Perry v. Union Lyceum Taxi Company et al.

The claimant was represented by Stephen R. Bellis, Esq., The Pellegrino Law Firm, P.C., 475 Whitney Ave., P. O. Box 1835, New Haven, CT 06508-1835.

The respondents Travelers Insurance Co. and Union Lyceum Taxi Company were represented by Janine M. D’Angelo, Esq., Law Offices of Christine L. Harrigan, P.O. Box 9802, New Haven, CT 06536-0802.

The respondent Tri-State Newspaper, Inc. was represented by Cori-Lynn S. Webber, Esq., Law Offices of Grant H. Miller, Jr., 29 South Main St., Suite 310N, West Hartford, CT 06107-2445.

This Petition for Review from the April 5, 1993 Finding and Award of the Commissioner acting for the Fourth District was heard April 8, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have filed this petition for review from the Fourth District Commissioner’s April 5, 1993 Finding and Award. The commissioner found that the claimant originally injured his lower back on March 24, 1989 while working for the respondent Union Lyceum. A voluntary agreement was approved on August 27, 1991 acknowledging a 10 percent permanent partial disability of the claimant’s back. In March of 1991, the claimant took a job as a driver for Tri-State Newspaper. Within three months, he was again seeing a doctor about his lower back. The doctor reported that it was his opinion “with reasonable medical probability” that the claimant suffered a recurrence of his prior injury, although he also stated that the claimant’s new job had something to do with the injury. The commissioner concluded that the claimant’s back problems were a recurrence of his original injury within the meaning of General Statutes § 31-307b and ordered Union Lyceum’s insurer to take responsibility for compensating the claimant. The respondents appealed from that decision, arguing that it was not supported by the evidence and resulted from an incorrect application of the law. We disagree.

The appellants attempt to distinguish medical causation from legal causation by arguing that an individual may incur a new injury for a subsequent employer under the Workers’ Compensation Act despite the presence of a pre-existing medical condition. They contend that the commissioner’s findings that the claimant lifted bundles of newspapers into his automobile every morning, requiring him to bend and twist, and that the claimant’s job required prolonged periods of driving, require as a matter of law the conclusion that the claimant sustained a new injury under what is now General Statutes § 31-275 (16).

The appellants themselves acknowledge, however, that whether the claimant suffered a new compensable back injury or a recurrence of his prior injury is a factual determination for the trial commissioner. Glynn v. Terry Corporation, 8 Conn. Workers’ Comp. Rev. Op. 87, 88, 806 CRD-2-89-1 (1990). Contrary to the appellants’ argument, circumstances such as those in the present case could arguably support a finding of either a new injury or a recurrence of a prior injury. It is for the commissioner, and not this Board, to decide which is more appropriate from the facts based on his evaluation of the evidence. “The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). We will not retry the facts, nor will we review conclusions that depend on the weight of the evidence or credibility of the witnesses. Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979).

Here, the commissioner had enough evidence to find that the claimant had suffered a recurrence of his prior injury as opposed to a new injury. The treating physician stated that he believed the claimant’s second injury was causally related to his prior injury and not from a distinct new injury. Also, there was testimony that the claimant’s back had continued to bother him throughout the period between his two compensable back injuries. From the record, we cannot say that the commissioner drew an unreasonable inference from the facts found. Likewise, the commissioner did not incorrectly apply the law in holding that the claimant suffered a recurrence of his prior injury under § 31-307b.