CASE NO. 5310 CRB-4-07-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
DECEMBER 19, 2008
F. MONARCA MASONRY
TRAVELERS INDEMNITY COMPANY
EASTERN CASUALTY INSURANCE COMPANY
The claimant did not appear.
The respondents F. Monarca Masonry and Travelers Indemnity Company were represented by Timothy G. Zych, Esq., Law Offices of Cynthia M. Garraty, Crossroads Corporate Park, 6 Devine Street, North Haven, CT 06473. The respondents MRI Construction and Eastern Casualty Insurance Company were represented by David A. Kelly, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033.
This Petition for Review from the November 26, 2007 Finding and Award of the Commissioner acting for the Fourth District was heard on August 29, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Amado J. Vargas.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the November 26, 2007 Finding and Award of the Commissioner acting for the Fourth District. We find no error, and affirm the decision of the trial commissioner.
The following factual determinations are pertinent to our review. The claimant was diagnosed with an inguinal hernia as the result of a workplace injury which occurred on June 21, 2001 while the claimant was in the employ of MRI Construction. The claimant was treated surgically for this injury, which procedure involved the insertion of surgical mesh to reinforce the injured area. On September 20, 2004, while working for another employer, the claimant alleged that he sustained a second injury in a lifting incident during which he felt an internal pull and experienced a sudden sharp pain. The claimant reported the incident to his supervisor and thereafter sought medical attention at a local immediate health care center, from which he was referred to the emergency room at St. Vincent’s Hospital.
The claimant was admitted to the hospital and treated non-surgically. On September 23, 2004, he was discharged with a diagnosis of acute diverticulitis and a leftside inguinal mass with a suspected hernia. The claimant was referred to and subsequently presented at the hospital’s surgical clinic for treatment of the left inguinal mass. In a report dated September 30, 2004, the evaluating physician cited the claimant’s history of a hernia repair with mesh and relatively recent episodes of diverticulosis/diverticulitis, and recommended exploratory surgery with possible repair of a left inguinal hernia.
On October 15, 2004, the claimant underwent surgery at the hands of Vincent Donnelly, M.D., a surgeon at St. Vincent’s Medical Center. In his surgical report, Dr. Donnelly indicated that contrary to expectations, “[n]o indirect or direct hernias were appreciated during this exploration.” Respondent Travelers’ Exhibit 2, Oct. 15, 2004 Report of Dr. Donnelly. Rather, the doctor discovered the claimant had developed a “marked inflammatory response” from his previous hernia surgery and that a “significant amount” of the mesh used to repair the hernia had “migrated” out of the original surgical site. Id. At trial, Dr. Donnelly would testify that “[w]e just assumed he had a recurrent inguinal hernia based on the physical findings. In fact, [the claimant] was wrong and we were wrong because he didn’t have a hernia at that time at all.” Respondent Eastern Casualty’s Exhibit 6, January 9, 2007 Deposition of Dr. Donnelly, p. 18.
The claimant returned to St. Vincent’s on October 18, 2004 because of an infection, and continued to treat through November and December of 2004 for pain and drainage of the wound site. Dr. Donnelly recommended that the claimant have additional surgery to remove the remaining mesh, but the claimant did not want more surgery at that time. The claimant was seen again in February and May as his symptoms worsened, and finally agreed to the additional surgery, which Dr. Donnelly performed on June 10, 2005. In his operative report, Dr. Donnelly stated that the claimant was suffering from “an infected left inguinal mesh secondary to a perforation of the colon.” Respondent Travelers’ Exhibit 4, June 10, 2005 Report of Dr. Donnelly. The doctor opined that the perforation had been caused by the mesh plug which had been inserted during the claimant’s hernia repair surgery in 2001. According to Dr. Donnelly, the perforation had then “caused leakage from the bowel that inflamed the colon and was the reason for the ongoing infection, pain and drainage issues.” Id. Following the June 10, 2005 surgery, the claimant’s wound healed and he recovered with no further complications.
