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Milardo v. EIS/Div. Parker Hannifin et al.

CASE NO. 2034 CRB-8-94-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 15, 1995

JOSEPH MILARDO

CLAIMANT-APPELLEE

v.

EIS/DIV. PARKER HANNIFIN

EMPLOYER

SELF INSURED

and

AETNA CASUALTY & SURETY CO.

INSURER

and

BOB’S SURPLUS, INC.

EMPLOYER

and

AMERICAN MANUFACTURERS INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

and

ROSARIO’S GENERAL CONTRACTORS

EMPLOYER

UNINSURED

RESPONDENT

and

SECOND INJURY FUND

RESPONDENT

APPEARANCES:

The claimant was represented by J. Jude Antoinetti, Esq., 1344 Meriden Rd., Waterbury, CT 06705.

The respondents EIS/Div. Parker Hannifin and Aetna Life & Casualty were represented by Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

The respondent EIS/Div. Parker Hannifin was represented at the trial level by William Bilcheck, Esq., McNamara & Kenney, Brewster Station, P. O. Box 8187, Bridgeport, CT 06605, who did not appear at oral argument.

The respondents Bob’s Surplus, Inc. and American Manufacturers Insurance Co. were represented by Polly Orenstein Esq., Law Office of Michael Brodinsky, 127 Washington Ave., P.O. Box 35, North Haven, CT 06473-0035.

The Second Injury Fund was represented at the trial level by Ernie Walker, A.A.G., Office of the Attorney General, 55 Elm St., Hartford, CT 061410120, who did not appear at oral argument.

This Petition for Review from the April 21, 1994 Finding and Award of the Commissioner acting for the Eighth District was heard March 10, 1995 before a Compensation Review Board panel consisting of Commissioners George Waldron, Roberta S. D’Oyen and Amado J. Vargas.

OPINION

GEORGE WALDRON, COMMISSIONER. The respondents EIS/Div. Parker Hannifin and Aetna Life & Casualty (hereinafter “EIS”) and the respondents Bob’s Surplus, Inc. and American Manufacturers Insurance Co. (hereinafter “Bob’s”) have petitioned for review from the April 21, 1994 Finding and Award of the Commissioner for the Eighth District. In that decision, the trial commissioner found that the claimant suffered a compensable back injury on January 4, 1988 while employed at Bob’s and that this injury was “superimposed” upon six significant other back injuries which had occurred while the claimant was employed by EIS. In addition, the trial commissioner determined that a 1991 incident involving the claimant’s back which occurred while the claimant was at home, and which required surgery, constituted a recurrence of the claimant’s 1988 condition. The trial commissioner found that the claimant was temporarily partially disabled for certain periods and that he had a ten percent permanent partial impairment of the back. Pursuant to § 31-299b, the commissioner apportioned sixty percent of the liability to Bob’s and its insurer and forty percent to EIS as self-insured and its insurer.1

The respondent EIS contends that the facts do not support the trial commissioner’s determination that the claimant filed a timely claim for his injuries of 1980 and 1981, and that the commissioner improperly apportioned benefits pursuant to § 31-299b. The Respondent Bob’s contends that there is insufficient evidence to connect the claimant’s 1988 surgery and 1991 treatment with the injury which occurred at Bob’s on January 4, 1988. In addition, Bob’s contends that the commissioner erred in failing to attribute any liability to Rosario’s General Contractors despite the fact that the claimant was injured there in March of 1988. We note that at oral argument before this Board, the claimant withdrew his motion to dismiss the respondent Bob’s appeal.

First, we will address the issue of the timeliness of the claimant’s notice of claims. Section 31-294c(a) requires a claimant to file his notice of claim “within one year from the date of accident or within three years from the first manifestation of a symptom of the occupational disease ....” Section 31-294c(c) C.G.S. provides in part that “[failure to provide a notice of claim under subsection (a) of this section shall not bar maintenance of the proceedings if... within the applicable period an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as provided in section 31-294d.”

