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Woods v. New Haven Manufacturing et al.

CASE NO. 3820 CRB-04-98-05

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 28, 1999

DORA WOODS

CLAIMANT-APPELLEE

CROSS-APPELLANT

v.

NEW HAVEN MANUFACTURING

EMPLOYER

and

LIBERTY MUTUAL INSURANCE

INSURER

RESPONDENTS-APPELLEES

and

DR. HORBLITT, D.D.S.

EMPLOYER

and

CHUBB & SON INC.

INSURER

RESPONDENTS-APPELLANTS

and

KMART

EMPLOYER

SELF-INSURED

and

LENDERS BAGELS

EMPLOYER

and

AETNA LIFE & CASUALTY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Christine Peck, Esq., Peck, Peck & Zito, 33 Whitney Avenue, New Haven, CT 06508, who did not appear at oral argument.

New Haven Manufacturing and Liberty Mutual were represented by James D. Moran, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430-0550.

Dr. Horblitt D.D.S. and Chubb & Son Inc. were represented by Christopher Goulden, Esq., Mihaly & Kascak, 925 White Plains Road, Trumbull, CT 06611.

KMart, Lenders Bagels and Aetna were represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

KMart as a self-insured employer was represented by Reilly Adjusting Service, 454 Oakwood Avenue, West Hartford, CT 06110, which did not appear at oral argument.

This Petition for Review from the May 18, 1998 Finding and Award of the Commissioner for the Fourth District was heard November 6, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr. and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents Dr. Horblitt D.D.S. and Chubb & Son Inc. (hereinafter “appellants”) have petitioned for review from the May 18, 1998 Finding and Award of the Commissioner acting for the Fourth District.1 In that decision, the trial commissioner addressed the sole issue of apportionment of responsibility for the claimant’s bilateral carpal tunnel condition. The appellants argue on appeal that the commissioner’s apportionment of 65% of the liability to Dr. Horblitt and his insurer Chubb & Son Inc. is not supported by the record.

The trial commissioner found the following relevant facts. The claimant was employed as follows: (A) as a machine operator at Pratt & Whitney from 1975 to 1983; (B) as a dental technician at the office of Dr. Horblitt, D.D.S. from June of 1985 to February of 1986; (C) as a floor person at Kmart during the summer of 1986; (D) at Owens Illinois from July of 1986 through March of 1987; (E) at Kraft Bagels from July of 1987 through September of 1987; and (F) as a machine operator at New Haven Manufacturing from June of 1987 through June of 1997. The trial commissioner found Liberty Mutual as the carrier for New Haven Manufacturing to be the primary carrier and administrator of the claimant’s benefits under § 31-299b. The trial commissioner found New Haven Manufacturing to be responsible for 25% and Dr. Horblitt to be responsible for 65% of the claimant’s accepted carpal tunnel condition. The trial commissioner apportioned liability with the two employers pursuant to § 31-299b.

In support of their appeal, the appellants argue that the apportionment of 65% to Dr. Horblitt is not supported by the record. Section 31-299b apportionment embodies the common-law concept of joint tortfeasor liability, and 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.” Thomen v. Turri Electric, 11 Conn. Workers’ Comp. Rev. Op. 299, 302, 1324 CRD-5-91-10 (Dec. 23, 1993). Section 31-299b2 allows a commissioner to apportion liability for a compensable injury among employers and to order them or their insurers to reimburse the initially liable immediate employer according to the proportion of their liability.

In the instant case, the trial commissioner’s conclusion that the claimant’s carpal tunnel condition was caused by both her employment with Dr. Horblitt and with New Haven Manufacturing is supported by the medical evidence in the record. However, the trial commissioner’s assessment of 65% of the responsibility to Dr. Horblitt is not supported by the evidence. Specifically, the record includes a medical report by the claimant’s treating physician, Dr. Connair, which apportions as follows: “one-half or more” the result of her work as a dental technician, one-quarter the result of her job with New Haven Manufacturing and one-quarter or less as a result of her numerous other jobs including jobs prior to her work as a dental technician....” (Liberty Mutual’s Exh. 1). In addition, a medical report by Dr. Arons states: “I agree with the percentage of apportionment as given by Dr. Connair in his report of 12/28/96 -- 50% dental technician, Dr. Horblitt; 25% New Haven Manufacturing; 25% numerous other jobs....” (Chubb’s Exh. 1).

In assessing 65% of liability with Dr. Horblitt, the trial commissioner apparently relied upon Dr. Connair’s opinion that “one-half or more” of the claimant’s condition was the result of her work as a dental technician. While we appreciate that the trial commissioner is the sole finder of fact, to allow the trial commissioner to choose any percentage above fifty percent would allow a trial commissioner to make a finding of fact which is subjective and which is not specifically supported by a medical opinion. See Marchand v. UTC/Pratt & Whitney, 3135 CRB-6-95-8 (Jan. 22, 1997) (a trial commissioner’s permanent partial disability assessment cannot merely be the average of several medical opinions, but must be supported by at least one medical opinion) see also Uttenweiler v. General Dynamics Corp./ Electric Boat, Case No. 3110 CRB-8-95-6 (Jan. 8, 1997). Here, because the 65% assessment is not supported by any of the medical opinions presented in this case, we thus must reverse the award.

This matter is remanded to the trial commissioner in accordance with the above decision.

Commissioners Donald H. Doyle, Jr. and Michael S. Miles concur.

1 We note that the claimant has filed a late appeal and has failed to file a brief or to appear at oral argument. Accordingly, the claimant’s appeal is dismissed as a late appeal pursuant to § 31-301(a) and Practice Book § 85-1 (failure to prosecute with proper diligence). BACK TO TEXT

2 “Section 31-299b. Initial liability of last employer. Reimbursement. 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. . . .” BACK TO TEXT

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