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Rivera v. General Datacomm, Inc.

CASE NO. 3853 CRB-05-98-07

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 13, 1999

JOSE RIVERA

CLAIMANT-APPELLEE

v.

GENERAL DATACOMM, INC.

EMPLOYER

and

CHUBB AND SON, INC.

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Mitchell Berger, Esq., 18 Cliff Street, Waterbury, CT 06710.

The respondents were represented by David Davis, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

The Second Injury Fund was represented by Taka Iwashita, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the July 2, 1998 Finding and Award of the Commissioner acting for the Fifth District was heard January 22, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The Second Injury Fund has petitioned for review from the July 2, 1998 Finding and Award of the Commissioner acting for the Fifth District. The Fund contends on appeal that the trier improperly ordered it to accept liability for the claimant’s injury on the strength of a § 31-3251 Acknowledgment of Physical Defect that the Fund claims is an insufficient basis for transfer. We affirm the trial commissioner’s decision.

This appeal marks the second time that this board has been confronted with a petition for review arising from this case, whose history dates back to 1990. During that year, the claimant was examined by a physician who prepared an Acknowledgment of Physical Defect form describing “s/p surgery for sarcoma L. knee.” The claimant signed that form, and submitted it to his employer, who filed it and obtained its approval by the Fifth District Commissioner. On December 6, 1993, the claimant sustained a compensable fracture of the tibia in his left leg. Medical evidence showed that the sarcoma surgery left the claimant without sufficient musculature in his left anterior quadricep, severely restricting the range of his knee motion. Dr. Beaumont, an orthopedic surgeon, opined that the injury was materially attributable to the loss of knee motion that followed the claimant’s sarcoma surgery.

The trial commissioner initially denied the respondents’ request to transfer liability to the Fund on the ground that the description “s/p surgery for sarcoma L. knee” was not specific enough to identify the physical defect, and that collateral evidence was needed to demonstrate the causal connection between the tibia fracture and the defect described in the form. In a 2-1 decision, this board reversed the trial commissioner’s interpretation of § 31-325. We stated that the words of the statute “require that the commissioner be able to tell from the Acknowledgment what part of the body has been affected by a previous condition, so that he may investigate its causal connection to the subsequent compensable injury. They do not require that an actual medical diagnosis or disease be specifically mentioned in the Acknowledgment, nor do they require that all of the physical effects of the defect be enumerated.” Rivera v. General Datacomm Industries, 3332 CRB-5-96-4 (Jan. 16, 1998). We held that the threshold requirement that the acknowledgment “plainly describe[] the physical condition” had been met, and the only remaining question for the trier was whether the injury was attributable in a material degree to the condition described in the acknowledgment. Id. The case was accordingly reversed and remanded to the trial commissioner for further proceedings.

In a July 2, 1998 Finding and Award, the trier entered the same seven subordinate factual findings that he had entered in the April 24, 1996 decision. Consistent with the CRB’s opinion, he then observed that the § 31-325 notice was sufficient on its face to describe the claimant’s preexisting physical condition. He further concluded that, pursuant to Dr. Beaumont’s opinion, the claimant’s condition as described in the acknowledgment was related to his 1993 injury, and was attributable in a material degree to the sarcoma surgery. Findings, ¶ C. Consequently, the trier ordered the Fund to accept transfer of the instant case. The Fund has appealed that decision to this board.

The appellant raises three arguments in its brief. Its first line of reasoning rests upon the specious notion that the trier had previously made factual findings establishing that there was no causal relationship between the enumerated defect and the injury. This argument is premised on an extraordinarily selective reading of ¶ 3 of the trier’s 1996 Finding and Award of Dismissal, and lacks any substantive merit. The trier never stated that he was unable to determine from the evidence whether the claimant’s 1996 injury was related to the described physical defect. He was instead explaining that, from the mere description of the defect itself, he could not infer said causal relationship without the presentation of extrinsic medical evidence that detailed the removal of the claimant’s left anterior quadricep musculature. Id., ¶ B. That is the very issue we addressed in our previous Rivera opinion, and we have already established the law of this case on that matter: additional medical evidence may be used to prove such a causal connection between the preexisting physical defect and the subsequent injury, as long as the acknowledgment form is facially valid, viz., that it indicates what part of the body was affected by the previous condition. Thus, the Fund’s first argument has no merit.