In the instant case, the commissioner concluded that the EIS furnished medical care to the claimant for the injuries which occurred during his employment. However, the commissioner’s findings do not include any facts regarding this conclusion. Based upon the lack of facts found by the commissioner regarding the furnishing of medical care, we are unable to discern whether the ‘furnishing of medical care exception’ of 31-294c(c) C.G.S was met in this case. Accordingly, we must remand this issue to the trial commissioner for further findings of fact and a new determination. See Britt v. Fiskars/Wallace Manufacturing, 12 Conn. Workers’ Comp. Rev. Op. 375, 1503 CRB-1-92-9 (Aug. 17, 1994).

We will now address the issue of apportionment of liability. The trial commissioner found the following relevant facts. The claimant was employed by EIS from November 14, 1977 to September 9, 1987. During that time EIS was insured by Aetna and was also self-insured. On September 27, 1979, the claimant suffered a compensable back injury, which is documented in an approved voluntary agreement for that injury. The claimant was disabled from October 8, 1979 through October 15, 1979. On May 5, 1981 the claimant injured himself while lifting a brake drum at work, and was subsequently out of work for one or two weeks. On August 23, 1982, the claimant injured his back while lifting a piston basket at work and was subsequently out of work for approximately one month. The claimant testified that on July 24, 1983, he fell from a ladder while doing home repair work. On April 25, 1985 he injured his back while carrying materials at work.

The claimant left his employment at EIS and was hired by Bob’s on December 9, 1987. On January 4, 1988, while carrying materials at Bob’s, the claimant twisted and felt a pop in his back and burning in his legs, and was taken to the hospital by ambulance. The claimant testified that he was told by a physician to take two weeks off from work, and was laid off when he returned to work. In March of 1988 the claimant began working for Rosario’s General Contractors, and shortly thereafter his leg fell through a sheetrock ceiling while at work. On July 28, 1988 the claimant treated with a neurosurgeon, Dr. Kiwak, who diagnosed a herniated L5-S1 disc. Dr. Kiwak performed surgery to remove the disc on August 23, 1988.

In October, 1991 the claimant heard a “pop” in his back while getting up from a sitting position while at home. Dr. Kiwak diagnosed a recurrent left-sided herniated disc at the L5-S1 level and performed surgical removal of the disc. The 1991 surgery, in Dr. Kiwak’s opinion, was a recurrence of the condition which was treated in 1988. Dr. Kiwak opined that the 1988 surgery was causally related to the January 4, 1988 injury which occurred at Bob’s. Additionally, he opined that the prior back injuries in 1979, 1980 and 1985 played a significant role in producing the conditions which required the 1988 surgery. Dr. Kiwak believed that sixty percent of the claimant’s back problem was caused by the January 4, 1988 injury and that the remaining forty percent was caused by the prior injuries.

The respondent Bob’s contends (1) that there is insufficient evidence to connect the claimant’s 1988 and 1991 treatment with the injury which occurred at Bob’s on January 4, 1988 and (2) that the commissioner erred in failing to attribute any liability to Rosario’s General Contractors where the claimant was injured in March of 1988.

Whether the trier erred in finding that the claimant’s injury arose out of and in the course of his employment requires a factual determination which we will not disturb unless it is found without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 538-39 (1988); Northrop v. Boehringer Ingelheim, 9 Conn. Workers’ Comp. Rev. Op. 228, 1032 CRD-7-90-6 (Oct. 30, 1991). Causation may be interrupted where an intervening event, such as a new injury, has played a causal role in the claimant’s subsequent disability. Northrop, supra. However, the Connecticut Supreme Court has stated that: “In the production of results many circumstances often play a part of so minor a character that the law cannot recognize them as causes ... “ Niebler v. Waldbaum’s Foodmart, 1851 CRB-3-93-9 (decided May 11, 1995) (quoting McDonough v. Connecticut Bank & Trust., 204 Conn. 104, 118 (1987)).

In the instant case, we find that the record supports the trial commissioner’s determination that the claimant’s treatment and surgeries in 1988 and 1991 were caused by the injury which occurred at Bob’s on January 4, 1988. This determination is supported by the medical opinions of Dr. Kiwak and Dr. Basile. (Finding of Fact No. 28 and 31). Moreover, we find that the record supports the commissioner’s determination that the incident which occurred at Rosario’s General Contractors in March of 1988 was not causally related to the claimant’s compensable back injury. Specifically, Dr. Basile, a neurosurgeon, opined that the incident at Rosario’s caused a localized contusion which did not significantly contribute to the claimant’s medical condition. (Finding No. 32).

