Cale v. Correia Excavators, Inc. et al.

CASE NO. 1662 CRB-1-93-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 8, 1994

OSCAR CALE

CLAIMANT-APPELLANT

v.

CORREIA EXCAVATORS, INC.

EMPLOYER

and

AETNA LIFE & CASUALTY COMPANY

INSURER

RESPONDENTS-APPELLEES

and

COVEN CONSTRUCTION COMPANY

EMPLOYER

and

ST. PAUL INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Carlos M. Santos, Esq., Polinsky and Santos, 890 West Boulevard, Hartford, CT 06105-4139.

The respondents Correia Excavators, Inc. and its insurer Aetna Life & Casualty were represented by Margaret E. Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd, Glastonbury, CT 06033-4412.

The respondent Coven Construction Co. and its insurer St. Paul Insurance Company were represented by David R. Bull, Esq., Chabot & Breen, P.O. Box 5035, Hamden, CT 06518, who neither filed a brief nor appeared at oral argument.

This Petition for Review from the February 25, 1993 Finding and Award of the Commissioner At Large acting for the First District was heard March 11, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Nancy A. Brouillet.

OPINION

JESSE FRANKL, CHAIRMAN. The claimant has petitioned for review from the February 25, 1993 Finding and Award of the Commissioner at Large acting for the First District. The claimant challenges that portion of the trial commissioner’s Finding and Award which determined that the claimant sustained an intervening non-work-related injury in August 1990 and which therefore dismissed his claim that his subsequent condition was caused by a prior (March 27, 1990) compensable injury. We affirm the trial commissioner.

There was conflicting evidence presented to the trial commissioner. The commissioner determined that the claimant performed physical labor, after his light work release from the March 27, 1990 compensable injury, in the nature of assisting in the installation of a cement patio, after which the claimant developed right leg and right foot pain. Based on this finding of an intervening non-work-related injury and the opinion of Dr. Melville Roberts that the claimant’s “recurrent” disc injury was probably related to those events; see Respondent’s Exhibit 1 (Deposition of Dr. Roberts) pp. 10-11, which was specifically referenced in paragraph G of the Finding and Award; the commissioner concluded that the claimant’s condition thereafter did not result from the prior compensable injury.

Whether the claimant suffered a new injury rather than a recurrence of a previous compensable injury is a factual determination for the trial commissioner to make. Mellor v. Pleasure Valley Mobile Homes, 11 Conn. Workers’ Comp. Rev. Op. 270, 1393 CRB-2-92-3 (1993); Colas v. Marriot Food Services, 9 Conn. Workers’ Comp. Rev. Op. 86, 939 CRD-7-89-11 (1991). The factual issue to be resolved is one of proximate cause. A new injury has occurred where an intervening event, such as an accidental injury definitely located as to time and place, has played a causal role in the claimant’s subsequent incapacity. Mellor v. Pleasure Valley Mobile Homes, supra; D’Agostino v. City of Waterbury, 10 Conn. Workers’ Comp. Rev. Op. 4, 942 CRD-5-89-11 (1991).

As the conclusion reached from the facts found did not result from incorrect applications of law or from inferences illegally or unreasonably drawn from those facts, the commissioner’s conclusion must stand. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

We, therefore, affirm the trial commissioner and deny the appeal.

Commissioners George A. Waldron and Nancy A. Brouillet concur.