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Sadosky v. U.S. Properties, Inc.

CASE NO. 4751 CRB-2-03-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 2, 2004

THERESA SADOSKY

CLAIMANT-APPELLEE

v.

U.S. PROPERTIES, INC.

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLANTS

and

ROYAL & SUNALLIANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The respondent Hartford Insurance Group was represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondent Royal & Sunalliance was represented by Marie Gallo-Hall, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the November 5, 2003 Finding and Award of the Commissioner acting for the Second District was heard May 28, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr. and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent, Hartford Insurance Group (hereinafter “Hartford Insurance”), has appealed from the November 5, 2003 Finding and Award of the Commissioner acting for the Second District. We affirm the decision of the trial commissioner.

The pertinent facts are as follows. The claimant, Theresa Sadosky, has been employed as an office manager and administrative assistant for the respondent employer, U.S. Properties, Inc., for 18 years. Most of her job involved typing or word processing. Six to eight years ago the claimant initially experienced pain in her right wrist, forearm and elbow which progressed to the point that she sought medical treatment from Dr. Patricia Stuart on April 24, 2000. Dr. Stuart diagnosed the claimant as having elements of medial and lateral epicondylitis, cubital tunnel syndrome and carpal tunnel syndrome. Additionally, the claimant underwent nerve conduction testing and electromyographic studies which were positive for ulnar neuropathy. At that point, the claimant established a claim with an April 18, 2000 date of injury which was paid by respondent-insurer Royal & Sunalliance.

Initially, Dr. Stuart treated the claimant conservatively with physical therapy and a prescription for Celebrex which alleviated some of the claimant’s pain, however, she still had some symptoms. On April 28, 2000 the claimant was 80 per cent better and had days when she felt completely normal, although she continued to experience pain after strenuous activities. The claimant completed her treatment with Dr. Stuart at that time. She self-treated for three months thereafter which entailed icing, heating, home exercise and the use of Tylenol Arthritis or Celebrex. After August 2000 the claimant continued to perform her regular work duties, however, she took more frequent breaks, used the computer mouse with her left hand and performed half of her non-typing work related tasks with her left hand. A few months later the claimant’s symptoms started to increase again.

Within two to five months of August of 2000 the claimant’s symptoms increased to the point where were the claimant believed she should have returned to Dr. Stuart. However, she did not do so because she believed that the next course of treatment would involve surgery and she was concerned that she was the only person doing her job at that time. During April 2001 the respondent-employer changed its workers’ compensation insurance carrier to Hartford Insurance. In September 2001 the claimant’s symptoms were worse than they had been in April 2000. On September 25, 2001 the claimant returned to Dr. Stuart who administered an injection into the lateral epicondylar area which provided the claimant approximately one week of pain relief. On October 18, 2001 Dr. Stuart opined the claimant required surgery for her condition.

On October 15, 2001 Dr. Stuart opined the claimant’s original symptoms never fully resolved and that her ongoing symptoms were a continuation of her prior workers’ compensation claim. On February 6, 2002 Dr. Stuart opined that the claimant’s employment activities prior to April 2000 were responsible for 75 percent of her then condition and work activities between August 2000 and September 2001 were responsible for 25 per cent of the condition.

Dr. Duffield Ashmead performed an independent medical examination on May 6, 2002. Dr. Ashmead opined that the claimant’s cubital tunnel and lateral epicondylar component were well established, well described and sufficiently severe such that subsequent work exposures did not contribute to causing a condition which already existed. He further opined that by continuing to perform any work or non-work related activities, her symptoms would have worsened.

The trial commissioner found that as a result of the claimant’s employment and exposure to repetitive trauma with the respondent-employer the claimant developed cubital tunnel and lateral epicondylitis which were well established in April 2000. He further found that after August 2000 the claimant’s performance of her regular job duties caused her to continue to be exposed to the repetitive trauma which aggravated her established cubital tunnel and lateral epicondylitis causing her symptoms to become increasingly worse. Ultimately the trial commissioner determined that in April 2001, the Hartford Insurance became the respondent-employer’s insurer and “because from a legal standpoint the claimant’s continued injurious exposure to repetitive trauma extended into the Hartford Insurance Group’s period of coverage, they are initially liable for all benefits to which the claimant is entitled.” Findings, ¶ E.D. Therefore, the trial commissioner ordered that as of October 18, 2001 the Hartford Insurance Group should assume liability for all benefits the claimant may be entitled to as a result of her cubital and lateral epicondylitis condition.