Next, we turn to the contention made on appeal by EIS that the commissioner erroneously applied § 31-299b to this case. Section 31-299b provides, in relevant 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 . . . .

We note that the statute refers to a single “injury or disease,” as opposed to a disability. Furthermore, the language of § 31-299b does not directly address the circumstance of a prior injury. See Jolicoeur v. L.H. Duncklee Refrigeration, 1842 CRB-2-93-9 (decided May 3, 1995). The general rule in workers’ compensation law is that an employer is liable to provide compensation for the full extent of an employee’s disability, regardless of whether the disability is due in part to a preexisting condition or impairment. Levanti v. Dow Chemical Co., 218 Conn. 9, 18 (1991). Because of the hardships posed by this rule, apportionment statutes such as § 31-299b and § 31-349 have been enacted. Levanti, supra; see also § 31-275(1); § 31-307(d).

We have stated that apportionment under § 31-299b “is the workers’ compensation embodiment of common law joint tortfeasor liability ‘where a single indivisible harm is sustained as a result of the independent, separate, but concurring tortious acts of two or more persons.”’ Thornen v. Turri Electric, 11 Conn. Workers’ Comp. Rev. Op. 299, 301-02, 1324 CRD-5-91-10 (Dec. 23, 1993) (citation omitted). “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.” Id., 302; see also Plecity v. McLachlan Hat Co., 116 Conn. 216 (1933). In Thomen, supra, we ruled that § 31-299b was not applicable where two separate compensable traumatic incidents had occurred to the claimant’s right wrist, even though both injuries contributed to the claimant’s overall permanent disability. Similarly, in the instant case, § 31-299b is not applicable to the claimant’s back injuries because the injuries were separate and definitely located as to time and place.

However, the facts of this case are similar to the facts in Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338 (1952). In that case, the court affirmed a commissioner’s finding that two separate ruptures of the same L4-5 disc were equal and concurrent causes of the claimant’s disability, thus allowing the apportionment of liability between two insurers. In Mund, supra, the commissioner specifically found that the second injury was superimposed upon the condition which was previously caused by the first injury. Id., at 341.

We conclude that § 31-299b is not applicable to the facts of the instant case, but that the commissioner could apply the case of Mund, supra, to apportion liability for the claimant’s disability. In the instant case, the commissioner found that the claimant’s back injury which occurred at Bob’s on January 4, 1988, superimposed upon the back injuries which occurred at EIS in 1979, 1980, and 1985, combined to cause his need for surgery in 1988 and 1991. We conclude the commissioner’s finding that the claimant’s work injuries were contributing causes of the claimant’s back condition which required treatment and surgery was permissible under our law and was based on the evidence before the commissioner. Although we find error in the commissioner’s ruling that § 31-299b was applicable to this case, we hold that apportionment of liability between EIS and Bob’s was appropriate under Mund and the common-law tort theory of causation espoused by that court. See Jolicoeur v. L.H. Duncklee Refrigeration, 1842 CRB-2-93-9 (decided May 3, 1995). Furthermore, we agree with EIS that the commissioner should apportion the liability between EIS as self-insured and its insurer Aetna regarding the forty percent liability assessment.

The trial commissioner’s decision regarding causation is affirmed. However, as explained above, this matter is remanded to the trial commissioner for findings of fact regarding the timeliness of the notice of claims.2 In addition, as stated above, this matter is remanded to the trial commissioner for a determination regarding the forty percent apportionment between EIS and Aetna.

Commissioners Roberta S. D’Oyen and Amado J. Vargas concur.

1 During the claimant’s employment at EIS, EIS was insured by Aetna and was also self-insured. BACK TO TEXT

2 If the trial commissioner determines that a notice of claim was untimely filed, he should apportion the liability for such injury by adding it to the subsequent compensable injury. See Prioleau v. Larosa Construction Co., 12 Conn. Workers’ Comp. Rev. Op. 140, 144, 1432 CRB-8-92-6 (April 7, 1994). BACK TO TEXT

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