Based on the foregoing factual findings, the trial commissioner concluded “that the Claimant did not sustain a new inguinal hernia as a result of the September 20, 2004 lifting incident.” Findings, ¶ C. The trial commissioner found Dr. Donnelly’s opinion credible as to the cause of the claimant’s delayed healing, which the doctor attributed to “the presence of residual infected mesh which [the doctor] was not able to completely remove at the October, 2004 surgical procedure.” Findings, ¶ I, Respondent Travelers’ Exhibit 7. Concluding that “the Claimant’s September 20, 2004 alleged date of injury was not the cause of the Claimant’s subsequent need for the October 15, 2004 and June 10, 2005 surgeries,” Findings, ¶ L, the trial commissioner attributed the claimant’s “fistula, colon infection, and inguinal mass, and subsequent need for hospitalization and surgeries” to the claimant’s hernia surgery of 2001 and, specifically, the insertion of the mesh plug. Findings, ¶ M.
As a result of these findings, the trial commissioner ordered respondent MRI Construction, through its carrier, Eastern Casualty, to reimburse respondent F. Monarca Masonry, through its carrier, Travelers, all sums expended in medical and indemnity benefits stemming from the claimant’s surgeries of October 15, 2004 and June 10, 2005. Respondents MRI Construction and Eastern Casualty (“appellants”) filed a Motion to Correct, which was denied in its entirety, and this appeal followed.
The appellants contend that the trial commissioner erred in concluding that MRI and Eastern Casualty bore responsibility for the claimant’s medical treatment subsequent to the incident of September 20, 2004 “because the undisputed medical evidence in the record demonstrates that the Claimant sustained an aggravation,” Appellants’ Brief, p. 3, which pursuant to Connecticut case law “constitutes a separate and distinct compensable injury.” Id., p. 4. The appellants also argue that the Finding and Award issued on November 26, 2007 “reflects a misinterpretation of Dr. Donnelly’s testimony” regarding the relation between the mesh plug inserted during the claimant’s original surgery of June 2001 and the development of the fistula in the claimant’s colon. Id., p. 10. Having reviewed the evidentiary record in this matter, we do not find either of the appellants’ arguments persuasive.
We begin with the appellants’ assertion that the trial commissioner committed reversible error in failing to find that the claimant sustained an aggravation of his original injury, and therefore a legally cognizable “separate and identifiable” injury. Kelly v. Dunkin’ Donuts, 4621 CRB-4-03-2 (April 5, 2004). In essence, the gravamen of the instant appeal is the tension between § 31-307b C.G.S.,1 which governs recurrent injuries, and § 31-349(a) C.G.S.,2 which determines compensation awards and liability for subsequent injuries which result in a separate and distinct second disability. With regard to the former, liability is generally assessed against the employer at the time of the initial injury; with regard to the latter, liability generally lies with the employer at the time of the second injury. In the instant matter, the trial commissioner has concluded that liability for the claimant’s surgeries of October 2004 and June 2005 and related medical treatment falls on the appellants, who had been responsible for the claimant’s workers’ compensation benefits arising from the initial hernia injury in June 2001.
On appeal, the appellants have placed great emphasis on the portion of Dr. Donnelly’s testimony in which he indicated the claimant’s lifting and stretching prior to the incident of September 2004 “aggravated” the claimant’s condition.3 We do concede that the word “aggravation” has become a term of art within the workers’ compensation lexicon. In Epps v. Beiersdorf, Inc., 41 Conn. App. 430 (1996), the Appellate Court found in favor of the claimant, who had appealed the trial commissioner’s determination (and this board’s affirmance) that the claimant failed to prove his continued employment as a chemical compounder was an aggravating factor that had caused his preexisting respiratory condition to worsen. In reaching its decision, the court relied on a medical report from Garland Jackson, M.D., which diagnosed the claimant with “industrial bronchitis that ‘is more probably than not a direct result of [his] employment at Beiersdorf, Inc.’ ” and another from Thomas Godar, M.D., stating that “the plaintiff’s ‘workplace exposure was not the cause of his condition but was an aggravating factor on his already existing hyper-reactive airways, upon which was superimposed [the plaintiff’s] 1987 viral infection, inducing clinical asthma.’ ” Id., at 432.
