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Ortiz v. United Illuminating Company et al.

CASE NO. 4432 CRB-4-01-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 8, 2002

LUIS ORTIZ

CLAIMANT-APPELLEE

v.

UNITED ILLUMINATING COMPANY

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

WISCONSIN ENERGY CORPORATION(WISVEST CONNECTICUT)

EMPLOYER

and

WAUSAU INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Donald Cousins, Esq., Cousins, Johnson & Desrosiers, 2563 Main Street, Stratford, CT 06615. Although the claimant filed a brief in this appeal no one appeared at oral argument.

United Illuminating Company was represented by Kristin Falls Esq., Letizia, Ambrose & Cohen, One Church Street, New Haven, CT 06510.

Wisconsin Energy Corporation (Wisvest Connecticut) and Wausau Insurance Company were represented by Kenneth R. Plumb, Esq., Berchem, Moses & Devlin P.C., 75 Broad Street, Milford, CT 06460; Lisa Pettinella, Esq. and Robert Brennan, Esq., both of the Law Offices of Robert Brennan, 265 Church Street, Suite 802, New Haven, CT 06510.

This Petition for Review from the August 13, 2001 Finding and Award of the Commissioner acting for the Fourth District was heard March 22, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents-appellants, Wisvest Connecticut and Wausau Insurance Company, [hereinafter Appellants] have petitioned for review from the Commissioner Acting for the Fourth District’s August 13, 2001 Finding and Award. In that Finding and Award the commissioner held the appellants liable for a back injury sustained by the claimant on February 7, 2000.1

The pertinent facts giving rise to this appeal are as follows. The plaintiff was employed by the respondent-appellee, United Illuminating. On March 6, 1991, the claimant while assigned to the Chemistry department, was lifting heavy weights in order to calibrate the coal scale. Upon lifting the weights, the claimant experienced a sharp pain in his lower back. As a result of that incident the claimant was injured at the L5-S1 and L5-L4 of his lumbar spine.

The claimant treated chiropractically until 1997 when he was referred to Dr. Michael E.Opalak, a neurosurgeon. On April 11, 1997, Dr. Opalak performed disc surgery on the claimant at the L5-S1 level. A Voluntary Agreement accepting liability for the March 6, 1991 back injury was approved April 24, 1992. On April 9, 1999, a Voluntary Agreement reflecting a 23.5% disability rating to the lumbar spine and maximum medical improvement date of October 29, 1998 was also approved.

On or about April/May 1999, ownership of the respondent -employer, United Illuminating, was transferred to Wisvest Connecticut LLC. The claimant remained in the same position with the employer, performing the same duties as those he performed while the company’s ownership was United Illuminating.

On February 7, 2000 the claimant was performing his regular job duties. In the course of performing these duties, he dirtied his hands. The claimant went to the men’s room to wash them and while bent over the sink, the claimant experienced immobilizing lower back spasms and pain radiating down both his legs.

The trial commissioner acting for the Fourth District began formal hearing proceedings regarding this claim. Following these proceedings the trial commissioner concluded that the February 7, 2000 incident was a new injury and the appellants were liable for benefits from that date. The appellants took this appeal.

The ultimate issue presented for review is whether the trial commissioner erred in concluding the appellants were solely liable for all benefits resulting from the February 7, 2000 incident. We affirm the trial commissioner’s ruling. In their prosecution of this appeal the appellants premise much of their argument on the independent medical examiner, Dr. Edward Staub’s opinion. Dr. Staub opined claimant’s back problems were causally related to the 1991 work injury. Dr. Staub examined the claimant July 10, 2000 and also opined that the need for fusion surgery was 95% related to the 1991 injury and 5% related to the February 2000 injury. Based on Dr. Staub’s opinion and other supporting evidence the appellants contend the commissioner erred in failing to apportion liability.

Our affirming of the trier’s ruling rests solidly on this tribunal’s opinion in Hatt v. Burlington Coat Factory, 4326 CRB-2-00-12 (December 18, 2001) appeal docketed No SC 16737.2 We conclude Hatt is dispositive of all issues raised in this appeal. We therefore, affirm the trial commissioner as to the appellants’ liability for benefits flowing from the February 2001 injury.3

The appellants acknowledge our holding in Hatt, supra, but ask this panel to reconsider our ruling in Hatt. We are disinclined to revisit Hatt, for two reasons. The first reason is based on principles of stare decisis. We believe this tribunal’s opinion in Hatt, reflects a careful and deliberate analysis of case law and the impact of legislative changes to the Workers’ Compensation Act. Secondly, our decision in Hatt is currently pending before the Supreme Court. We believe any changes to our holding in Hatt are more appropriately addressed by that appellate body.

In Hatt, as in the instant matter, this tribunal considered whether apportionment was appropriate under Sec. 31-299b or under the common law scheme set out in Mund v. Farmer’s Cooperative, Inc., 139 Conn. 338 (1952). We concluded that apportionment was not appropriate under either the statute or the scheme set out by the court in Mund.