The second argument made by the Fund is that the medical evidence clearly fails to establish a causal connection between the injury and the described condition in the acknowledgment form. The Fund is not attempting to recast or disqualify the opinion of Dr. Beaumont, however; it is simply stressing that the only body part mentioned in the acknowledgment was the knee, while the claimant’s sarcoma was actually in his thigh. We have already explained that the phrase “s/p surgery for sarcoma L. knee” constitutes a facially valid description of the claimant’s preexisting condition. The next question that the trier had to answer—whether that condition was related to the compensable tibia fracture—did not require him to revisit the exact wording of the acknowledgment form.

The medical reports of Dr. Beaumont show that he stated that the claimant’s tibia fracture was attributable to the sarcoma surgery insofar as the injury was caused, or at least worsened, by the severe loss of range of motion in the claimant’s left knee that resulted from the sarcoma surgery. Respondent’s Exhibit 1. Another report of Dr. Beaumont indicates that the claimant’s surgical incision runs across his knee and up his thigh, and that he underwent an “anterior and lateral compartment resection of his left thigh for a soft tissue sarcoma,” leaving him with little or no muscle there. Respondent’s Exhibit 4. The report continues by noting that the range of motion of the claimant’s left knee is approximately from 0 to 10 degrees, and is limited by pain. The fact that the claimant’s quadriceps muscle was located in his thigh, rather than his knee, did not prevent the trier from legally concluding that the surgery described in the acknowledgment form is related to the condition that materially contributed to the claimant’s tibia fracture. Thus, we decline to rule in favor of the Fund on this contention.

The Fund’s final argument is that the trier erred by denying its Motion to Correct. We disagree with the Fund’s description of those proposed corrections as “undisputed facts” that are “germane to the issues at bar.” See Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998) (trier’s fact-finding authority entitles him to determine credibility and weight of medical evidence, and Motion to Correct may be denied where outcome of case would not be altered by substituted findings); see also Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). The trier was not required to enumerate the difference between the sequelae of the sarcoma surgery that affected the claimant’s knee, and those that affected his thigh. He was also not required to find the description of the sarcoma surgery in the form legally erroneous. Dr. Beaumont’s medical reports describe the claimant’s restricted knee movement and his weakened thigh musculature as dual results of the same surgical procedure that was named on the acknowledgment form, and point to those conditions as direct causal factors of the claimant’s 1993 injury. The trier was entitled to rely upon those reports, and to find that the respondents had demonstrated the requisite causal connection discussed in our previous Rivera opinion. No further corrections to his findings were necessary.

We hereby affirm the trial commissioner’s decision.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 Section 31-325 was repealed by P.A. 95-277, § 18 on July 1, 1995, but constitutes applicable law in this case, as the claimant’s injury occurred in 1993. The statute provides, in relevant part: “Whenever any person having a contract of employment, or desiring to enter into a contract of employment, has any physical condition which imposes upon his employer or prospective employer a further or unusual hazard, it shall be permissible for the person to execute in writing . . . an acknowledgment of the physical condition. No acknowledgment shall become effective unless it plainly describes the physical condition, nor until one of the commissioners finds that the person who signed the acknowledgment fully understood its meaning . . . nor until the commissioner, in writing, approves the acknowledgment . . . . No acknowledgment shall be a bar to a claim by the person signing it . . . for compensation for any injury arising out of and in the course of his employment . . . which injury shall not be found to be attributable in a material degree to the particular condition described in the acknowledgment. The rights and liabilities of the parties to the acknowledgment as to injuries . . . within the terms of the acknowledgment shall be as provided by section 31-349.” BACK TO TEXT

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