On the basis of these two reports, the court found “that the record contains no evidence on which the commissioner could have reasonably relied in determining that the plaintiff’s exposure to chemicals while employed as a compounder did not aggravate his preexisting respiratory condition.” Id., at 434. Rather, the court determined that “our review of the record reveals only facts that support a finding that the plaintiff’s respiratory condition was aggravated by his constant exposure to chemicals.” Id. In light of the “uncontradicted” medical testimony in the record, and Dr. Godar’s actual use of the term “aggravated,” the court concluded that “the plaintiff established that his condition was, indeed, aggravated by his employment as a chemical compounder within the meaning and spirit of § 31-275(1)(D), and that the commissioner’s contrary finding is not supported by the subordinate facts.” Epps, supra, at 435.4
However, this board has “long held that the question of whether an injury is a recurrence or a new injury is a factual determination for the trial commissioner.” Hanzlik v. James Freccia Auto Body, 15 Conn. Workers’ Comp. Rev. Op. 2, 5, 1984 CRB-7-94-3 (November 1, 1995), aff’d, 43 Conn. App. 908 (1996)(per curiam). “The factual issue to be resolved is one of proximate cause. If the claimant’s later symptoms occurred as an inevitable progression of the events set in motion by the earlier injury without any new intervening proximate cause, then the claimant’s condition is a recurrence of the prior compensable injury. If, on the other hand, an intervening event, such as an accidental injury definitely located as to the time and the place, has played a causal role in the claimant’s subsequent incapacity, then a new injury, whether by aggravation of the prior injury or otherwise, has occurred.” Mellor v. Pleasure Valley Mobile Homes, 11 Conn. Workers’ Comp. Rev. Op. 270, 271, 1393 CRB-2-92-3 (November 18, 1993) (internal citations omitted). Further, “[w]e are obliged on review to give significant deference to the decisions of trial commissioners on whether or not a particular incident legally amounts to a substantial cause of a physical injury.” Belanger v. J & G Belanger Concrete Construction, 4684 CRB-6-03-6 (July 28, 2004), citing Pothier v. StanleyBostitch/The Bostitch Company, 3411 CRB-3-96-8 (January 21, 1998).
As such, the pertinent inquiry in the instant matter is to discover whether the evidentiary record supports the inference that the claimant’s condition which led to the surgeries of October 2004 and June 2005 represented a “progression” from the initial hernia injury of June 2001 or, rather, whether the workplace incident of September 2004 constituted a “new identifiable work related occurrence,” Colas v. Marriott Food Services, 9 Conn. Workers’ Comp. Rev. Op. 86, 88, 939 CRD-7-89-11 (February 26, 1991), which then resulted in the need for the surgeries. In other words, “it is not a mere increase in pain or symptoms that triggers a finding of a new injury or aggravation within the meaning of the Workers’ Compensation Act. Some finding that subsequent work exposures have contributed to a claimant’s condition must also be present.” Orlando v. Reliable Construction Services et. al., 4791 CRB-8-04-3 (April 6, 2005).
Our review of the evidentiary submissions in the record leads us to affirm the findings of the trial commissioner. In Dr. Donnelly’s deposition of January 9, 2007, the doctor testified as follows with regard to the claimant’s initial encounter with the surgical clinic. “We felt that he had an incarcerated recurrent hernia and arranged surgery for him, and took him to surgery 10/15 and explored the groin but did not find a hernia. Found extensive scar tissue and inflammation surrounding the structures in the groin .” Respondent Eastern Casualty’s Exhibit 6, January 9, 2007 Deposition of Dr. Donnelly p. 6. In describing the surgery he performed on October 15, 2004, Dr. Donnelly stated that he “grabbed a piece of mesh and pulled that and some of it came out. We removed quite a bit of mesh at the first operation we did which obviously had been put in at his first operation.” Id., p. 7. When queried under direct examination as to whether the surgery of October 2004 was in the same place as the prior surgical site, Dr. Donnelly replied in the affirmative and stated that he had removed as much mesh as he could, but it had been difficult because “[i]t was all like concrete. It was all scar tissue with mesh impregnated into it.” Id., p. 12. Dr. Donnelly also stated that the mass “looked like it had been there a long time because there was scar tissue surrounding mesh up underneath the old previous groin incision or from the previous hernia.” Id., p. 28.