The issue at the formal hearing was apportionment of liability under § 31-299b C.G.S. May 1, 2003 and June 26, 2003 hearing notices. Under § 31-299b apportionment is appropriate in the case of a repetitive trauma or occupational disease where a single injury occurred over a period of time where several employers or insurance carriers were involved. Kelly v. Dunkin Donuts, 4278 CRB-4-00-8 (November. 1, 2001); Thomen v. Turri Electric, 11 Conn. Workers’ Comp. Rev. Op. 299, 1324 CRD-5-91-10 (December. 23, 1993). The trial commissioner is charged with the task of sifting through the evidence in order to determine whether an injury is new and distinct or merely a single injury which exhibits symptoms over a period of time. Boccuzzi v. Norwalk Courtyard Marriott, 4123 CRB-07-99-9 (October. 11, 2000).

Here the trial commissioner evidently relied on Dr. Stuart’s opinion. On March 5, 2002, Dr. Stuart specifically opined that she first treated the claimant in April of 2000 and that as of August 2000 the claimant was not back to normal, “she [the claimant] still had intermittent symptoms of both pain and numbness.” Respondent Royal Sunalliance’s Exhibit 1. Dr. Stuart further opined that as of August or September of 2001, “her symptoms returned gradually with daily use of the right extremity.” Id. Dr. Stuart believed “that all of the repetitive use of the right upper extremity combined to give her her [sic] current symptoms.” She further opined that “activity during both periods contributed to her current situation.” Id. It is clear Dr. Stuart’s opinion was that the claimant’s symptoms never vanished, but rather continued steadily throughout the entire period. This differs from Dr. Ashmead’s opinion that the claimant’s symptoms were well established at the time of diagnosis and that her employment after that initial diagnosis was not contributory. Respondent Hartford Group’s Exhibit 6, May 6, 2002 I.M.E. report. As the trier of fact the trial commissioner is entitled to weigh the evidence and determine which evidence to accept and which to reject. Krajewski v. Atlantic Machine Tool Works, Inc., 4500 CRB-6-02-3 (March. 7, 2003); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July. 17, 1998). We will not disturb this finding unless it is unsupported by the record. Nasinka v. Ansonia Copper & and Brass, 13 Conn. Workers’ Comp. Rev. Op. 332, 1592 CRB-5-92-12 (April. 27, 1995).

Hartford Insurance contends that the trial commissioner should not have given any weight to Dr. Stuart’s March 5, 2002 opinion because it was not “based fairly in the relevant and material evidence before the commissioner.” Respondent Hartford Insurance’s April 21, 2004 Brief , p. 11. Dr. Stuart’s March 5, 2002 letter to Royal & Sunalliance’s counsel was in response to an inquiry from said counsel dated February 6, 2002. See respondent Royal & Sunalliance’s Exhibit 1. Hartford Insurance argues that the letter of inquiry to Dr. Stuart should have referenced certain portions of the claimant’s testimony regarding her symptoms and self treatment in the periods between Dr. Stuart’s treatments. We see no error in the trial commissioner’s consideration of Dr. Stuart’s March 5, 2002 opinion. If Hartford Insurance had questions regarding the basis for Dr. Stuart’s opinion they were free to depose her. Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March. 25, 2003). Furthermore, the appellants never objected to the admission of Dr. Stuart’s reports at the formal hearings. If the trial commissioner believed that Dr. Stuart’s opinion was invalid based on an insufficient history provided by the claimant then he was free to discount her opinion. Dallaire v. Paper Delivery, Inc., 3951 CRB-65-98-12 (January. 19, 2000). Evidently, the trial commissioner considered the record and determined Dr. Stuart had the information necessary to provide a credible opinion. The trial commissioner denied Hartford Insurance’s Motion to Correct regarding that matter. That decision will not be disturbed on appeal.

Hartford Insurance also argues that the trial commissioner erred in concluding that a further injury occurred or that the claimant’s injury was aggravated by subsequent work activities. On March 5, 2002, Dr. Stuart opined that activities during both periods contributed to the claimant’s condition. Respondent Royal & Alliance’s Exhibit 1. Dr. Stuart also opined that claimant’s activities prior to April 2000 were responsible for 75 percent of the claimant’s condition and her activities between August 2000 and September 2001 were responsible for 25 percent of her condition. Findings, 23; Respondent Royal & Sunalliance’s Exhibit 1. Again this is a factual determination relating to the weight and credibility the trier assigned to the evidence.

