CASE NO. 3499 CRB-03-96-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 30, 1999
HELMSMAN MANAGEMENT SERVICES
GALLAGHER BASSETT SERVICES
AURA MANUFACTURING CO.
KEMPER INSURANCE CO.
SECOND INJURY FUND
The claimant was not represented at oral argument. Notice sent to Anthony Solomine, Esq., Parrett, Porto, Parese & Colwell, 357 Whitney Avenue, New Haven, CT 06511.
The respondents Aura Mfg. and Kemper Insurance Co. were represented by Tracey Cleary, Esq. and Michael Brodinsky, Esq., 127 Washington Avenue, P. O. Box 35, North Haven, CT 06473.
The respondents Stal-Mac Corp. and Helmsman Management Services were represented by Scott Wilson Williams, Esq. and James Moran, Jr., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550.
The respondents Echlin, Inc. and Gallagher Bassett Services were represented by Jason M. Dodge, Esq. and Stephen Ekern, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.
The Second Injury Fund was represented by J. Sarah Posner, Esq. and Michael J. Belzer, Esq., Assistant Attorneys General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.
These Petitions for Review from the December 9, 1996 Finding of Transfer Pursuant to C.G.S. 31-349 by the Commissioner acting for the Third District were heard August 15, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.
JESSE M. FRANKL, CHAIRMAN. The respondent Second Injury Fund and the respondents Aura Manufacturing Co. and Kemper Insurance Co. have separately petitioned for review from the December 9, 1996 Finding of Transfer Pursuant to C.G.S. 31-349 by the Commissioner acting for the Third District. The Fund seeks reversal of the trier’s decision to transfer liability for certain claims to the Second Injury Fund, while the other appellants seek clarification of the findings to explicitly provide for the transfer of all pending claims in this matter. We affirm the trial commissioner’s decision.
The commissioner found that the claimant was employed by the respondent Aura Manufacturing, insured by Kemper Insurance Company, from August 23, 1982 through February 21, 1985. She then worked for the Stal-Mac Corporation, whose workers’ compensation liability was the responsibility of Helmsman Management Services, during March and April 1985. On April 17, 1985, the claimant sustained a traumatic injury to her right hand. She also developed bilateral carpal tunnel syndrome. Stal-Mac accepted this injury by voluntary agreement, and paid the claimant temporary total disability benefits from April 25, 1985 through January 11, 1986. The claimant had carpal tunnel surgery on both hands during the summer of 1985.
In January 1986, the claimant returned to the work force with Echlin Manufacturing, which was insured by Gallagher Bassett Services. She developed bilateral carpal tunnel symptoms again in September of that year, and left her employment with Echlin shortly afterward. The claimant received temporary total disability benefits from October 13, 1986 through December 31, 1994. A January 30, 1995 voluntary agreement specified that the claimant had a 35% permanent partial disability of each hand, and named Dr. Hubert Bradburn the claimant’s treating physician. Dr. Bradburn opined in his deposition that 65% of the claimant’s disability was related to her injury with Stal-Mac, and the other 35% was due to repetitive trauma sustained previously. He stated that the claimant suffered from permanent impairment in her hands even prior to the 1985 injuries. Each of the three insurers accepted one-third of the consequent liability (169.4 weeks) in the aforementioned voluntary agreement.
Also, on November 4, 1992, a Finding and Award was issued finding the claimant totally disabled due to major depression, a psychiatric condition that was related to her multiple injuries. The award made Echlin responsible for benefits from August 22, 1991 through the conclusion of the June, 1992 formal hearings as the result of a September 1986 carpal tunnel syndrome claim. The decision also noted that the three insurers had agreed to divide all past and future payments equally pursuant to § 31-299b, which they have in fact done.
The trier found that Stal-Mac and Echlin each submitted timely notice to the Second Injury Fund for transfer of a bilateral carpal tunnel syndrome claim, even though Echlin did not file its own notice of intent to transfer liability until May 1990. He also found the claimant to be entitled to the temporary total disability benefits she had received thus far, and accepted Dr. Bradburn’s diagnosis regarding the 35% permanent partial disability of each hand, as well as his opinion regarding the existence of pre-existing permanent partial disability. The trier thus ruled that the 1985 and the 1986 injuries are each transferable to the Fund after 104 weeks of benefits have been paid. Both the Fund and Aura Manufacturing/Kemper Insurance have appealed that decision.
The first issue raised by the Fund on appeal is the trier’s finding that Echlin properly notified the Fund of its intent to transfer liability under § 31-349. The Fund contends that, following the September 1, 1986 injury, the claimant was totally disabled from October 13, 1986 to December 31, 1994, and notice was thus due no later than July 14, 1988 pursuant to the statute. As Echlin did not provide notification to the Fund until May 30, 1990, the Fund argues that the trial commissioner should have denied its request to transfer liability on the ground that notice was untimely. We disagree.