Dr. Donnelly further testified that although he hadn’t reviewed the records from the original hernia repair, he surmised that the surgeons had,
used what’s called a plug and a patch. It’s a fairly modern way to repair hernia. There’s a mesh tied into a thing that looks like a badminton shuttlecock and you push that into the hernia to keep everything back beyond the fascia, which is the tissue with the hole in it, and then you put a piece of mesh on top of that and sew it in. And I think what we were seeing was the superficial mesh but not the plug that was in. But he had an awful lot of mesh.
Id., pp. 12-13.
Dr. Donnelly testified that the claimant’s colon was stuck to the mesh that had been used in the hernia repair, id., p.10, and commented that he thought the “infection or inflammation of that probably was the inciting factor that caused the acute pain and maybe increased the swelling because infection is one of the cardinal symptoms of infection is swelling.” [sic] Id., pp. 33-34.
Dr. Donnelly also testified that following the procedure of October 15, 2004, he tried to persuade the claimant to have additional exploratory surgery “to try to get the rest of the mesh out because once the mesh is infected, you have to remove it or it will just continue to drain.” Id., p. 7. Unfortunately, the claimant did not choose to follow the doctor’s recommendation, and by the time he presented to Dr. Donnelly on May 18, 2005, his condition had deteriorated to the point where the doctor felt that surgical debridement and mesh removal were warranted. Id., p. 8. The surgery was initially scheduled for early June 2005. However, when the claimant updated Dr. Donnelly regarding his symptoms prior to the surgery, the doctor cancelled the procedure because he realized the claimant had developed a fistula and he did not want to proceed without first ascertaining the precise location of the fistula. Id., p. 9. When Dr. Donnelly did ultimately perform the surgery on June 10, 2005, he removed the remaining mesh, and the claimant healed quickly without further difficulties. Id., p. 11.
The foregoing passages from Dr. Donnelly’s deposition illustrate quite clearly that the doctor believed the surgeries he was required to perform on the claimant in October 2004 and June 2005 were directly attributable to complications arising from the claimant’s hernia surgery of 2001. The doctor’s medical opinion in this regard is also borne out by the operative reports generated by these procedures. For instance, the Procedure Report of October 15, 2004 states,
[a]fter the blunt and sharp dissection of the subcutaneous tissue, a marked inflammatory response was appreciated from the patient’s previous surgery. After careful dissection of some very hard scar tissue, the cord structures were identified and isolated from the surrounding tissue which was largely excised and appeared to include a significant amount of mesh . It was noted that some mesh was also found anterior to the internal oblique.
Respondent Travelers’ Exhibit 2, October 15, 2004 Report of Dr. Donnelly.
The operative note of June 10, 2005 likewise indicates a postoperative diagnosis of “[i]nfected left inguinal mesh” and a “[c]olocutaneous fistula” and states that the operation consisted of “[d]ebridement of left groin and removal of left groin mesh.” Respondent Travelers’ Exhibit 4, June 10, 2005 Report of Dr. Donnelly. The report goes on to state that “the sigmoid colon was noted to have a large mass . At this time, attention was placed on the mass which had been adherent to the inguinal region, which was taken down using blunt and sharp dissection. The mesh plug was noted to be visible at this time.” Id. Finally, the report indicates that the “obvious” wound in the claimant’s left groin was the site of a prior hernia repair which had been done at another hospital. Id.
