CASE NO. 3295 CRB-4-96-3
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 20, 1997
CIGNA PROPERTY & CASUALTY
LIBERTY MUTUAL INSURANCE CO.
The claimant was represented by Lawrence Lapine, Esq., Bello, Lapine & Cassone, 600 Summer St., Stamford, CT 06905.
The respondent employer and Cigna were represented by Margaret E. Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.
The respondent employer and Liberty Mutual were represented by Scott Wilson Williams, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550.
These Petitions for Review from the March 12, 1996 Finding and Award of the Commissioner acting for the Fourth District were heard November 22, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.
JESSE M. FRANKL, CHAIRMAN. Both of the respondent insurers have petitioned for review from the March 12, 1996 Finding and Award of the Commissioner acting for the Fourth District. There, the issue before the trial commissioner was whether the claimant sustained a compensable back injury during his tenure with UTC/Norden Systems, where he was employed between August 1, 1968 and July 31, 1989.1
The trier found that between 1968 and 1978, the claimant’s job required a great deal of air travel, and he spent a lot of time carrying heavy suitcases during his four or five-day business trips. He also received jolts whenever his plane landed on an aircraft carrier. During the next three years, he also traveled extensively after changing job duties, and was required to test combat vehicles in Europe. He experienced extreme jolting to his body while riding in those vehicles. Another change in title in 1989 led to weekly trips all over the United States. By then, the claimant’s back was giving him trouble, and he needed to stay in hotels equipped with a Jacuzzi or pool, an exercise room, and a firm mattress.
The claimant was transferred to his employer’s Long Island facility in February 1989, and his travel time was cut back somewhat. He then accepted an offer to retire from Norden Systems effective July 31, 1989. Three days before retiring, he experienced excruciating pain in his back while packing his car at the Long Island facility. He went into his office and pressed his back against the wall to relieve the pain. After resting, he finished packing and went home. His wife helped him unpack the next day. He felt more back pain two days later while packing the personal belongings in his office.
Upon retirement, the claimant established his own independent consulting firm. While traveling to Pittsburgh in November 1989, he felt excruciating pain in his back while removing his luggage from the carousel at the airport. After returning home, he collapsed to the floor in pain and was taken to the hospital.
The claimant was diagnosed with a degenerative disease at the L5-S1 level and a complete block of the spinal canal at L3. He underwent a decompressive laminectomy at L3-4, L4-5, and L5-S1 on November 29, 1989. Dr. Sava, the neurosurgeon who performed the operation, prescribed physical therapy and restricted the claimant’s job duties. He opined that the repetitive jarring that the claimant experienced during his work duties was quite severe and had accelerated the aging process in the lower part of his lumbar spine. He rated the claimant with a 20% permanent partial disability of the lumbar spine and a 15% permanent partial disability of the right lower extremity. No contrary medical testimony was offered by the respondents.
The commissioner found in accordance with Dr. Sava’s testimony, and ruled that the claimant had suffered a compensable repetitive trauma injury over his 20 years of employment with UTC/Norden Systems. She ordered payment of the permanent partial disability percentages given by Dr. Sava, along with temporary total and permanent partial disability benefits. Cigna was ordered to administer the claim, and to seek apportionment from Liberty Mutual. The respondent insurers appealed that decision.
The primary challenge on appeal is to the commissioner’s finding that there was a sufficient causal relationship between the claimant’s employment at UTC/Norden and his current back condition to support an award of compensation. The claimant had the burden of proving that his injury was work-related, of course. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). The key witness in this case was Dr. Sava, whose reports and testimony provide the only medical evidence linking the claimant’s disability to his employment.
Dr. Sava testified that the claimant suffered from degenerative disc disease and a constricted lumbar canal, which he treated by performing a decompressive laminectomy at multiple spinal levels. (March 16, 1994 Deposition, p. 8, 12). After surgery, the claimant was disabled for six months from returning to his normal consulting duties, including air travel. Id., 17. He noted that the claimant’s lumbar spine had degenerated due to the aging process much more than in the rest of his spine. Id., 27. Based on the claimant’s work history, he felt that repetitive trauma from the claimant’s employment had significantly contributed to the degeneration of his lumbar spine. Id., 28-29. He specifically acknowledged that this was his opinion within a reasonable degree of medical certainty. Id., 54. He also diagnosed the claimant with a 15% permanent impairment of the lumbar spine and leg. Id., 39-40, 52-53.
As the trier of fact, it was the commissioner’s prerogative to evaluate the credibility of this testimony. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). She chose to rely on it in her opinion, and we may not second-guess that decision. Id.; see also Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979). The testimony provides sufficient legal support for her conclusions regarding the occurrence of a compensable repetitive trauma injury. See Rogers v. Laidlaw Transit, 45 Conn. App. 204 (1997); Niebler v. Waldbaum’s Foodmart, 14 Conn. Workers’ Comp. Rev. Op. 61, 62, 1851 CRB-3-93-9 (May 11, 1995) (proximate cause determination employs substantial factor analysis).
Although the respondents argue that an intervening incident occurred when the claimant lifted his baggage off the carousel in Pittsburgh, the doctor testified that a healthy disc cannot be ruptured that easily, and that many incidents antedating that “final insult” had to have produced pre-existing disc degeneration. (June 6, 1995 Deposition, p. 9-10.) Even if that incident precipitated the need for surgery, the doctor was not certain that the herniation actually occurred at that point, nor was he sure that surgery would not have been required had that incident not occurred. Id., 10, 17-24. See Hanzlik v. James Freccia Auto Body, 15 Conn. Workers’ Comp. Rev. Op. 2, 1984 CRB-7-94-3 (Nov. 1, 1995) (repetitive trauma lifting heavy crates at work caused injury, even though the act precipitating it occurred at home), affirmed, 43 Conn. App. 908 (1996) (per curiam).
We do note, however, that the doctor’s testimony does not support a finding of 20% permanent partial disability of the lumbar spine. As stated above, he testified that the impairment was only 15 percent. Also, the commissioner made no finding as to what degree the claimant’s activities immediately preceding his surgery contributed to his overall disability. As the claimant was self-employed at that time, and there is more than one insurer in this case, apportionment under § 31-299b C.G.S. and/or common-law principles may be appropriate. Estey v. Hartford Distributors, 15 Conn. Workers’ Comp. Rev. Op. 76, 2162 CRB-5-94-9 (Dec. 6, 1995); Jolicoeur v. L.H. Duncklee Refrigeration, Inc., 14 Conn. Workers’ Comp. Rev. Op. 24, 1842 CRB-2-93-9 (May 3, 1995). This case must be remanded for consideration of those issues and entry of appropriate findings.
Finally, the appellants object to the indefinite period of temporary total disability benefits awarded. As noted above, Dr. Sava stated that the claimant was disabled for six months following his surgery. It is less clear afterward what, if any, the extent of his disability was. On remand, the commissioner should therefore clarify that issue as well.
The trial commissioner’s decision is affirmed in part, and reversed in part. The case is remanded to the trier for further findings.
Commissioners George A. Waldron and Robin L. Wilson concur.
1 Liberty Mutual was the workers’ compensation insurer for UTC/Norden from August 1, 1968 through September 30, 1986, while Cigna was on the risk from October 1, 1986 through July 31, 1989. BACK TO TEXT