Hartford Insurance argues that the activities subsequent to the claimant’s initial treatment were merely an aggravation of existing symptoms and as such there was only one injury. Thus, apportionment under § 31-299b cannot lie. Hartford Insurance contends this case is factually similar to Kisson v. Shawmut National Bank, 4188 CRB-5-00-2 (March. 16, 2001) and that the panel in Kisson wrongly held there was no distinction between an aggravation of symptoms and an aggravation of a condition. In essence the appellant asks us to use the instant matter as a vehicle to revisit our conclusion and the legal reasoning we employed in Kisson in reaching our conclusion. As we have stated in prior cases our determinations are governed by the principle of stare decisis. “The doctrine of stare decisis doctrine counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it.” George v. Ericson, 250 Conn. 312, 318 (1999), quoting Hall v. Gilbert & Bennet Mfg., Co., 241 Conn. 282, 296 (1997); Weymouth v. East Windsor-Police Department, 4550 CRB-1-02-7 (April. 3, 2003).

Furthermore, the Kisson tribunal ordered a remand to the trial commissioner for the purpose of assuring that the trial commissioner considered the Appellate Court’s holding in Epps v. Beiersdorf, Inc., 41 Conn. App. 430 (1996). In Kisson, a bank teller suffered a compensable repetitive trauma to her master hand. As time went on the claimant complained of symptoms progressing in her upper arms. For part of the time of the claimant’s exposure to repetitive trauma in her employment, the employer was insured by Travelers and during another period the employer was self-insured. The trial commissioner concluded that Travelers was fully liable. However, the record reflected a medical report in which the claimant’s treating physician opined that the claimant’s work “aggravated her right elbow to the extent that she had decided to undergo elective surgery.” Kisson, supra. The CRB concluded that the Appellate Court’s ruling in Epps, supra, had some bearing, although considered in light of a different statutory apportionment scheme, i.e. § 31-275(1)(D). It then remanded the matter.

In Epps, supra, the Appellate Court held that where the medical evidence noted the “aggravation” of the claimant’s pulmonary condition due to his exposure to chemicals in the workplace the only legal conclusion that could be drawn was that the claimant suffered an aggravation of a pre-existing condition and the CRB erred in construing the term aggravation as synonymous with irritation. This was based on the concept that “an employer takes the employee in the state of health which it finds the employee.” Id., 435. The Epps court ordered a remand for a determination of the apportionment of liability pursuant to § 31-275 (1)) (D) in light of its conclusion that the claimant suffered a workplace aggravation of a pre-existing condition.

Kisson is factually analogous to the instant matter. Here the trial commissioner determined that the claimant suffered from a continuous exposure to repetitive trauma and liability is being assessed against the employer on the basis of § 31-299b. Under § 31-299b the last insurance carrier on the risk is deemed initially liable for the benefits with a right to seek apportionment against other employers or insurance carriers.

Here, the trial commissioner found “subsequent to August 2000 the claimant continued to perform her regular job functions and continued to be exposed to repetitive trauma which aggravated her established cubital tunnel and lateral epicondylitis condition and caused her symptoms to become progressively worse to the point where she again sought medical treatment. . .” Findings, ¶ D.E. This is a repetitive trauma case and therefore by its very nature it is an ongoing injury, occurring overtime. Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 613 (2000). The evidence not only supports a worsening of symptoms, but a worsening of the condition as well. This finding is supported by Dr. Stuart’s medical reports. Respondent Royal & Alliance’s Exhibit 1; Respondent Hartford Insurance’s Exhibit 5. Therefore, we find no error with the trial commissioner’s finding on that basis.

Hartford Insurance also contends that the only evidence in the case supports a conclusion that the claimant’s symptoms had fully recurred by January of 2001 and that only the claimant’s desire not to take time off from work delayed her treatment. The appellants contend therefore, that the trial commissioner should have ordered that Royal & Sunalliance be initially liable for the claimant’s surgery and associated benefits. Hartford Insurance points us to Dr. Ashmead’s opinion that the claimant was a surgical candidate in January 2001, however, the trial commissioner clearly relied on Dr. Stuart’s opinion that this was a continuing injury made worse as the claimant’s activities progressed over time. Findings, ¶ 22. Again the trial commissioner had the right to choose which medical evidence to rely on and we will not overturn that determination on appeal. Dallaire, supra.

For these reasons, we affirm the November 5, 2003 Finding and Award of the Commissioner acting for the Second District.

Commissioners A. Thomas White, Jr. and Charles F. Senich concur.

Workers’ Compensation Commission

Page last revised: December 13, 2004

Page URL: http://wcc.state.ct.us/crb/2004/4751crb.htm

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