In addition to the foregoing medical reports, the evidentiary record also contains correspondence dated July 15, 2005, from Karla Lee, the adjuster at St. Paul Fire and Marine Insurance Company, to Dr. Donnelly in which Ms. Lee queried whether his diagnosis was related to the claimant’s hernia repair of 2001. Respondent Travelers’ Exhibit 6. In his answering correspondence of August 18, 2005, Dr. Donnelly replied, “[o]bviously the mesh was placed at the time of the 2001 hernia repair so that is the relationship to the infected mesh.” Respondent Travelers’ Exhibit 7. Ms. Lee also asked whether the surgery of October 2004 was directly related to the 2001 surgery and, “[i]f so, how did this come about after four years?” Respondent Travelers’ Exhibit 6. Dr. Donnelly answered, “[y]es, because the mesh was placed at the 2001 hernia,” Respondent Travelers’ Exhibit 7, and went on to elaborate that “[t]he mesh is an inflammatory focus in the abdomen or in fact in other areas where it is placed and can become secondarily infected. This is one of the reasons that some people do not want to use mesh in hernia repairs.” Id. Dr. Donnelly also confirmed that the reason the claimant did not heal after the surgery of October 2004 was the continued presence of the surgical mesh. Id.
Finally, even the claimant’s own testimony at his deposition of December 5, 2006 supports the trier’s findings, in that the claimant distinguished between the symptoms he felt when the initial hernia injury occurred and those he experienced after the lifting incident. With regard to the former, the claimant testified “that same kind of deal happened where it was an awkward kind of reaching over to put it this way and put it that way and I felt that. Basically, the same kind of pull feeling and actually that day it dropped me to the ground.” Respondent Eastern Casualty’s Exhibit 5, December 5, 2006 Deposition of Claimant, pp. 18-19. The claimant stated that he could not recall whether he felt a bulge after the hernia injury, but “definitely” felt a bulge after the incident of September 2004.5 Id. Interestingly, the claimant also remarked that he never felt the same after the initial hernia repair.6
In summation, we find that the overwhelming weight of the evidence presented supports the trier’s conclusion that the claimant’s need for the surgeries of October 2004 and June 2005 was not causally connected to the workplace incident which occurred in September 2004 but, rather, arose out of complications stemming from the original hernia repair in June 2001. While the appellants are correct in pointing out that Dr. Donnelly did use the word “aggravated” in his testimony, that point is not dispositive of our inquiry. “Whether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony.” Struckman v. Burns, 205 Conn. 542, 555 (1987). Given that we find this matter easily distinguishable from Epps in light of the evidence presented, we conclude that the trial commissioner was well within her discretion in formulating her findings relative to the issue of whether the claimant sustained an aggravation of his previous hernia injury. “If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings.” McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007) (internal citations omitted).
The appellants also contend that the trial commissioner has “misinterpreted” Dr. Donnelly’s testimony with regard to the relation between the mesh plug used to repair the claimant’s original hernia and the development of the fistula. Appellants’ Brief, p. 10. In support of this argument, they point to Dr. Donnelly’s testimony to the effect that, “I don’t think, at least my opinion would be, that the mesh plug caused the fistula from the colon into the mesh in the groin .” Respondent Eastern Casualty’s Exhibit 6, January 9, 2007 Deposition of Dr. Donnelly, p. 23.
Our review of the evidentiary record leads us to conclude that it is in fact the appellants who have misinterpreted Dr. Donnelly’s testimony on this point. A contextual reading of Dr. Donnelly’s deposition indicates that a discussion of this issue occurred because Dr. Donnelly testified that he disagreed with the findings of the pathologist, who had attributed the claimant’s fistula to a ruptured diverticulum. Dr. Donnelly’s actual testimony is as follows:
So what we found was a fistula between the colon and the mesh plug. Once we took the colon off of the mesh plug, of course, there was a hole in the colon. Now, our pathologist said that’s a ruptured diverticulum. I don’t know whether it was or not. It could have been just a colon stuck to the mesh plug because we do know that mesh can cause fistulas in the bowel. He did have diverticula above and below that.