The respondent Echlin appropriately points out in its brief that, as of May 1990, it had not yet been ordered to pay disability benefits to the claimant on account of the September 1, 1986 injury. Although the claimant filed a notice of claim against Echlin on August 21, 1987, she had been receiving compensation for her medical bills and lost wages from Stal-Mac. See November 4, 1992 Finding and Award, ¶¶ 10, 11. Despite the fact that each employer had agreed to accept one-third of the liability for the claimant’s disability under § 31-299(b), Echlin—the last employer—had maintained that Stal-Mac should administer the claim. The trial commissioner disagreed, and ordered Echlin to administer the file and make all future payments, with the right to proportional reimbursement from Aura Manufacturing and Stal-Mac. Id., ¶ L. It was at that point, Echlin contends, that disability began to exist relative to the Echlin claim.
We would not characterize Echlin’s failure to provide notice to the Fund as being due to an “impossibility” within the meaning of Thompson v. Roach, 52 Conn. App. 819 (1999), or Marano v. Timex Corp., 14 Conn. Workers’ Comp. Rev. Op. 207, 1774 CRB-5-93-7 (July 27, 1995), as Echlin could conceivably have filed a notice of intent to transfer liability with the Second Injury Fund at any time after the claimant filed her claim for the September 1, 1986 injury. Indeed, Echlin agreed prior to the trier’s 1992 award to accept one-third of the liability for the claimant’s disability under § 31-299(b). However, we agree with Echlin’s contention that the timely notice provided by Stal-Mac in 1987 satisfied Echlin’s obligation to provide § 31-349 notice as well. The claims of which Stal-Mac notified the Fund were based on the same injuries and periods of disability that implicated Echlin, and the Fund thus received the statutorily-mandated opportunity to investigate the 1986 injury at Echlin. Moreover, Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635 (1999), requires the Fund to accept liability for all of the benefits due a claimant for her combined injuries, assuming that her case medically qualifies for transfer. Id., 651. Therefore, the commissioner did not abuse his authority in concluding that, under the facts of this case as found by him, Echlin submitted timely notice of its intent to transfer the claimant’s bilateral carpal tunnel claim.
The Fund next argues that this case did not medically qualify for transfer, because there is no evidence of a physical disability that pre-existed the repetitive trauma to the claimant’s hands. The Fund briefly attempts1 to persuade this board that the claimant’s entire disability since 1982 has been one long period of repetitive trauma; see Lawrence v. Dichello Distributors, 15 Conn. Workers’ Comp. Rev. Op. 16, 2038 CRB-4-94-5 (Nov. 7, 1995); and that there is no support in the record for the trial commissioner’s conclusion that “the claimant had pre-existing permanent partial disability in her hands prior to April, 1985 as indicated by Dr. Bradburn,” which was then followed by a traumatic event. Findings, ¶ C; see also ¶¶ 7, 19-20. In fact, there is support for such findings.
Dr. Bradburn testified that the claimant’s repetitive labor throughout her history of employment constituted a disability that pre-existed an incident in April 1985 in which something slipped off a conveyor belt and struck the claimant’s right hand. April 28, 1992 Deposition, p. 4-5; May 2, 1995 Deposition, p. 10. Subsequent to the latter incident, the claimant began experiencing symptoms of bilateral carpal tunnel syndrome, and required surgery on both wrists. She then returned to work, and sustained further injury in both hands due to repetitive work at Echlin. 1995 Deposition, p. 17; see also, Respondent’s (Stal-Mac) Exhibit 3. As the finder of fact, the trier was entitled to accept this testimony, and to incorporate its substance into his findings. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 1859 CRB-5-93-9 (May 12, 1995); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). We are not authorized to override his decisions regarding the credibility of evidence on review. Id.
These findings establish at least three separate injury periods for the claimant’s right hand, and two for her left hand (the dividing line there being her 1985 surgery). Pursuant to Fimiani, supra, the claimant’s disability in both of her hands is thus transferable to the Second Injury Fund after the payment of 104 weeks of benefits by her employers/insurers. As the claimant’s psychiatric disability is a sequela of her inability to use her hands, responsibility for benefits associated with that condition also passes to the Fund. The trier’s findings specifically mandate such a result. Findings, ¶ 23.
Accordingly, we affirm the trial commissioner’s decision.
Commissioners James J. Metro and John A. Mastropietro concur.
1 This “brief attempt” consists of one paragraph in the Fund’s appellate brief. Ironically, in the very next paragraph, the Fund contends that the claimant suffered a traumatic injury to her right hand on April 17, 1985, constituting “a separate and distinct injury rather than a single indivisible harm.” We agree with the latter description rather than the former, but due to our Supreme Court’s decision in Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635 (1999), the legal consequence of that fact differs from the result anticipated by the Fund in its argument. BACK TO TEXT