St. Germaine v. Consolidated Precast, Inc. et al.

The claimant was represented by Robert J. Boland, Esq., 178 East Center Street, Manchester, CT 06040

The respondents, Consolidated Precast, Inc. and Fireman’s Fund Insurance, were represented by Anne Marie D’Attelo, Esq., Law Offices of Jack V. Genovese, 29 South Main Street, West Hartford, CT 06107.

The respondents, Sumner Chapman and Aetna Insurance Company were represented by Richard T. Stabnick, Esq. and Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

This Petition for Review from the August 28, 1991 Finding and Award of the Commissioner for the Fifth District was heard June 26, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Gerald Kolinsky and James J. Metro.

OPINION

JESSE FRANKL, CHAIRMAN. The respondents have petitioned for review from the August 28, 1991 Finding and Award of the Commissioner for the Fifth District. In that Finding and Award the trial commissioner held that the respondents Sumner Chapman and Aetna were liable for; the claimant’s temporary total benefits for the period May 23, 1990 to November 7, 1990, medical expenses incurred during that period for his back condition and four percent permanent partial disability (20.8 weeks) for the loss of use of his back.

The pertinent facts are as follows. The claimant originally sustained an injury to his back while in the employ of the respondent Consolidated Precast. That injury occurred October 3, 1986 and involved the L5, S1 disc of the back. The claimant, by a Voluntary Agreement received a ten percent permanent partial disability with maximum medical improvement stated as August 10, 1987.

The claimant returned to his job and worked there with some limitations until November, 1987 when colder weather and continuing back and leg pain made it impossible for him to continue. The claimant then worked for about six months as a cafeteria manager and then several months for a stationery/office supply business. The trial commissioner found that the work as cafeteria manager did not involve heavy work nor did the position with the stationery/office supplier require unassisted heavy lifting.

In August, 1989 the claimant was employed by the respondent Sumner Chapman as a maintenance worker in a 150-unit condominium complex. Claimant’s duties included the moving of major appliances and removal and replacement of rugs in order to facilitate the cleaning and painting of the premises. While the rugs weighed up to 300 pounds, the claimant was assisted in the task by two helpers, and for both tasks the claimant used dollies.

The claimant underwent surgery in May, 1987 and was never completely pain free. The trial commissioner found that the claimant was totally disabled from May 23, 1990 to November 7, 1990 due to the physical stresses of claimant’s job with the respondent Sumner Chapman. Thereafter, the trial commissioner also found that the claimant’s permanent partial disability had increased from ten to twenty percent, and that six percent of the additional ten percent permanent partial disability was due to the natural progression of the disc disease resulting from the original injury.

The respondents, Sumner Chapman and Aetna Insurance, took the instant appeal and present the following issues for review; (1) whether the trial commissioner erred in finding that the claimant’s employment with Sumner Chapman was the sole cause of his total disability between May 23, 1990 and November 7, 1990, (2) whether the trial commissioner erred in finding the respondent Sumner Chapman liable for four percent of the claimant’s additional ten percent permanent partial disability rather than only liable for two percent of the additional permanent partial disability.

As to the first issue raised on appeal, whether the claimant’s period of total disability between May and November, 1990 was causally related to his employment with Sumner Chapman, the respondents essentially ask this panel to decide whether the trial commissioner erred in not finding that the period of disability between May and November, 1990 was due to a relapse or recurrence of the claimant’s October, 1986 injury. The determination requested on review by the respondents is a factual determination. Janoy v. General Electric Co., 4 Conn. Workers’ Comp. Rev. Op. 44, 491 CRD-4-86 (1987).

Likewise, the second issue raised on appeal, whether the trial commissioner erred in concluding that the respondents Sumner Chapman were liable for four percent of the claimant’s additional ten percent permanent partial disability to his back, is also a factual determination. As such neither of these conclusions drawn by the trial commissioner will be disturbed unless contrary to law, without evidence or based on unreasonable or impermissable factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

Both conclusions attacked by the respondents, Aetna, on appeal are supported in the evidence before the trial commissioner. Particularly, we refer to the May 2, 1991 Deposition of Dr. Richard H. Dyer, Jr. at 34-35, 53-55, 57-67. See also, Claimant’s Exhibit 6, and Formal Hearing Transcript of November 11, 1990 at 28-29, 46, and 67. While we might have assessed the facts and expert witness’s opinion so as to reach a different conclusion had we been the trial commissioner, we cannot say that the trial commissioner’s conclusion was so unreasonable as to justify judicial interference. Bailey v. Mitchell, 113 Conn. 721, 725 (1931) cf. Colas v. Marriott Food Services, 9 Conn. Workers’ Comp. Rev. Op. 86, 939 CRD-7-89-11(1991).

Finally, we note that approximately two months after oral argument claimant’s counsel filed a Motion for Permission to Withdraw. As that motion was filed after oral argument we need not consider the motion at this time, but will consider it in a separate ruling.

Additionally, pursuant to Sec. 31-301c(b) we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of this appeal.

We therefore affirm the August 28, 1991 Finding and Award of the trial commissioner.