State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Fratino v. Harry Grodsky & Co., Inc.

CASE NO. 5087 CRB-7-06-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 8, 2007

ANTHONY FRATINO, JR.

CLAIMANT-APPELLEE

v.

HARRY GRODSKY & CO., INC.

EMPLOYER

and

CRUM & FORSTER

INSURER

RESPONDENTS-APPELLEES

and

ST. PAUL TRAVELERS

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Jonathan H. Dodd, Esq., Dodd, Lessack, Dalton & Dodd, LLC, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The respondent Crum & Forster was represented by David A. Kelly, Esq., Montstream & May, LLP, Salmon Brook Road, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The respondent St. Paul Travelers was represented by Timothy G. Zych, Esq., Law Office of Cynthia M. Garraty, Crossroads Corporate Park, 6 Devine Street, North Haven, CT 06473.

This Petition for Review filed from the May 2, 2006 Finding and Award of the Commissioner acting for the Seventh District was heard December 15, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent, St. Paul Travelers Insurance, appeals from the May 2, 2006 Finding and Award of the Commissioner acting for the Seventh District. In that Finding and Award the trial commissioner found the claimant suffered two compensable injuries to his left shoulder. The first injury occurred February 6, 1996 while the respondent, St. Paul Travelers Insurance was the carrier for the respondent employer. On that date, the claimant slipped and fell on a wet floor injuring his left shoulder. The respondent, St. Paul Travelers Insurance, ultimately accepted liability for the claimant’s injury.

The trial commissioner found that on June 8, 1998 the claimant was injured again. While carrying a four-inch steel pipe the claimant experienced pain in his left shoulder, dropped the pipe and injured his left hand. The insurance carrier on the risk at that time was Crum and Forster. The respondent, Crum and Forster, only accepted liability for the left hand injury.

The appellant presents the following issue on appeal; whether the trial commissioner erred in holding that the February 2, 1996 date of injury is the substantial factor in the claimant’s need for left shoulder replacement surgery. The appellant’s first argument is that the trial commissioner applied an incorrect legal standard in her proximate cause analysis. The appellant argues that the trial commissioner found the claimant’s February 2, 1996 injury to be the substantial factor precipitating the claimant’s need for surgery. The appellant argues the trial commissioner’s statement reflects that she based her conclusion on the injury she found to be “the most important” in the chain of causation. The appellant contends that the law requires that an injury need only be “a” substantial factor in precipitating claimant’s need for surgery. The appellant then reasons that as the June 1998 injury was “a” substantial factor, liability for the shoulder replacement surgery rests with the carrier on the risk for the June 1998 injury pursuant to the Supreme Court’s holding in Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003).

The appellant is correct that the appropriate legal standard for proximate cause analysis is whether an event was a substantial factor in the chain of causation. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104 (1987). We think, however, the appellant reads the trial commissioner’s finding out of context and therefore incorrectly.

By finding that the February 1996 injury was “the” substantial factor, the trial commissioner appears to conclude that the February 1996 injury was the only substantial factor in the chain of causation and thus, the June 1998 injury was not a substantial factor. This reading is consistent with the remainder of the trial commissioner’s findings and conclusion.

Additionally, the appellant argues that the commissioner’s factual findings are inconsistent with her conclusion. The appellant points out that in Finding, ¶ 3 the trial commissioner found, “The claimant sustained two compensable injuries to his left arm ... one on February 6, 1996 and the other on June 8, 1998.” The appellant seems to argue that as the trier found two injuries, the second injury must be of legal significance in the proximate cause analysis. We are not so persuaded.

We think that ¶ 3 of the Finding and Award merely reflects the history of events leading to the claim. There is no question that the claimant sustained compensable injuries on February 6, 1996 and June 8, 1998. The question before the commissioner was which, or if both injuries, were substantial factors in the need for shoulder replacement surgery. That determination is to be made by the trial commissioner and is based on the weight and credibility she assigns to the evidence. See e.g., Burke v. Shaw’s Supermarkets, Inc., 4503 CRB-6-02-3 (August 25, 2003), appeal dismissed, A.C. 24693 (February 17, 2004).

Dr. Arthur Brovender was claimant’s treating orthopedic physician following the February 6, 1996 injury. Dr. Brovender diagnosed the claimant as suffering a torn rotator cuff of the left shoulder and noted there was no arthritis in the left shoulder. In a September 24, 1996 report, Dr. Brovender noted that, for the first time, x-rays were showing arthritic changes in the claimant’s left shoulder.

All of these changes were found prior to the claimant’s June 8, 1998 injury. The first report of injury filed relating to the June 8, 1998 incident reported that the claimant sustained lacerations and bruising to some fingers. In April 1999 the claimant began treating with Dr. Craig R. Foster, also an orthopedic surgeon. In Finding, ¶ 19 the trial commissioner found “On December 23, 2004, Dr. Foster states that he believes that the first injury caused the rotator cuff tear and the second injury exacerbated the first injury.” On March 8, 2004, Dr. Foster recommended the replacement of claimant’s left shoulder. Additionally, the respondent Crum & Forster asked Dr. Kevin P. Shea, an orthopedic surgeon, to examine the claimant. Dr. Shea opined that the 1996 incident was totally responsible for the claimant’s need for shoulder replacement surgery.

The appellant filed a Motion to Correct. Among the corrections sought was the correction of ¶ 19 of the Finding and Award. The trial commissioner denied the respondent’s Motion to Correct. We conclude the trial commissioner did not err in her denial of the motion to correct. The trier’s finding in ¶ 19 is rooted in the trial commissioner’s right to accept or reject all of an expert’s opinion, or merely portions of it. Gagliardi v. Eagle Group, Inc., 4496 CRB-2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004)(per curiam). See also, Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). Further, opinions expressed as to medical causation are not dispositive of the conclusions to be drawn as to legal causation. Colas v. Marriott Food Services, 9 Conn. Workers’ Comp. Rev. Op. 86, 939 CRD-7-89-11 (February 26, 1991). The corrections sought were not merely facts that were admitted or undisputed and thus no alteration to the factual findings is necessary. Chesler v. Derby, 96 Conn. App. 207 (2006), cert. denied, 280 Conn. 909 (2006).

Finally, we consider the Motion to Submit Additional Evidence filed by the appellant. The evidence the respondent seeks to submit is a letter from Dr. Foster dated July 3, 2006. The respondent characterizes the letter as providing a clarification by Dr. Foster of his opinion regarding the June 1998 injury and its role in the claimant’s need for surgery. The respondent contends it did not solicit the letter and it was forwarded after the trial commissioner issued the May 2, 2006 Finding and Award. When considering Motions to Submit Additional Evidence our rulings are controlled in large measure by our Administrative Regulation, § 31-301-9 which provides in pertinent part:

If any party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review division, indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner . . . .

The respondent argues this evidence was not available during the proceedings before the trial commissioner. It seems to base its contention on the lack of availability merely on the date of the report. As we have noted on prior occasions if the evidence a party seeks to add is evidence that could have been obtained through due diligence prior to the completion of proceedings below then we are not compelled to grant the party’s motion. Fox-Gould v. Brooks Pharmacy, 4215 CRB-2-00-3 (May 23, 2001). We think a clarifying opinion by Dr. Foster could have been procured by the respondent while proceedings were pending before the trial commissioner. We therefore cannot say that the evidence it now seeks to submit was undiscoverable at the time of the proceedings before the trial commissioner. The Motion to Submit Additional Evidence is denied.

We therefore affirm the May 2, 2006 Finding and Award of the Commissioner acting for the Seventh District.

Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno concur.

Workers’ Compensation Commission

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