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McBreairty v. DBD, Inc.

CASE NO. 1781 CRB-7-93-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 18, 1995

LEONARD H. MCBREAIRTY

CLAIMANT-APPELLANT

CROSS APPELLEE

v.

DBD, INC.

EMPLOYER

and

AETNA LIFE & CASUALTY

INSURER

RESPONDENTS-APPELLEES

and

CNA INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

CROSS APPELLANTS

APPEARANCES:

The claimant was represented by Nancy Aldrich, Esq., Aldrich & Aldrich, 830 Post Road East, Westport, CT 06880. No one appeared on behalf of claimant at oral argument.

The respondents DBD, Inc. and Aetna Life & Casualty were represented by Richard L. Aiken, Jr., Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

The respondents DBD, Inc. and CNA Insurance Companies were represented by Howard I. Levine, Esq., Law Offices of Grant H. Miller, Jr., 29 South Main St., Suite 310N, West Hartford, CT 06107-2445.

This Petition for Review from the July 9, 1993 Finding of the Commissioner acting for the Seventh District was heard June 24, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent insurer CNA Insurance Companies has petitioned for review from the July 9, 1993 Finding of the Commissioner for the Seventh District. CNA argues on appeal that the trial commissioner’s conclusion that the claimant suffered a new injury to his cervical spine was unsupported by the evidence. We affirm the trial commissioner’s decision.1

According to a voluntary agreement approved on April 29, 1989, the claimant sustained a compensable left shoulder strain while working for the respondent employer on January 23, 1989. At the time, the employer was insured for workers’ compensation liability by the respondent Aetna Life and Casualty. The claimant returned to light duty work with the respondent on July 5, 1989. Two subsequent voluntary agreements approved on April 17, 1990 and March 19, 1992 indicate that the claimant sustained compensable injuries to his cervical spine and his left shoulder on March 2, 1990, and that he suffered a 30 percent permanent partial impairment of his cervical spine and a 15 percent permanent partial impairment of his left shoulder. The respondent CNA Insurance Companies insured the employer at the time of the second injuries.

At the formal hearing, the claimant contended that the March 2, 1990 incident caused a recurrence of his left shoulder injury and a new injury to his cervical spine. CNA contended that the claimant injured both his shoulder and his cervical spine on January 23, 1989, and that he reinjured both on March 2, 1990. Aetna contended that the claimant injured only his left shoulder in 1989, and that the 1990 incident caused new injuries to both his cervical spine and left shoulder. The commissioner found that both 1990 injuries were new and distinct injuries, and that the voluntary agreements filed by CNA constituted an acceptance of those new injuries. Thus, CNA was not entitled to an apportionment of liability and reimbursement against Aetna under § 31-299b C.G.S. CNA has appealed from that decision.

Whether an injury is actually a new injury or a recurrence of a prior injury is a question of fact for the trial commissioner. Perry v. Union Lyceum Taxi Co., 1695 CRB-4-93-4 (decided Nov. 3, 1994). Where circumstances could arguably support either finding, it is for the commissioner to decide which is more appropriate based on the evidence. Id. “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.” Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). “We will not retry the facts, nor will we review conclusions that depend on the weight of the evidence or credibility of the witnesses.” Perry, supra, citing Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979).

Here, CNA argues that all of the medical evidence contradicts the commissioner’s finding. It notes that the commissioner granted one paragraph of their Motion to Correct indicating that the claimant suffered injuries to both his left shoulder and cervical spine on January 23, 1989. CNA cites the records of Dr. Mitchell, the claimant’s treating physician for the 1989 injury, which records indicate that the claimant injured his neck as well as his shoulder. It also cites the reports of Dr. Lewis, the claimant’s treating physician subsequent to the 1990 injury, who opined that ninety percent of the claimant’s permanent partial impairment rating was due to conditions pre-existing the 1989 injury, and the remaining ten percent was equally allotted between the 1989 and 1990 injuries.

CNA neglects to mention, however, that the claimant testified that he received physical therapy only for his shoulder after the 1989 injury, and that the deposition of Dr. Mitchell indicates that the claimant’s physical therapy focused on his left shoulder. One could reasonably conclude from the medical reports related to treatment of the 1989 injury that the claimant’s cervical spine had not been seriously injured, if injured at all, and that any injury to the claimant’s neck had healed quickly.

Moreover, an arthrogram dated March 6, 1989 indicated that the claimant’s left shoulder was normal. The physical therapist’s reports also show that strength in the claimant’s left shoulder was returning by June 20, 1989, and Dr. Mitchell’s report of June 30, 1989 noted that the claimant was feeling much better and could return to work. We also note that Dr. Lewis stated in his deposition that it was “extremely difficult” for him to assign importance to the 1989 injury, because he had not treated the claimant until after his 1990 injury and because he believed that severe degenerative arthritis preexisted both of the dates of injury.

We are satisfied that this evidence supports the commissioner’s finding that the claimant suffered new injuries to both his left shoulder and cervical spine on March 2, 1990. Thus, we need not disturb the commissioner’s decision.

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

1 The claimant also petitioned for review from the trial commissioner’s Finding. No reasons for appeal have been filed on the claimant’s behalf as required by Administrative Regulation § 31-301-2. The claimant has also failed to file a brief. We thus dismiss the claimant’s appeal for failure to prosecute with proper diligence pursuant to Practice Book § 4055. See Burke v. Abacus Transfer & Storage, 1782 CRB-3-93-7 (decided Nov. 3, 1994). BACK TO TEXT

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