So she called it a ruptured diverticulitis because that would be the common thing that you would get with a piece of bowel with diverticula with a hole in it. Unfortunately, she didn’t know about the mesh plug. I don’t think, at least my opinion would be, that the mesh plug caused the fistula from the colon into the mesh in the groin .
Id., p. 23.
While we must admit that Dr. Donnelly’s testimony did become a bit disjointed at this juncture, we conclude that the trial commissioner reasonably inferred, given the balance of the doctor’s testimony, that the doctor started to say that he disagreed with the pathologist’s findings and then continued on in the same sentence to restate the same opinion he had already articulated several times before; namely, the mesh plug from the original hernia repair was responsible for the development of the fistula. Having reviewed the entirety of Dr. Donnelly’s testimony in this portion of the deposition, we find the trial commissioner’s inferences with regard to the relationship between the mesh plug and the claimant’s fistula permissible and are not persuaded by the appellants’ attempts to take Dr. Donnelly’s remarks out of context.
We appreciate that several issues in this matter were not completely resolved by the evidence presented. For instance, Dr. Donnelly could not explain what may have accounted for the “popping” sensation experienced by the claimant at the time of the September 2004 injury.7 Nor could the doctor explain the claimant’s insistence that he did not notice he had a bulge in his groin until after the lifting incident of September 2004;8 rather, the doctor theorized that the claimant had probably had the bulge for some time and simply didn’t realize it.9 In fact, Dr. Donnelly persisted in that explanation, even when pressed by counsel.10 Finally, the doctor’s testimony regarding the genesis of the claimant’s infection was vague and inconclusive, and we affirm the trial commissioner’s decision to disregard the doctor’s testimony on this point.11 However, the fact that these issues were not resolved to the appellants’ satisfaction does not significantly detract from the overall tenor of Dr. Donnelly’s testimony or the thrust of the operative reports in terms of supporting the trial commissioner’s determinations regarding the relationship between the lifting incident of September 20, 2004 and the claimant’s surgeries in October 2004 and June 2005.
As mentioned previously herein, the appellants filed a Motion to Correct, which was denied in its entirety.12 Given that our review of this motion suggests that the appellants were primarily seeking to have the trial commissioner reformulate her findings to comport with the appellants’ contentions that the claimant’s lifting incident of September 2004 resulted in a new injury, separate and distinct from the injury of June 2001, we find no error on the part of the trial commissioner in denying the appellants’ motion. As this board has previously observed, when “a Motion to Correct involves requested factual findings which were disputed by the parties, which involved the credibility of the evidence, or which would not affect the outcome of the case, we would not find any error in the denial of such a Motion to Correct.” Robare v. Robert Baker Companies, 4328 CRB-1-00-12 (January 2, 2002).
Having found no error, the November 26, 2007 Finding and Award of the Commissioner acting for the Fourth District is hereby affirmed.
Commissioners Ernie R. Walker and Amado J. Vargas concur in this opinion.
1 Sec. 31-307b C.G.S. (Rev. to 2003) [Benefits after relapse from recovery. Recurrent injuries.] states, in pertinent part, that [i]f any employee who receives compensation under section 31-307 returns to work after recovery from his injury and subsequently suffers total or partial incapacity caused by a relapse from the recovery from, or a recurrence of, the injury, the employee shall be paid a weekly compensation equal to seventy five per cent of his average weekly earnings as of the date of the original injury or at the time of his relapse or at the time of the recurrence of the injury, whichever is the greater sum, calculated pursuant to section 31-310 …. BACK TO TEXT
2 Sec. 31-349(a) C.G.S. (Rev. to 2003) [Compensation for second disability. Payment of insurance coverage. Second Injury Fund closed July 1, 1995, to new claims. Procedure.] states, in pertinent part, that [t]he fact that an employee has suffered a previous disability, shall not preclude him from compensation for a second injury, nor preclude compensation for death resulting from the second injury. If an employee having a previous disability 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, he shall receive compensation for (1) the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability, and (2) necessary medical care, as provided in this chapter, notwithstanding the fact that part of the disability was due to a previous disability. BACK TO TEXT
3 Q: So is it fair to state that the – this reaching and straining and lifting the cinderblock, that would have hastened the onset of him discovering this condition? Or how would you characterize it?
