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Uva v. Valleries Transportation Service, Inc.

CASE NO. 1625 CRB-7-93-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 30, 1995

JOSEPH UVA

CLAIMANT-APPELLEE

v.

VALLERIES TRANSPORTATION SERVICE, INC.

EMPLOYER

and

NATIONWIDE MUTUAL INSURANCE CO.

INSURER

RESPONDENT-APPELLEE

and

THE HOME INSURANCE CO.

INSURER

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was not represented at oral argument. At the trial level claimant was represented by Janine M. Rospars, Esq., Ackerly & Bologna, 1318 Bedford Street, P. O. Box 3347, Stamford, CT 06905-0347.

Respondent Home Insurance Company was represented by James F. Shields, Esq., Dahlmeyer, Shields & Monahan, 35 Thorpe Avenue, P. O. Box 924, Wallingford, CT 06492.

Respondent Nationwide Mutual Insurance Co. was represented by David D. Chapman, Esq., Law Offices of Larry H. Lewis, 639 Research Parkway, Meriden, CT 06450.

This Petition for Review from the January 19, 1993 Finding and Award of the Commissioner acting for the Seventh District was heard February 25, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Nancy A. Brouillet and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent The Home Insurance Co. has petitioned for review from the January 19, 1993 Finding and Award of the commissioner for the Seventh District. The claimant suffered a compensable back injury while in the employ of the respondent employer on August 21, 1987, for which he underwent surgery a few months later. At that time, the respondent Nationwide Mutual Insurance Co. was the employer’s workers’ compensation insurer. The claimant returned to work in May of 1988, but his back steadily deteriorated over the course of the next few years until he could no longer work as of November 21, 1991. Further surgery was subsequently performed.

The respondent Home Insurance Co., which replaced Nationwide as the employer’s insurer some time between the two dates of injury, argues on appeal that there was no evidence to support the commissioner’s conclusion that the claimant’s back problem resulted solely from repetitive trauma suffered after his May, 1988 return to work, rather than from a recurrence of the original injury. We agree with the appellant.

Whether an injury is a recurrence of a prior injury pursuant to § 31-307b or a new injury is a factual determination within the purview of the trial commissioner. Erickson v. Grand Union Co., 11 Conn. Workers’ Comp. Rev. Op. 127, 128, 1325 CRD-7-91-10 (1993). Thus, we will not disturb the commissioner’s conclusions unless they are contrary to law or unsupported by the evidence. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). In this case, the only medical evidence presented was the medical reports of Dr. Dila, the surgeon who performed both of the operations on the claimant, and a transcript of Dr. Dila’s deposition. Nowhere in those reports or in his testimony did Dr. Dila ever ascribe less than fifty percent of the responsibility for the claimant’s second back injury to a recurrence of his first injury; indeed, in his deposition he twice confirmed that the claimant’s second back injury was located at the same disc and on the same side of his spine as the first injury, thus making it a reinjury. As this was the only medical evidence presented by either party, it was improper for the commissioner to find that the claimant’s second back injury was a new injury completely due to repetitive stress suffered after his return to work.

Where this Board determines that the findings of the commissioner are unsupported by the evidence, we must remand the case to the commissioner for further proceedings, including the taking of further evidence, if necessary. It would be an impermissible usurpation of the authority of the trier of fact for us to order specific findings to be made based on our evaluation of the evidence. Halliday v. Daw’s Critical Care Registry, 8 Conn. Workers’ Comp. Rev. Op. 74, 76, 797 CRD-7-88-12 (1990). Our role is simply to review the findings of the commissioner and, in those instances when his or her conclusions are not supported by any evidence, to send the matter back to the commissioner for further consideration. See Morais v. Truelove & MacLean, 4 Conn. Workers’ Comp. Rev. Op. 98, 295 CRD-5-84 (1987).

We remand the matter to the Seventh District for further proceedings consistent with this opinion.

Commissioners Nancy A. Brouillet and Michael S. Miles concur.

Workers’ Compensation Commission

Page last revised: January 21, 2005

Page URL: http://wcc.state.ct.us/crb/1995/1625crb.htm

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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