. Becker opined: “I would say any disability that he (the claimant) would have would be apportioned among all of the heavy types of jobs he performed. I would apportion it half to his injury of January 1988 and then divide the remaining half equally among the other employers which would have involved doing work which would have placed stress on his back.” Joint Exhibit AA (Deposition of Dr. Gerald J. Becker), p. 15. During cross-examination, however, Dr. Becker was asked if his opinion would change if the claimant only lost four weeks of work due to the initial injury and then worked for almost three years before again becoming disabled, all facts supported by the commissioner’s findings. Id., pp. 26-27. Dr. Becker responded: “Yes, I would change my opinion. I would more equally divide it one-third due to the January ’88 accident and two-thirds to the subsequent repetitive trauma as far as lost time.” Id., p. 27. Since the witness changed his opinion and no longer agreed with the opinion he had given only minutes earlier, the commissioner’s decision to apportion liability equally between the two employers based on the earlier opinion of the witness lacks “substantial roots in the evidence”; Fair v. People’s Savings Bank, 207 Conn. 535, 541 (1988), quoting Cardillo v. Liberty Mutual Co., 330 U.S. 469, 477-78 (1947); and must be overturned. Compare Minski v. Plastic Wire & Cable, 1 Conn. Workers’ Comp. Rev. Op. 88, 89, 73-CRD-2-81 (1981) (“Despite the doctor’s admission that he might have changed his opinion had he had [certain] other information, it does not appear that he actually did so. This left the matter for the commissioner to decide as the ultimate judge of the credibility of the witnesses and the reliability of their testimony.”)

Ordinarily, such an error would require that we remand the matter to the commissioner with direction that the commissioner apportion liability in accordance with the evidence. Yet, our review of the record reveals a more fundamental defect surrounding the issue of apportionment. Although this defect has not been brought to our attention by the parties, it constitutes plain error sufficient to compel that we vacate the decision of the commissioner and remand for further proceedings. Practice Book Sec. 4185; Cormican v. McMahon, 102 Conn. 234, 238 (1925).

We turn now to L. G. DeFelice’s claims on appeal. We need only discuss them briefly. The trial commissioner failed to make the necessary findings with respect to the timeliness of the claim. Campbell v. Manchester Memorial Hospital, 10 Conn. Workers’ Comp. Rev. Op. 151, 1182 CRD-5-91-2 (1992); Boutin v. Industrial Components, 4 Conn. Workers’ Comp. Rev. Op. 19, 237 CRD-6-83 (1987). This issue must be addressed on remand.

In light of our remand on all issues related to the assignment of liability, we need not address L. G. DeFelice’s challenge to the commissioner’s initial assignment of liability pursuant to Sec. 31-299b.

We, therefore, vacate the decision of the commissioner and remand the case to the Eighth District for further proceedings.2

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

1 Paragraph 1 of the Finding and Award erroneously recites January 15, 1991 as the date of the claimant’s first injury. It is undisputed that the correct date is January 15, 1988. This obvious scrivener’s error should be corrected to identify the correct date of injury in Paragraph 1, as that date is supported by the evidence and facts appearing elsewhere in the Finding and Award. See Peterson v. The Hartford Courant, 11 Conn. Workers’ Comp. Rev. Op. 296, 297 n. 1, 1389 CRB-1-92-3 (1993); Lilley v. Larry’s Sales & Repair, 11 Conn. Workers’ Comp. Rev. Op. 188, 189 n. 1, 1408 CRB-2-92-4 (1993). BACK TO TEXT

2 Because the trial commissioner whose decision is the subject of this appeal is not able to hear this matter, we must remand the case for further proceedings not inconsistent with the dictates of Stevens v. Hartford Accident and 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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