A: I would think that, yeah.
Q: Did it aggravate his condition, this lifting and stretching?
Respondent Eastern Casualty’s Exhibit 6, January 9, 2007 Deposition of Dr. Donnelly, pp. 32-33. BACK TO TEXT
4 In referring to § 31-275(1)(D) C.G.S., the Epps court apparently relied upon the 1993 revisions to what had formerly been codified as § 31 275(12)(D) C.G.S. Section 31-275(1)(D) C.G.S. (Rev. to 1993) states, “for aggravation of a preexisting disease, compensation shall be allowed only for that proportion of the disability or death due to the aggravation of the preexisting disease as may be reasonably attributed to the injury upon which the claim is based.” BACK TO TEXT
5 Q: Okay. Now, with this second hernia in Fairfield, if I understand your testimony, you clearly could perceive and feel the bulge?
A: Oh, I saw that definitely.
Q: You don’t remember the first time, but you definitely remember the second time?
A: Uh huh. (Affirmative).
Respondent Eastern Casualty’s Exhibit 5, December 5, 2006 Deposition of Claimant, p. 22. BACK TO TEXT
6 The claimant testified that, “[i]t was never the same. Do you know what I mean? I was never the same, really. Basically, just uncomfortable.” Id. BACK TO TEXT
7 Q: Doctor, what was that pop he heard or felt?
A: I don’t know. As I say, if he had a groin pull or a tearing of the muscle, he could have had it from that. But you have to remember that we actually were in the groin looking for a hernia and he didn’t have one.
Respondent Eastern Casualty’s Exhibit 6, January 9, 2007 Deposition of Dr. Donnelly, p. 20. BACK TO TEXT
8 Q: And I take it that you were reaching to grab these blocks and move them and you felt – you heard something and you felt something?
Q: Okay. And then you went to the restroom and found a bulge?
Q: Was that bulge there before you went to work that morning?
Respondent Eastern Casualty’s Exhibit 5, December 5, 2006 Deposition of Claimant, pp. 13-14. BACK TO TEXT
9 The doctor testified that “[y]ou always think that when you feel it, you think it’s there for the first time. I rather think he had a mass there for some time and noticed it when he had the pain perhaps from the lifting.”
Respondent Eastern Casualty’s Exhibit 6, January 9, 2007 Deposition of Dr. Donnelly, p. 19. BACK TO TEXT
10 Q: I guess what I’m really getting at is that, though you are certain about the hernia, he did start the day without a bulge and finished the day with this bulge and he did appreciate this popping sensation.
With all the information you have and looking at a chart and whatnot, can you give me a diagnosis of what occurred to him that day?
A: I don’t know. My feeling would be that probably he had the bulge for a period of time and, as he strained, lifted, pulled, whatever he did, he got pain in the groin and, because of that, felt the bulge and the tenderness there ….
Q: I think Mr. Marroquin was pretty clear he didn’t have it in the morning and he had it in the afternoon.
A: How many times do you feel your groin in the morning before you go to work?
Id., pp. 29-30. BACK TO TEXT
11 Q: So you believe that an infection arose as a result of the September 20th incident?
A: Yes. I can’t really explain how but, yes, I think it must have.
Id., p. 34. BACK TO TEXT
12 Sec. 31-301-4 C.G.S. (Rev. to 2003)[Correction of Finding] states, in pertinent part, that “[i]f the appellant desires to have the finding of the commissioner corrected he must, within two weeks after such finding has been filed, unless the time is extended for cause by the commissioner, file with the commissioner his motion for the correction of the finding and with it such portions of the evidence as he deems relevant and material to the corrections asked for …. BACK TO TEXT