State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Kelly v. Dunkin Donuts

CASE NO. 4278 CRB-4-00-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 1, 2001

MARIA KELLY

CLAIMANT-APPELLEE

v.

DUNKIN DONUTS

EMPLOYER

and

CENTURY INSURANCE

INSURER

RESPONDENT-APPELLEE

and

TRAVELERS PROPERTY & CASUALTY

INSURER

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Michael Heffernan, Esq., Heffernan & Heffernan, 295 Main Street, West Haven, CT 06516-7344.

The respondents Dunkin Donuts and Century Insurance were represented by Andrew Hern, Esq., Gordon, Muir & Foley, 10 Columbus Boulevard, Hartford, CT 06106.

The respondents Dunkin Donuts and Travelers Property & Casualty were represented by Christine DeFilippo, Esq., Sizemore Law Offices, Crossroads Corporate Park, 6 Devine Street, North Haven, CT 06473.

This Petition for Review from the August 3, 2000 Finding and Award of the Commissioner acting for the Fourth District was heard March 30, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents Dunkin Donuts and Travelers Property & Casualty have petitioned for review from the August 3, 2000 Finding and Award of the Commissioner acting for the Fourth District.1 They contend on appeal that the trier erred by applying the apportionment provisions of § 31-299b to the facts of this case, and by failing to find that the claimant’s medial epicondylitis was a new injury. We affirm the latter holding, but find legal error on the former of those grounds for appeal, and reverse the decision of the trial commissioner with an order to remand.

The parties stipulated that the claimant injured her right shoulder and sustained bilateral carpal tunnel syndrome pursuant to an accepted October 6, 1997 claim. At the time, her employer, Dunkin Donuts, was insured by Travelers. On January 19, 1999, the claimant suffered another injury, which was also accepted as compensable. By then, Dunkin Donuts had contracted with Century Insurance to be its workers’ compensation carrier. Based on the claimant’s testimony and the testimony of three treating physicians, Dr. Cambria, Dr. Kramer and Dr. Aversa, the trier found that the claimant sustained injuries on January 19, 1999 to the cervical, thoracic and lumbar areas of her back, her right shoulder and right elbow, as well as chronic lateral epicondylitis and impingement syndrome of her right shoulder. Among the medical opinions was a report by Dr. Cambria assigning responsibility for 99% of the current right shoulder and right elbow symptoms to the original injury of October 6, 1997. The trier ordered Century to accept responsibility for the cervical, lumbar, thoracic, right shoulder and right elbow injuries as per § 31-299b, with the right to seek apportionment from Travelers for 99% of the shoulder and elbow problems. Findings, ¶ O. Travelers now appeals that decision.

First, we address the appellants’ assertion that the trier erred by not defining the claimant’s elbow injury as a completely new injury rather than an aggravation of previous symptoms (both of which constitute recognizable “injuries” under § 31-275(16)). Epps v. Beiersdorf, Inc., 41 Conn. App. 430, 435 (1996). The claimant testified that said injury occurred when she slipped on ice early on the morning of January 19, 1999, and fell to the ground. She complained of pain in her right arm at the hospital, where they x-rayed her elbow. Such pain continued afterward. The claimant also testified that Dr. Cambria had injected her elbow once or twice in November, 1998, and that someone—presumably an office employee—had written “elbow to wrist” on the intake sheet in describing her right arm and hand pain. Findings, ¶ 8; February 10, 2000 Transcript, pp. 56-57.

As the finder of fact, the trial commissioner possesses both the duty and the discretion to weigh all of the evidence and rely upon that which he finds most persuasive. Palandro v. Bernie’s Audio-Video T.V. & Appliances, 3876 CRB-3-98-8 (Sept. 2, 1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). In this case, the trier relied upon the reports of Dr. Cambria, who explained on March 1, 1999, “Ms. Kelly aggravated her shoulder and elbow from the recent fall, however 99% of her symptoms are from the original shoulder and elbow problem.” Respondent’s Exhibit 3; Findings, ¶ G. He ascribed her need for pain management to her chronic complaints of shoulder and elbow pain, and not to her recent aggravation. Id. A November 2, 1998 report by Dr. Cambria also states that the claimant “is now complaining of pain in the right elbow, which radiates down into the forearm.” Claimant’s Exhibit C. Examination of the elbow revealed tenderness over the lateral epicondyle. Id. Although other medical evidence might support a different etiology of the claimant’s elbow condition, it is not the job of the Compensation Review Board to second-guess the factual determinations of the trial commissioner. Pallotto, supra. There is sufficient evidence in the record to support a finding that the 1999 elbow injury was an aggravation of a previous injury, and we may not disturb it on appeal.

Next, we reach the appellants’ challenge of the trier’s legal authority to apportion liability for the instant claim. They focus their attack on two targets: the trier’s invocation of § 31-299b,2 and the residual availability of apportionment under the common-law theory espoused in Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338 (1952), and recently discussed by our Supreme Court in Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635, 644 (1999). For clarity’s sake, we note that under § 31-299b, apportionment is proper “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, 301-302, 1324 CRD-5-91-10 (Dec. 23, 1993); see also, Plecity v. McLachlan Hat Co., 116 Conn. 216 (1933) (court held that mercury poisoning over a long work period was a single injury, and applied common-law joint tortfeasor doctrine, allowing claimant to recover full amount from either insurer). The instant claim involves two separate and identifiable sets of injuries, and cannot be characterized as a repetitive trauma or occupational disease case. Discrete accidental injury claims such as these are not covered by § 31-299b. Simmons v. UTC/Sikorsky Aircraft Div., 3904 CRB-4-98-9 (Sept. 17, 1999); Thomen, supra.

The need for an in-depth discussion of the complex issue of common-law apportionment is preempted, however, by the absence in the record of sufficient evidence to establish a causal basis for apportioning the claimant’s elbow and shoulder injuries. The trier relied upon the March 1, 1999 medical report of Dr. Cambria in ordering such apportionment in ¶ O of his Finding and Award. A close look at that report discloses that Dr. Cambria did not describe the effects of the injury in terms broad enough to justify a blanket apportionment of 99% of all payments made by Century on the right shoulder and right elbow. Rather, he was careful to state that the claimant’s need for pain management was for “chronic complaints of shoulder and elbow pain and not for this recent aggravation,” while her two weeks of lost time following the January 19, 1999 injury were occasioned by “her recent aggravation and not her ongoing complaints.” Respondents’ Exhibit 3. Based upon this evidence, one could find that Century was liable for two weeks of total disability benefits for the recent aggravation, while Travelers was responsible for the claimant’s continuing medical treatment for the ongoing shoulder complaints, and possibly any future shoulder and elbow problems. One could not conclude, however, that an indefinite apportionment arrangement was proper based on shared liability for the claimant’s ongoing symptoms. As the trier appears to have based his conclusion regarding apportionment solely on such an interpretation of this report, we must remand this case to him so that he may reconsider the question.

The trial commissioner’s decision is affirmed in part, and in part reversed and remanded for further proceedings in accordance with this opinion.

Commissioners George A. Waldron and Stephen B. Delaney concur.

1 The respondents Dunkin Donuts and Century Insurance also filed a petition for review from the Finding and Award, which they later withdrew. BACK TO TEXT

2 Section 31-299b provides, “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. Reimbursement shall be made within ten days of the commissioner’s order with interest, from the date of the initial payment, at twelve per cent per annum. If no appeal from the commissioner’s order is taken by any employer or insurer within ten days, the order shall be final and may be enforced in the same manner as a judgment of the Superior Court.” BACK TO TEXT

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