We believe the underlying facts in Hatt, are analogous to the matter at hand. In Hatt, the claimant sustained an injury to her left foot and was rated as having sustained a 10% disability to her left foot. Some ten years later, the claimant filed a Form 30C and claimed that her job duties were causing a worsening of the left foot disability and causing a problem with her right foot.

In its consideration of the application of Sec. 31-299b, the Hatt panel noted:

Section 31-299b, . . . is designed to address single injuries, such as occupational diseases or repetitive traumas, that consist of a period of prolonged exposure spanning a time continuum involving multiple employers or insurers.4 Kelly v. Dunkin’ Donuts, 4278 CRB-4-00-8 (Nov. 1, 2001); Thomen v. Turri Electric, 11 Conn. Workers’ Comp. Rev. Op. 299, 301-302, 1324 CRD-5-91-10 (Dec. 23, 1993). It cannot be used to apportion liability among two or more entirely separate and identifiable injuries. Id.; Simmons v. UTC/Sikorsky Aircraft Div., 3904 CRB-4-98-9 (Sept. 17, 1999). (Emphasis ours)

Hatt, supra, p. 8-9.

The appellants contend that it was error for the trial commissioner not to make a finding as to whether the claimant’s February 2000 injury was the result of repetitive trauma. Once the February 2000 injury was determined to be a “new” injury, given our holding in Hatt, we fail to see what would be the legal significance of a finding that the “second” injury’s source was the result of repetitive trauma.5

The appellants’ argument seeking application of apportionment as outlined by the court in Mund, supra, is also foreclosed by our opinion in Hatt. In Hatt, this tribunal examined legislative changes effected since our Supreme Court’s ruling in Mund, supra. In Hatt, we observed that Public Act No. 95-277 closed the Second Injury Fund. Arguably if the legislature had not “closed” the Second Injury Fund, the underlying facts in Hatt and the factual scenario we confront here, would have imposed liability on the employer/insurance carrier on the risk at the time of the second injury for a period of 104 weeks. Following that 104-week period, and assuming the notice provisions of Sec. 31-349 were met, the liability for the second injury would have rested with the Second Injury Fund. In Hatt we concluded that as the legislature in Sec. 31-349(a) removed the Second Injury Fund as the payment source but left the language permitting compensation to a worker with a previous disability who “incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone”, the legislature merely altered what entity would be the source of those payments.

“The most reasonable inference would be that the legislature meant to retain the part of § 31-349 that assigns liability in the first instance to the second-injury employer, with that same employer now assuming liability in the second instance as well. There is no clear indication that our lawmakers intended otherwise.”

Hatt, supra, p. 18.

We thus concluded that the payment source was the employer/insurance carrier at the time of the second injury. The same legal rationale applies to the instant matter and thus, yields the same result.6

This tribunal’s interpretation of Sec. 31-349(a) in Hatt compels us to conclude that the appellants are liable for all benefits flowing from the February, 2000 injury. However, as we also noted in Hatt, and above (see footnote 3) the appellants may avail themselves of the provision in Sec. 31-349(a) permitting a deduction for benefits paid pursuant to Sec. 31-308(b).

We therefore affirm the August 13, 2001 Finding and Award of the Commissioner acting for the Fourth District.

Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.

1 Appellants were held liable for temporary total, temporary partial and permanent partial benefits as well as medical treatment stemming from the February 7, 2000 injury. See also footnote 3 infra. BACK TO TEXT

2 Hatt v. Burlington Coat Factory, 4326 CRB-2-00-12 (December 18, 2001) appeal docketed No. SC 16737 was appealed from the Compensation Review Board to the Appellate Court A.C. 22630. It was transferred to the Supreme Court and is currently pending Docket No. SC 16737. BACK TO TEXT

3 However, we note that the trial commissioner in his Finding and Award detailing the appellants’ liability found they were liable for permanent partial disability benefits. Our review of the record indicates that at the point where proceedings before the trier were concluded, permanent partial disability benefits flowing from the February 7, 2000 injury had not been determined. If and when a permanent partial disability rating is determined Sec. 31-349(a) permits the appellants a credit for the permanent partial benefits paid to the claimant as a result of the March 6, 1991 injury. See Hatt, supra, p. 18. BACK TO TEXT

4 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

5 We note that the appellants’ brief concedes that there is no question that on February 7, 2000 the claimant sustained a “new” injury. See Appellants’ Brief, p. 7 footnote 1. Additionally, as the appellants note, a determination of whether the claimant sustained a “new” injury is a factual question to be determined by the trier. Colas v. Marriott Foods Services, 9 Conn. Workers’ Comp. Rev. Op. 86, 88-89, 939 CRB-7-89-11 (Feb. 26, 1991). Such a determination will not be disturbed unless it is contrary to law, is without evidence or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). BACK TO TEXT

6 We also note the appellants challenge certain procedural aspects of the trier’s Finding and Award. In terms of procedure, the appellants contend that the trial commissioner acknowledged apportionment as an issue to be decided. The appellants argue that their assignment as solely liable, in effect, was a failure of the commissioner to make any determination on the issue of apportionment. The appellants argue this matter should be remanded to the commissioner for a finding on apportionment. Given the conclusion reached here today we find this challenge is without merit. BACK TO TEXT

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