State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Gacy v. Westchester Motor Lines et al.

CASE NO. 4867 CRB-3-04-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 12, 2005

JOSEPH G. GACY, JR.

CLAIMANT-APPELLEE

v.

WESTCHESTER MOTOR LINES

EMPLOYER

and

CRUM & FORSTER

INSURER

RESPONDENTS-APPELLANTS

and

HALLAMORE MOTOR TRANSPORTATION

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Law Offices of Paul E. Farren, Jr., P.C., 94 Prospect Street, New Haven, CT 06511.

The respondent employer and Crum & Forster were represented by Lisa A. Bunnell, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The respondent employer and Liberty Mutual Insurance Co. were represented by James Moran, Esq., Maher & Williams, P. O. Box 550, Fairfield, CT 06824.

This Petition for Review from the September 16, 2004 Finding & Dismissal of the Commissioner acting for the Third 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 Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent employer and its insurer Crum & Forster have petitioned for review from the September 16, 2004 Finding and Dismissal of the Commissioner acting for the Third District. They contend on appeal that the trier erred by dismissing their apportionment claim against the respondent insurer Liberty Mutual. We find no error, and affirm the trial commissioner’s decision.

We begin by setting forth the relevant facts found by the trier in her decision, and also by referring to certain legal documents that have been filed in the present litigation, of which the trier took administrative notice. The claimant suffered neck and back injuries on May 7, 1987, after being involved in a tractor trailer accident while he was working for the respondent Hallamore Motor Transportation. The respondent Liberty Mutual Insurance Co. was the workers’ compensation insurer on the risk, and it paid benefits to the claimant before settling the claim on a full and final basis. Following his injury, the claimant returned to work for Hallamore until sometime in 1989. During that time, he continued to perform the customary duties of a tractor trailer operator, which resulted in vibration and jarring insults to his spine. After leaving Hallamore, the claimant moved to Vermont, where he did not pursue his occupation as a truck driver.

The claimant returned to Connecticut in 1994, and began a one and one-half year stint working as a truck driver for Christoforo’s Northford Gardens, Inc. After leaving that job in 1995, he accepted employment driving trucks for the respondent Westchester Motor Lines, where he remained until January 28, 2000. During his term of employment at Westchester, the claimant suffered two back injuries for which he filed compensation claims: one on February 18, 1998, and another on October 2, 1998. He also testified to a back injury that he suffered in 1999, though this Commission has no record of a claim having been filed for a 1999 date of injury.

On May 8, 2000, the claimant filed a Form 30C alleging repetitive trauma to his back during the course of his employment with Westchester, including an aggravation or exacerbation of pre-existing injuries suffered during long-distance tractor trailer driving between Connecticut and New Jersey. The listed date of injury was January 28, 2000. During his testimony, the claimant clarified that these “pre-existing injuries” referred to the back injuries he collectively suffered during 1998 and 1999, and the long-distance truck driving he did between March 1999 and January 2000.

The claimant was diagnosed by Dr. Murphy, one of his treating physicians, as having mechanical back and leg pain secondary to degenerative disc and joint disease. Dr. Sella, a respondent’s examiner, wrote that the claimant’s pre-1998 degenerative disc disease was attributable to repetitive trauma from truck driving. We note that in Dr. Sella’s July 26, 2000 report, he opined that the claimant had a 20% permanent partial disability of the lumbar spine, half of which stemmed from the repetitive injury caused by 11 years of truck driving. Joint Exhibit 5. With regard to the other 50% of the permanency, 15% was due to the claimant’s accepted February 1998 injury, while 35% was due to the settled 1987 injury. The claimant was also given an 11% permanent partial disability rating by Dr. Gaudinez, another treater, as of April 8, 1999, since which time he has undergone back surgery, including a disc excision and laminectomy.

The claimant’s period of employment with Westchester implicates two workers’ compensation insurers: Crum & Forster and the Fairfield Insurance Company. Although Fairfield was the last carrier on the risk, Crum & Forster administered the claim pursuant to § 31-299b C.G.S. In its capacity as Westchester’s insurer, Crum & Forster accepted the February 18, 1998 date of injury, but denied the incidents of October 2, 1998 and January 28, 2000. During the pendency of this claim, Westchester has paid out a total of $306,373.25. On July 2, 2002 the two insurance carriers entered into an “Award by Stipulation for Full and Final Settlement” with the claimant, whereby Westchester maintained its denial of the latter two dates of alleged injury. Crum & Forster was then able to obtain reimbursement of an apportioned share of liability from Fairfield as part of the settlement. Crum & Forster also procured some reimbursement from the Second Injury Fund via a December 12, 2002 Finding and Award, which was intended to cover the period of liability attributable to the uninsured employer Christoforo’s Northford Gardens, Inc. Liberty Mutual, meanwhile, disputed its liability for apportionment.

The trial commissioner ruled that the only claim accepted by Westchester was the specific injury of February 18, 1998, which is not eligible for apportionment under § 31-299b. There was no voluntary agreement issued accepting the repetitive trauma claim of January 28, 2000, nor was there an adjudication of apportionment for that injury. Furthermore, Westchester denied the existence of any repetitive trauma injury in its July 2, 2002 “Award by Stipulation for full and Final Settlement.” Noting that, under the reasoning of Hatt v. Burlington Coat Factory, 263 Conn. 279, 287 (2003), the January 28, 2000 repetitive trauma claim constitutes a distinct injury separate from the three prior accidental injury claims involving the claimant’s back, the trial commissioner explained that apportionment against Liberty Mutual was unavailable for any exposure to repetitive trauma that occurred while the claimant was working at Hallamore. The respondents Westchester and Crum & Forster then filed an appeal from that decision, along with the denial of their subsequent Motion to Correct.

