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Demagistris v. Commercial Sewing, Inc. et al.

CASE NO. 4862 CRB-5-04-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 19, 2005

JOHANNA DEMAGISTRIS

CLAIMANT-APPELLEE

v.

COMMERCIAL SEWING, INC.

EMPLOYER

and

ROYAL AND SUNALLIANCE

INSURER

RESPONDENTS-APPELLEES

TRIO FASHIONS

EMPLOYER

and

TRAVELERS INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Laura Ondrush, Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., Westgate Office Center, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410. However, the proceedings on appeal did not involve the claimant. Therefore, counsel did not appear or file a brief.

The respondents Commercial Sewing, Incorporated and Royal and SunAlliance were represented by Joseph Passaretti, Jr., Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The respondents Trio Fashions and Travelers Property & Casualty were represented by Matthias DeAngelo, Esq., Law Offices of Scott B. Clendaniel, 300 Windsor Street, P.O. Box 2138, Hartford, CT 06145-2138.

This Petition for Review from the September 2, 2004 Finding & Award of the Commissioner acting Fifth District was heard March 18, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, Trio Fashions and Travelers Property & Casualty, have appealed from the September 2, 2004 Finding and Award of the Commissioner acting for the Fifth District.1 We affirm the decision of the trial commissioner.

The pertinent facts as found by the trial commissioner are as follows. On September 30, 1997 the claimant sustained a compensable injury to her back as a result of repetitive trauma while working as a seamstress. The claimant worked for Commercial Sewing, Inc. (hereinafter “Commercial Sewing”) in 1996 and 1997, prior to that she had worked for Trio Fashions, Inc. (hereinafter “Trio Fashions”) in 1995. Royal and SunAlliance, the insurance carrier for Commercial Sewing, Inc. paid benefits to the claimant. The issue at the hearings below was a § 31-299b C.G.S. apportionment/reimbursement claim Royal and SunAlliance was pursuing against Trio Fashions who was insured by Travelers Insurance Company (hereinafter “Travelers”). Travelers asserted that the claimant did not have any injurious exposure while working at Trio Fashions, therefore, it had no § 31-299b liability.

Dr. Patrick Mastroianni, the claimant’s attending physician, opined the claimant’s work as a seamstress was the cause of her back injury starting in 1995. Dr. Arthur Geiger was of a similar opinion that the claimant’s injury started in 1995.

The trial commissioner found that the claimant’s exposure to repetitive trauma that led to her back injury began in 1995 while the claimant was working for Trio Fashions. He found that Royal and SunAlliance was entitled to 11.1% apportionment/reimbursement against Travelers and ordered the parties to work out an accounting. Travelers has appealed this Finding and Award.

The appellants assert that the trial commissioner erred in finding the claimant’s work at Trio Fashions contributed to her back injury. They contend there was no evidence in the record indicating the claimant did repetitive twisting motions while working at Trio Fashions and thus, her employment with Trio did not cause her back injury. The trier relied on Dr. Mastroianni’s opinion that the claimant’s work as a seamstress was the cause of her back injury. In Dr. Mastroianni’s March 7, 2001 letter he states in part, “Mrs. Demagistris is involved in repetitive twisting motions in her job as a professional seamstress.” Dr. Mastroianni explained, “It is my opinion based upon medical probability, that it is these repetitive motions carried out over many years that have produced the spinal degeneration.” Respondent Royal and SunAlliance’s Exhibit 3.

The appellants contend that according to the claimant’s deposition testimony she never performed any twisting motions while she worked at Trio Fashions and therefore it was an error to conclude that she was injured in its employ. At her deposition, the claimant explained, at Trio Fashions small pieces were brought directly to her to sew while she sat at her sewing machine. Respondent Travelers’ Exhibit 9, April 25, 2002 Deposition, pp. 13, 14. The claimant was specifically asked whether she ever had to turn or twist in order to get her work pieces and she answered that she did not. Id., p. 43. There was no specific testimony about whether the claimant had to twist or turn at all while she was actually using the sewing machine or performing related tasks at Trio Fashions.

Although Dr. Mastroianni did not specifically state which actions the claimant did as a seamstress that he believed equated to “repetitive twisting motions,” it is understood that the machine operator does not sit completely still. Respondent Royal and SunAlliance’s Exhibit 3. There is necessarily some bodily movement involved in the job and it is certainly reasonable to infer that any sewing machine operator would likely twist her body in order to run the pieces through the machine. If the appellants were of the opinion that the claimant never twisted her body while performing her work tasks at Trio Fashions, they were free to question the claimant further about her movements while sewing. If the appellants believed that Dr. Mastroianni was misinformed about the nature of the claimant’s work tasks, they had the opportunity to depose Dr. Mastroianni regarding the basis of his opinion.

We will not overturn a commissioner’s factual findings unless they are without evidence, based on unreasonable or impermissible factual inferences or contrary to the law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988); Estate of Tracy v. Scherwitzky Gutter Co., 4797 CRB-1-04-3 (February 21, 2005). A trier is free to accept any medical opinion that is stated with a reasonable degree of medical probability. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Orlando v. Reliable Construction Services, 4791 CRB-8-04-3 (April 6, 2005). Based on the evidence in the record we believe the trial commissioner reasonably accepted Dr. Mastroianni’s opinion when the trier found that “the injurious exposure/repetitive trauma that led to the claimant’s back injury started in 1995 while working for Trio Fashions.” Findings, ¶ 11.

For these reasons, we affirm the trial commissioner’s findings.

Commissioners Stephen B. Delaney and Michelle D. Truglia concur.

1 We note that an extension of time was granted during the course of the appellate process. BACK TO TEXT

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