Vigneri v. Utility Industrial Company et al.

The claimant was represented by John F. Nagle, Esq., Leone, Throwe & Nagle, P.O. Box 8225, East Hartford, CT 06108-0625.

The respondent Continental Insurance Co., (C.L.A.S.) was represented by David Kelly, Esq., and Jeremy Booty, Esq., both of Montstream & May, P.O. Box 1087, Glastonbury, CT 06033. The respondent Peerless Insurance Company was represented by David Davis, Esq., and Jonathan Reik, both of McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066. The respondent Hartford Insurance Company was represented by Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

The Second Injury Fund was represented at the trial level by Joanne Lenda, Paralegal, formerly of the Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the May 29, 1992 Finding and Award and August 17, 1992 Supplemental Finding and Award of the Commissioner acting for the Second District was heard February 26, 1993 before a Compensation Review Board panel consisting of Commissioners John A. Arcudi, George A. Waldron and Donald H. Doyle, Jr.

OPINION

JOHN A. ARCUDI, COMMISSIONER. The appellant employers and insurers contest the commissioner’s ruling apportioning liability equally between the right shoulder injuries of November 30, 1983 and March, 1990. His 1983 employer was Utility Industrial Company insured by Continental Insurance Co. (C.L.A.S.). The 1990 employer was Lawrence Johnson Painting, Inc. insured by Peerless Insurance Company.

A Voluntary Agreement approved March 27, 1987 in the Second District awarded claimant benefits for a fifteen (15%) percent loss of use of the right master arm due to the 1983 injury with a maximum medical improvement date of January 21, 1986. The percentage found was a compromise between the parties. Claimant had undergone surgery March 6, 19841 and April 30, 1985, the latter surgery was to relieve impingement syndrome. In March, 1990 while painting a ceiling with a paint roller and paint which weighed in excess of nine pounds, claimant heard a popping sound in his right shoulder. He then treated with Dr. Edward Powers an orthopedic surgeon, and claimant’s treating physician continuously since the original November, 1983 injury.

A June, 1990 arthrogram revealed arthritic spurs in claimant’s right shoulder, bone spurs, the result of surgeries relating to the 1983 injury. On June 26, 1990 surgery was done for the removal of the bone spurs. During that surgery, Dr. Powers discovered a new rotator cuff tear at a different site from the 1983 injury. The doctor related that new rotator cuff tear injury to the “popping sound” event claimant experienced in March, 1990 while employed by Lawrence Johnson Painting, Inc.

In the May 29, 1992 Finding and Award and the August 17, 1992 Supplemental Finding and Award the commissioner ruled claimant was entitled to Sec. 31-307 temporary total disability benefits from June 6, 1990 to June 5, 1991 as a result of both the 1983 and the 1990 injuries. He also found that the permanent partial disability of the right arm had increased to twenty-five (25%) percent due to conditions arising from the 1983 occurrence and further that the 1990 injury had caused an additional ten (10%) percent permanent partial disability of the right arm. However, by the time of the January 22, 1992 formal hearing the arm had not reached maximum medical improvement so the 1990 carrier, Peerless, was not then ordered to pay any Sec. 31-308 permanent partial disability benefits. He also ordered medical bills for services after the 1990 injury to be shared equally by the 1983 carrier, C.L.A.S., and the 1990 carrier, Peerless, as he had also ordered the temporary total disability benefits to be shared equally. He found claimants’ disabilities to be due to these two specific events identifiable in time and place and not due to any repetitive trauma theory of causation.

Both C.L.A.S. and Peerless appealed. Peerless filed no brief before this tribunal, so the issues raised by its appeal are deemed abandoned. Practice Book Sec. 4065, Kwasnik v. Drico Corp., 6 Conn. Workers’ Comp. Rev. Op. 50, 549 CRD-1-87 (1988). C.L.A.S. argues against (1) the equal apportionment of liability and (2) the opening of the March 27, 1987 Voluntary Agreement which had set fifteen (15%) percent as the permanent partial disability of the right arm.

As to its first issue the respondent contends the commissioner made no specific finding that the 1983 occurrence was an equal contributing cause with the 1990 injury. Actually, relying on Dr. Powers’ testimony, paragraphs #12, #13, #15 and #17 of the Finding all refer to the fact that there were additional disabilities due to the 1983 injury persisting after the 1990 event. Also, paragraph #19 clearly states that the June 26, 1990 surgery (the Finding mistakenly refers to 1991) “was necessitated by bone spurs caused by the surgeries from the 1983 injury and from the injury at work in March, 1990.” Finally, paragraph A of the Award clearly ascribes the increased disabilities after March, 1990 both to the old and the new injury. These paragraphs of the Finding and Award thus provide a sufficient factual basis for the equal apportionment orders of paragraphs C and D. of the award.

For its second point on appeal, the respondent relies on a narrow reading of Sec. 31-315, C.G.S. claiming that statute requires a party to request modification before modification may be granted.

Sec. 31-315 provides:

The statute not only refers to a party’s request but also states “in accordance with the procedure for original determinations, whenever it appears to the compensation commission . . . that the incapacity . . . has increased.” In this instance there was notice and hearing; there was testimony by Dr. Cambridge who had been the respondent’s doctor before the 1987 voluntary agreement that incapacity had increased by 1991. There was also testimony by Dr. Powers that the incapacity was twenty-five (25%) percent rather than the fifteen (15%) percent of the 1987 agreement. Also claimants’ counsel made claim at the November 20, 1991 hearing that incapacity had increased, placing into evidence Dr. Powers deposition and letters to the employers claiming increased disability due to repetitive trauma. (TR, 11/20/91, p.3, 7). The fact that the commissioner did not adopt the repetitive trauma theory of causation did not preclude a finding that there was increased permanent partial disability based on the evidence presented.

We therefore affirm the commissioner’s Finding and Award and deny the appeal.

Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.

1 Although none of the parties sought to correct the commissioner’s finding as to the date of the first surgery following the November, 1983 injury, it appears that the actual date of that surgery was March 6, 1984 and not November 6, 1984. See October 2, 1991 Deposition of Dr. Edward Powers at 13. BACK TO TEXT