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Spencer v. Merocel Corporation

CASE NO. 3919 CRB-02-98-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 23, 1999

JOHNNIE SPENCER

CLAIMANT-APPELLEE

v.

MEROCEL CORPORATION

EMPLOYER

and

ST. PAUL FIRE & MARINE INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLANTS

and

AON RISK SERVICES OF CONNECTICUT

(BERKLEY ADMINISTRATORS)

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Robert Keville, Esq., Suisman, Shapiro, Wool, Brennan, Gray & Greenberg, P.C., 2 Union Plaza, Suite 200, P.O. Box 1591, New London, CT 06320, who did not appear at oral argument.

Merocel Corporation and AON Risk Services were represented by Robert McGann, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

Merocel Corporation and St. Paul Fire & Marine Insurance were represented by Timothy Zych, Esq., Smith, Ketaineck & Musco, 9 Washington Avenue, P.O. Box 5035, Hamden, CT 06518-0035.

This Petition for Review from the October 15, 1998 Finding and Award of the Commissioner for the Second District was heard May 21, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Stephen B. Delaney and Donald H. Doyle, Jr.

OPINION

JESSE M. FRANKL, COMMISSIONER. The respondents Merocel Corporation and St. Paul Fire & Marine Insurance (hereinafter “St. Paul”) have petitioned for review from the October 15, 1998 Finding and Award of the Commissioner acting for the Second District. In that decision, the trial commissioner found that the claimant’s need for surgery on her right shoulder was the result of a compensable right shoulder injury which had been accepted by St. Paul in an approved voluntary agreement. In addition, the trial commissioner denied St. Paul’s Motion to Open said voluntary agreement. In support of its appeal, St. Paul contends that the trial commissioner improperly decided the issue of apportionment with AON Risk Services because apportionment was not an issue during the formal hearing.

The trial commissioner found the following relevant facts. The claimant was employed by the respondent employer as a floater from 1990 through November of 1995, during which time her job duties involved repetitive use of her upper extremities. In November of 1995, the claimant’s position was changed to that of an inspector which did not involve repetitive use of her upper extremities. As a result of the claimant’s repetitive work activities, she developed bilateral carpal tunnel syndrome along with right and left shoulder difficulties. The claimant went to Dr. Maletz on May 22, 1992, and he indicated that the claimant’s right shoulder symptoms were work related.

St. Paul was the insurer for the respondent employer on May 22, 1992, and subsequently1 the insurance carrier was AON Risk Management. St. Paul paid for the claimant’s medical treatment for both her bilateral carpal tunnel and her right shoulder condition until 1996. St. Paul entered into a voluntary agreement which was approved on October 21, 1996, which references the date of injury as May 22,1992 and lists the injured body parts as “Bilateral Carpal Tunnel Syndrome to the hands” and “Right shoulder.” (Finding ¶1; Claimant’s Exh. E). During the formal hearing on November 18, 1997, the claimant sought authorization for right shoulder surgery as recommended by Dr. Maletz, and St. Paul denied liability for said surgery.

The trial commissioner found that the claimant’s repetitive work duties caused her right shoulder condition, including her need for surgery. The trial commissioner found that the claimant’s symptoms and limitations as of the formal hearing on November 18, 1997, “were the same problems that she was suffering from when she first saw Dr. Maletz on her initial visit of May 22, 1992.” (Finding ¶12). The trial commissioner further found that St. Paul “did not submit any medical documentation or witnesses to refute either the medical evidence or the testimony of the claimant that her injuries were to the hands and upper extremities, including shoulders bilaterally, from the inception of her claim when she first saw Dr. Maletz on May 22, 1992.” (Finding ¶13) (emphasis added). The trial commissioner concluded that St. Paul was responsible for all reasonable and necessary medical treatment of the claimant’s right shoulder, including the recommended surgery.

The trial commissioner also addressed St. Paul’s Motion to Open the voluntary agreement which had been approved on October 21, 1996. St. Paul argued that the voluntary agreement should be reopened due to mutual mistake, specifically that St. Paul did not intend to include the right shoulder in the voluntary agreement. The trial commissioner found that there was no mutual mistake as alleged by St. Paul, and denied the Motion to Open. In its appeal to this board, St. Paul does not seek reversal of the trial commissioner’s denial of its Motion to Open.

