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DeSantis v. Town of Middlebury

CASE NO. 3182 CRB-5-95-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 27, 1997

JOHN DESANTIS

CLAIMANT-APPELLEE

v.

TOWN OF MIDDLEBURY

EMPLOYER

and

CIRMA

INSURER

RESPONDENTS-APPELLANTS

and

TRAVELERS INSURANCE CO.

INSURER

and

HARTFORD INSURANCE

INSURER

and

SECOND INJURY FUND

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Andrew Morrissey, Esq., 203 Church Street, P.O. Box 31, Naugatuck, CT 06770.

At the trial level respondent employer Town of Middlebury was represented by James Smith, Esq., 530 Middlebury Road, Middlebury, CT 06762.

The respondent employer and CIRMA were represented by Kevin Maher, Esq., Maher & Williams, 1300 Post Rd., P.O. Box 550, Fairfield, CT 06430-0550.

The respondent Travelers was represented by Kenneth DeLorenzo, Esq., Law Offices of Christine Harrigan, 18 Asylum Avenue, Hartford, CT 06103.

The respondent Hartford Insurance Group was represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury CT 06033.

The Second Injury Fund was represented at the trial level by Taka Iwashita, Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120, but did not appear at oral argument as it withdrew its appeal.

This Petition for Review from the September 29, 1995 Finding and Award of the Commissioner acting for the Fifth District was heard August 30, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer and its insurer CIRMA (“respondent appellants”) have petitioned for review from the September 29, 1995 Finding and Award of the Commissioner acting for the Fifth District. In that decision, the trial commissioner found that the claimant suffered a compensable injury to his back on December 12, 1989 while employed by the town of Middlebury, which was insured at that time by CIRMA. The trial commissioner found that the claimant had sustained prior injuries to his back, but concluded that the December 12, 1989 incident constituted a new and identifiable injury. In support of their appeal, the appellants contend that the facts as found by the trial commissioner do not support a conclusion that a new injury occurred on December 12, 1989. The appellants further contend that the trial commissioner should have apportioned liability pursuant to § 31-299b or common law. We find no error.

Issues regarding causation, such as whether an injury constitutes a new injury or a recurrence of a prior injury, are factual issues for the trial commissioner to determine. Perry v. Union Lyceum Taxi Co., 13 Conn. Workers’ Comp. Rev. Op. 16, 1695 CRB-4-93-4 (Nov. 3, 1994). We will not disturb such a factual determination 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).

In the instant case, the trial commissioner found that the claimant sustained an injury to his back on December 12, 1989 when he was removing a cap from a fill pipe with a wrench while in a squatting position and “pulled as hard as he could.” (Finding No. 29). The claimant testified that later in the evening on December 12, 1989 he began to have severe pain which eventually radiated to his left ankle. Furthermore, the claimant testified that “he never had left ankle pain before or pain that severe.” (Finding No. 40). On January 2, 1990, the claimant underwent surgery with Dr. Finn for a nerve root defect at L4-5 on the left. Dr. Finn opined that on December 12, 1989, the claimant sustained a new incident to his back which was superimposed upon a pre-existing condition. (Finding No. 47). Furthermore, Dr. Finn opined that the claimant sustained a nerve impingement which required surgery “on the side of the disc that had not previously been operated on....” (Finding No. 53). We conclude that the record fully supports the trial commissioner’s determination that the December 12, 1989 injury constituted a new and identifiable injury.

In further support of their appeal, the appellants contend that it was improper for the trial commissioner to rely on Dr. Finn’s opinion regarding whether the incident constituted a new injury, but to disregard Dr. Finn’s opinion regarding apportionment. The trial commissioner’s fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We find no error on the part of the trial commissioner in relying on some but not all of a medical expert’s opinion. See Busak v. City of Stamford, 12 Conn. Workers’ Comp. Rev. Op. 291, 1562 CRB-7-92-11 (June 8, 1994), aff’d., 39 Conn. App. 919 (1995) (per curiam).

We now turn to the appellant’s argument regarding apportionment. 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). In addition, liability for a disability caused by injuries which are “equal, concurrent and contributing causes” may be apportioned under the common-law tort theory of causation set forth in Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338, 341 (1952). See Jolicoeur v. L.H. Duncklee Refrigeration, Inc., 14 Conn. Workers’ Comp. Rev. Op. 24, 1842 CRB-2-93-9 (May 3, 1995).

In the instant case, the trial commissioner found that the December 12, 1989 injury constituted a new and identifiable injury. The trial commissioner did not find the claimant’s prior injuries to be concurrent and contributing causes of the claimant’s nerve impingement and resulting need for surgery. As the trial commissioner’s determination is based upon the weight and credibility which he accorded the evidence, and is fully supported by the record, we will not disturb that determination.

The trial commissioner’s decision is affirmed.

Commissioners George Waldron and Robin L. Wilson concur.

Workers’ Compensation Commission

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