Hunt v. Mirror Polishing and Plating Company et al.

CASE NO. 1254 CRD-5-91-7

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

APRIL 21, 1993

JOHN HUNT

CLAIMANT-APPELLEE

v.

MIRROR POLISHING AND PLATING COMPANY

EMPLOYER

and

WINCHESTER FIRE INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

QUALITY CLEANERS, INC. d/b/a ON THE DOT CLEANERS

EMPLOYER

HOME INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

and

KMART DISCOUNT STORE

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

UNITEMPS, INC.

EMPLOYER

AETNA LIFE & CASUALTY CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by George Mendillo, Esq., 33 Church Street, Waterbury, CT 06702.

The respondents, Mirror Polishing and Plating Company and Winchester Fire Insurance Company were represented by C. Thomas Furniss, Esq., Furniss, Quinn and O’Brien, 248 Hudson Street, Hartford, CT 06106. Quality Cleaners and Home Insurance Company were represented by Scott Wilson Williams, Esq. and Carolyn Signorelli, Esq., Maher and Williams, P.O. Box 269, Bridgeport, CT 06601, K-Mart Discount Stores was represented by Christine Murphy, Esq McGann, Bartlett and Brown, 281 Hartford Turnpike, Vernon, CT 06066 and Unitemps, Inc. and Aetna were represented by Richard Stabnick, Esq., Pomeranz, Drayton and Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

This Petition for Review from the June 25, 1991 Finding and Award of the Commissioner for the Fifth District was heard May 29, 1992 before a Compensation Review Board panel consisting of the then Commissioner Chairman, John Arcudi and Commissioners Gerald Kolinsky and Michael S. Sherman.

OPINION

JOHN ARCUDI, COMMISSIONER. Because claimant experienced back injuries and disabilities after working for a number of successive employers, the respondent employer Uni-Temps and its insurance carrier, Aetna Life & Casualty, have appealed the commissioner’s ruling holding that employer liable for a portion of the benefits payable. Originally, claimant suffered a compensable back injury March 7, 1986 while employed by Mirror Polishing & Plating Co. He incurred a ten percent permanent partial disability of the back as a result after reaching maximum medical improvement April 2, 1987.

During the period October, 1986 to December, 1987 he worked for On-The-Dot Cleaners as a driver-deliverer. For about three weeks in December, 1987 he worked part time at K-Mart. From February to May of 1988 and in September and October of that year his employment was with the respondent Uni-Temps. The commissioner found that these two employments, On-The-Dot and Uni-Temps, had caused further back injury resulting in disc surgery March 6, 1989 and a ten percent increase in permanent partial disability of the back. On November 15, 1989 when maximum medical improvement from these new injuries had been reached, claimant thus had a twenty percent permanent partial impairment of the back.

The commissioner ruled that this incremental ten percent disability was attributable half to work with Uni-Temps and half to On-The-Dot, five percent to each. He also ruled that all three employers, Mirror Polishing, On-The-Dot and Uni-Temps, were equally liable for claimant’s medical expenses. In the last paragraph of his Finding he held, “The Respondents failed to attend scheduled hearings and delayed the resolution of this claim and shall pay an attorney’s fee of $1,000.00 and interest at 12% on all payments due hereunder. He dismissed the claim against K-Mart.

Uni-Temps contests all these rulings. Its basic argument is that the March 7, 1986 Mirror Polishing injury is the cause of all claimant’s back injury and permanent partial disability. They rely on some of Dr. Yarob Mushaweh’s testimony, Mushaweh Deposition, December 20, 1990, pp. 18-20, as the basis of their contentions. But the commissioner had other testimony from Dr. Mushaweh and also testimony from another orthopedist, Dr. Robert Ferraro on which to base his rulings. As an appellate tribunal we cannot overturn determinations based on the weight and credibility accorded the evidence, Fair v. People’s Savings Bank, 207 Conn. 535, 541 (1988); Rivera v. Guida’s Dairy, 167 Conn. 524 (1975).

Uni-Temps argues that it attended all hearings of which it received notice and therefore no penalty should be imposed against it. It is not clear from the record or from the commissioner’s ruling which respondents were lax in this regard. Therefore it is necessary to remand this matter for further proceedings to determine which respondent or respondents are liable to pay the interest and attorney’s fee.

We affirm in part and remand in part.

Commissioners Gerald Kolinsky and Michael S. Sherman concur.