CASE NO. 4123 CRB-07-99-09
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 11, 2000
NORWALK COURTYARD MARRIOTT
MARRIOTT CASUALTY CLAIMS
The claimant was represented by Louis Ciccarello, Esq., Lovejoy & Rimer, 65 East Avenue, P.O. Box 390, Norwalk, CT 06852-0390.
The respondents were represented by James Baldwin, Esq., Coles, Baldwin & Craft, L.L.C., 1261 Post Road, Fairfield, CT 06430.
This Petition for Review from the September 10, 1999 Finding and Award of the Commissioner acting for the Seventh District was heard May 19, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle and Jesse M. Frankl.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent employer has petitioned for review from the September 10, 1999 Finding and Award of the Commissioner acting for the Seventh District. In that decision, the trial commissioner determined that the claimant sustained compensable injuries to his low back, left shoulder, and right leg when he fell at work on June 13, 1996. The trial commissioner found that although the claimant’s treating physician opined that the claimant had a fifteen to twenty percent permanent partial disability of his lower back, the claimant had not yet reached maximum medical improvement and was in need of further treatment of his low back, including possible surgery. In support of its appeal, the respondent contends that the June 13, 1996 incident merely caused a temporary exacerbation of the claimant’s pre-existing lower back condition. Additionally, the respondent contends that because the claimant had not yet reached maximum medical improvement, and because there was no medical evidence indicating that the claimant’s permanent partial disability was caused by the June 13, 1996 incident, that therefore it was premature for the trial commissioner to conclude that the claimant’s entire permanent partial disability was caused by the June 13, 1996 injury.
The trial commissioner found the following relevant facts. On June 13, 1996, while working for the respondent employer, the claimant slipped and fell, twisting his back, and hitting his back and left shoulder. The claimant continued working, but felt pain in his leg and back, and went to the emergency room on June 14, 1996. Subsequently, on June 17, 1996, the claimant visited Dr. Pesiri, his treating physician, and complained of low back pain and right leg pain due to the fall at work. Prior to the June 13, 1996 accident, the claimant had seen Dr. Pesiri on various occasions between 1994 and 1996 complaining of the effect of his work on his back, and he had also complained to his supervisor about the pain in his back.
The claimant continued visiting Dr. Pesiri, complaining of low back pain. On August 20, 1996, the claimant’s low back pain and right leg pain worsened to the point where Dr. Pesiri had to inject xylocaine and cortisone into his back, and prescribe muscle relaxants and pain pills. The claimant continued working for the respondent employer, although his low back condition became continuously worse until he could hardly walk. On August 23, 1996, he was admitted to the hospital “with intractable back pain, secondary to an injury at work.” (Finding ¶ 30). The claimant was discharged from the hospital on August 30, 1996, with a final diagnosis of lumbar disc protrusion and radiculitis. Dr. Pesiri issued a report on March 13, 1998, in which he concluded that there was a direct causal relationship between the claimant’s work injury and his back and leg pain. Dr. Pesiri opined that it is more probable than not that the work injury exacerbated his prior back condition to the point where he had to be hospitalized.
Dr. Pesiri referred the claimant to a neurosurgeon, Dr. Prokop, who treated the claimant from August of 1996 until Dr. Prokop’s death in December of 1997. Dr. Prokop opined in a report dated September 3, 1997, that “if the patient did not have a fall at work, in my opinion, he would not have developed low back pain with radiation to the right leg which required medical treatment up to the present time.” (Finding ¶ 39). At the request of the respondent, the claimant was seen by Dr. Needham, a neurosurgeon. He concluded that the claimant would be a surgical candidate. Dr. Needham’s report of October 22, 1996 references prior injuries.
The trial commissioner concluded that the claimant’s present low back condition was caused by his compensable injury of June 13, 1996. The trial commissioner further concluded that “(t)he claimant’s claim for permanency is premature as it is clear from the medical evidence that he has not had the necessary medical treatment for his low back condition and therefore has not reached maximum medical improvement.” (Finding ¶ 78). Additionally, the trial commissioner ordered the claimant to return to Dr. Needham to determine whether further treatment, including surgery, is needed, and to determine “whether the claimant is at maximum medical improvement and permanent partial disability .” (Finding ¶ f). The trial commissioner specifically states, “Causation of the permanent impairment shall not be an issue for Dr. Needham to address as the undersigned has found that the claimant’s low back condition and resulting disability is the result of the June 13, 1996 work-related incident.” (Finding ¶ g).
We will first address the respondent’s contention that the June 13, 1996 incident merely caused a temporary exacerbation of the claimant’s pre-existing lower back condition. Regarding this issue, the respondent is essentially seeking to retry the facts of this case, which this Board may not do. O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999). The determination of whether an injury arose out of and in the course of the employment requires a factual determination by the trial commissioner. O’Reilly, supra; McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). “In reviewing the factual determinations of the commissioner, the review [board’s] scope of review is limited. The review [board] may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 351 (1999) (citations omitted). In the instant case, the evidence in the record, including the opinions of Dr. Pesiri and Dr. Prokop, amply supports the trial commissioner’s determination that the claimant’s present back condition was caused by his compensable injury.
In further support of its appeal, the respondent argues that the trial commissioner’s decision improperly limits the respondent’s ability to litigate the issue of whether any percentage of the claimant’s permanent partial disability was caused by either the 1979 or the 1986 injury. We disagree. The trial commissioner found that prior to the June 13, 1996 accident, the claimant injured the mid portion of his spine when he fell from a chair on May 21, 1979 and was also involved in an automobile accident in 1986. Following the May 21, 1979 accident, the claimant was examined by Dr. Prokop on September 18, 1979, who opined that his neurological examination was within normal limits. On November 28, 1979, the claimant was examined by Dr. Orth, an orthopedic surgeon, whose examination revealed a full range of motion of the neck and back. The trial commissioner found that: “Permanent disability was not assessed.” (Finding ¶ 56). We note that the November 28, 1979 report by Dr. Orth states, “Permanent disability if any is not assessable at this time.” (Respondent’s Exh. 2).
In the instant case, the trial commissioner found that the claimant had not yet reached maximum medical improvement, and may need further medical treatment including surgery. Therefore, there has been no conclusion that the claimant’s permanent disability was caused solely by the compensable injury. We have explained that where a claimant’s “future condition is unknown a commissioner is only empowered to decide how much compensation is appropriate given the condition of the claimant at the time of the proceedings.” Perri v. Mitchell Motors, 16 Conn. Workers’ Comp. Rev. Op. 242, 243, 3259 CRB-6-96-1 (June 24, 1997).
In the instant case, because the claimant had not yet reached maximum medical improvement, no determination of a permanent partial disability award could have been made. Thus, when the claimant reaches maximum medical improvement and an assessment of permanency is made, the physician may assess whether any of the impairment was due to the prior injuries, and if so, a determination may be made as to whether any benefits were paid or payable for such pre-existing impairment. See § 31-349(a); Chappelle v. Manafort Bros., Inc., 4038 CRB-2-99-4 (March 27, 2000). Ultimately, such a factual determination will have to be made by a trial commissioner, unless an agreement is reached by the parties.
The trial commissioner’s decision is affirmed.
Commissioners Donald H. Doyle and Jesse M. Frankl concur.