The appellants argue that the medical evidence demonstrates that repetitive trauma was the cause of the claimant’s back condition, and that his lumbar spine progressively deteriorated from 1987 forward, during the entire period of his work as a truck driver. In their view, the claimant’s testimony, the Form 30C, the Finding and Award, and Dr. Sella’s deposition all support such a conclusion. “It is evident that the claimant’s work history supports repetitive stress placed on his body as a result of repetitive trauma to his spine while working as a truck driver following the 1987 accident with Hallamore. . . . The fact that the claimant settled his case for the specific injury which occurred in 1987 does not preclude Westchester from seeking apportionment for the repetitive trauma that the claimant suffered while working following his specific injury in 1987 through 1989.” Brief, pp. 13-14. They contend that the trier should have found one continuous period of repetitive trauma from 1987 through 2000, which they allege would have been subject to apportionment among all carriers, including Liberty Mutual, pursuant to Hatt, supra.

The hearing notices in the instant matter referred only to apportionment of liability as the issue for determination by the trial commissioner. It was at the formal hearing where the respondent Crum & Forster specifically asked the trial commissioner to make a determination “as to whether this case can be found as repetitive trauma or your opinion, when you review the evidence, is a specific trauma.” March 10, 2004 Transcript, p. 11. In their Proposed Findings of Fact, the appellants requested that the trier find “that the Claimant did sustain his injuries as a direct result of work-related repetitive trauma as a truck driver at various times from 1987 through January of 2000.” Earlier, as per the July 2, 2002 approved stipulation, the respondents had admitted the accident of February 18, 1998, but had denied the October 2, 1998 and January 28, 2000 accidents, the latter of which alleged repetitive trauma. The settlement agreement went on to state that “the respondent Crum & Forster Insurance Company expressly reserves its right to seek apportionment pursuant to C.G.S. Section 31-299b for liability from carriers and/or employers prior to Crum & Forster’s period of coverage for Westchester Motor Lines.” Joint Exhibit 7. Unlike a finding of compensability by a trier of fact, a settlement agreement does not constitute an acceptance of a disputed claim of injury, unless the parties so stipulate. See, e.g., Malz v. State/University of Connecticut Health Center, 4701 CRB-6-03-7 (August 20, 2004)(settlement of total disability claim did not equate to acceptance of total disability status, as said fact was not stipulated to exist).

Our records reflect that Hallamore and its insurer Liberty Mutual were not notified of the stipulation approval hearing, or the informal hearings preliminary to it. Liberty Mutual was notified of the December 11, 2002 formal hearing that resulted in the reimbursement award against Christoforo’s Northford Gardens (who had been notified of the stipulation hearing, unlike the Second Injury Fund, which ultimately assumed liability for that award under § 31-355 C.G.S.). However, evidence was not introduced at the December 2002 hearing to establish a compensable repetitive trauma injury. Also, at that time, no liability was assessed against Liberty Mutual for its period of coverage, nor was any determination made regarding that time period. Thus, we draw no negative inference from Liberty Mutual not having challenged that reimbursement award.

As the finder of fact, the trial commissioner was entitled to draw her own inferences from the evidence, and judge the credibility of the various lay and expert witnesses. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). While the reports of Dr. Sella attested to a long period of progressive disc disease temporarily aggravated by a series of specific injuries, the claimant’s Form 30C and his testimony indicated otherwise. The claimant maintained that the repetitive trauma injury being claimed was only for trauma that occurred between March 1999 and January 2000. The trier took note of this, and also noted that Dr. Gaudinez had found the claimant to have reached maximum medical improvement on April 8, 1999. Observing that the respondents had not accepted the alleged repetitive trauma injury, the trier then concluded that the January 28, 2000 repetitive trauma claim was “a fourth separate and distinct injury which would preclude apportionment thereunder.” Findings, ¶ I.

No matter how well-reasoned the reports and testimony of Dr. Sella may seem to the appellants, the trier was not required to rely on them in her decision. Duddy, supra. From her findings, we infer that she concluded that the alleged repetitive trauma did not extend from 1987 through 2000, as found by Dr. Sella, but rather over a much shorter repetitive trauma period that began in March 1999. We thus need not decide whether, under Hatt, a single repetitive trauma claim for the claimant’s back from 1987 through 2000 would have been subject to apportionment under § 31-299b where an accepted back injury also occurred in February of 1998. See Liberty Mutual Appellee Brief, p. 9. It is enough to say that the trial commissioner reasonably found that the repetitive trauma claim in this case did not suffice to warrant an order of apportionment under § 31-299b.

The trial commissioner’s decision is thus affirmed.

Commissioners Stephen B. Delaney and Nancy E. Salerno concur.

Workers’ Compensation Commission

Page last revised: October 24, 2005

Page URL: http://wcc.state.ct.us/crb/2005/4867crb.htm

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