In support of its appeal, St. Paul argues that “(t)he trial commissioner improperly decided St. Paul had made a demand of apportionment against AON Risk Services where issues for decision had been limited to contestment of claim, medical bills and medical treatment.” (Appellants’ Brief at p. 4). St. Paul further contends that “at no point during the formal proceedings did St. Paul assert any claim for apportionment pursuant to C.G.S. Section 31-299b against AON Risk Services. Rather, it had been St. Paul’s position before, during and after formal proceedings [that] initial liability for the claimant’s right shoulder condition fell upon AON Risk Services due to the claimant’s continued exposure to repetitive work trauma resulting in her chronic right shoulder impingement condition.” (Appellants’ Brief at p. 5) (emphasis added). We find no error, as it was within the discretion of the trial commissioner, as the trier of fact, to determine the causation of the claimant’s right shoulder condition and resulting need for surgery.

“The commissioner must determine as a factual matter the causal relationship between a claimant’s symptoms and a compensable injury.” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999). The power and duty of determining the facts rests on the trial commissioner as the trier of fact. This 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 will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In the instant case, the trial commissioner found not only that St. Paul accepted liability for the right shoulder condition in the approved voluntary agreement, but also that the claimant’s right shoulder condition and need for surgery developed on and prior to May 22, 1992. This determination is fully supported by the findings of fact and by the evidence in the instant case, including the testimony of the claimant and the medical records of Dr. Maletz. Specifically, the trial commissioner found that when the claimant initially treated with Dr. Maletz on May 22, 1992, she complained about her right shoulder condition, and that her symptoms and limitations were the same at the time of the formal hearing on November 18, 1997. (Finding ¶ 12; 11/18/97 TR. at 27).

The trial commissioner noted that there were medical records from Dr. Maletz indicating that the claimant’s work duties after May 22, 1992 may have aggravated her complaints. However, the trial commissioner found that there were no medical reports which specifically addressed the issue of whether the claimant’s work duties after May 22, 1992 were a substantial factor in the need for surgery or in the claimant’s continuing right shoulder symptoms. The trial commissioner found that “St. Paul furnished no medical reports in support of its attempt to apportion forward against AON Risk Services.” (Finding ¶ F). Indeed, over the objection of the claimant in the instant case, the trial commissioner allowed the record to be held open so that St. Paul could depose Dr. Maletz, and St. Paul failed to do so. (Finding ¶ F).

In its appeal, St. Paul argues that the trial commissioner erred in deciding the issue of apportionment. To the contrary, the trial commissioner did not make a decision regarding apportionment pursuant to § 31-299b, as St. Paul had never requested apportionment pursuant to § 31-299b.2 Rather, the trial commissioner used the term “apportion” in describing St. Paul’s argument that AON Risk Services was responsible for the claimant’s right shoulder condition and need for surgery.3 Indeed, in its appeal to this Board, St. Paul again argues that the claimant’s right shoulder condition was caused by the claimant’s work duties subsequent to May 22, 1992. (Appellants’ Brief at p. 10-17). As explained above, the issue regarding the causation of the claimant’s right shoulder condition and need for surgery was a factual issue for the trial commissioner.

The trial commissioner’s decision is affirmed.

Commissioners Stephen B. Delaney and Donald H. Doyle, Jr. concur.

1 The findings of fact do not indicate the date on which AON Risk Management became the insurer; however, that date is not material to the trial commissioner’s decision or to our review on appeal. BACK TO TEXT

2 During the formal hearing, the claimant’s counsel noted that St. Paul could pursue apportionment with AON Risk Services pursuant to § 31-299b, but that if it chose to pursue apportionment it should not delay the authorization of the recommended surgery. (11/18/97 TR. at 70). We agree that an insurer’s decision to seek apportionment should not delay a claimant’s need for medical treatment. See Aguayo v. Franklin Mushroom Farms, Inc., 3697 CRB-2-97-1 (Jan. 28, 1999). BACK TO TEXT

3 The trial commissioner found that “St. Paul the insurer on the risk on May 22, 1992 seeks to apportion liability forward from that date to when AON Risk Services was on the risk….” (Finding ¶ 6). BACK TO TEXT

Workers’ Compensation Commission

Page last revised: April 8, 2005

Page URL: http://wcc.state.ct.us/crb/1999/3919crb.htm

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