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CASE NO. 1984 CRB-7-94-3
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 1, 1995
JAMES FRECCIA AUTO BODY
MARYLAND CASUALTY INS. CO.
CASUALTY RECIPROCAL EXCHANGE
SECOND INJURY FUND
The claimant was represented by Christopher R. Bello, Esq., Bello, Lapine & Cassone, 600 Summer St., Stamford, CT 06901.
The respondents James Freccia Auto Body and Maryland Casualty Insurance Co. were represented by James T. Baldwin, Esq., Cotter, Cotter & Sohon, P. C., 500 Boston Post Road, Milford, CT 06460.
The respondents James Freccia Auto Body and Casualty Reciprocal Exchange were represented by James M. Hughes, Esq., McNamara & Kenney, Brewster Station, P. O. Box 8187, Bridgeport, CT 06605.
The respondent Second Injury Fund was not represented at oral argument. At trial, it was represented by Yinxia Long, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the February 25, 1994 Finding and Award of the Commissioner acting for the Seventh District was heard January 27, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and Amado J. Vargas.
JESSE M. FRANKL, CHAIRMAN. The respondent employer and the respondent insurer Maryland Casualty Insurance Co. (appellant) have petitioned for review from the February 25, 1994 Finding and Award of the Commissioner for the Seventh District. They argue on appeal that the commissioner improperly concluded that the claimant suffered a recurrence or relapse rather than a new injury. We affirm the trial commissioner’s decision.
The claimant has been employed by the respondent employer since 1976. He suffered a compensable injury to his lumbar spine when he tripped over an air hose on May 26, 1989, which injury was accepted by the appellant, the insurer on the risk at that time. A voluntary agreement between the claimant and appellant specified a ten percent permanent partial disability of his lumbar spine as a result of that injury. A CAT scan and a myelogram taken by the claimant’s treating physician, Dr. Carino, soon after the injury showed a herniated disc at the L5/S1 level on the left, and a mild disc bulging at L4-L5. Dr. Carino had also treated the claimant for a February 9, 1988 work injury to his lumbar spine. The claimant’s symptoms from that injury were primarily resolved soon after it occurred, with some lingering low back pain.
The doctor performed a lumbar laminectomy on the claimant on June 2, 1989, and the claimant returned to work approximately six to eight weeks later at his usual job, although he experienced many bouts of moderate to severe back pain thereafter. Dr. Carino saw the claimant again on February 23, 1990, ten days after the claimant sneezed and felt immediate pain in his low back. The doctor prescribed anti-inflammatories for the claimant, and ordered him to attend four physical therapy sessions that summer. He did not see the claimant again until January 29, 1992.
The appellant ceased insuring the employer for its workers’ compensation liability on June 30, 1990. On January 25, 1992, while the employer was insured by the respondent Casualty Reciprocal Exchange (Casualty), the claimant bent over to pick up a three-ounce piece of car molding when he experienced sudden and severe back pain. He went home and rested over the weekend, but when he returned to work on Monday, his back pain was so severe that he fell down. The claimant was immediately taken to Dr. Carino’s office, where he told the doctor that he had been experiencing mild back pain for about two months with occasional radiation down into his right lower extremity. This would cause his knee to buckle and his leg to feel numb and cold. The claimant was admitted to Stamford Hospital at the doctor’s recommendation.
An MRI performed at the hospital demonstrated herniation of the L4-5 disc on the right side, leading to surgery to excise the disc on February 2, 1992. The claimant was released eight days later, and was returned to work by Dr. Carino on April 6, 1992. He felt that the claimant reached maximum medical improvement on May 11, 1992 with an additional two percent permanent partial disability of the lumbar spine, increasing his total permanent partial disability of the spine to twelve per cent.
The reports of Dr. Carino and Dr. Brovender, Casualty’s independent medical examiner, both indicated that the claimant’s bending over to pick up the piece of car molding was a minor incident. Dr. Carino characterized it as “the straw that broke the camel’s back.” Dr. Brovender opined that the bending incident was insignificant, as the 1989 injury predisposed the claimant to have another injury, and was the event that caused the reinjury. The commissioner found that the claimant had suffered a relapse from the May 26, 1989 injury on January 25, 1992, as the bending incident on the latter date “did not constitute an injury sufficiently definite as to the time and place where an accident occurred so as to have had a causative effect as to the injuries immediately subsequent thereto.” He cited Colas v. Marriott Food Services, 9 Conn. Workers’ Comp. Rev. Op. 86, 939 CRD-7-89-11 (Feb. 26, 1991) in support of that conclusion. The appellant filed a petition for review from the commissioner’s decision.
In its Motion to Correct, the appellant requested that eight paragraphs of the Finding and Award be fixed. Although four of the corrections were denied, including those changing the commissioner’s ultimate conclusion, one particularly relevant change was made. Among the added findings was one stating that the claimant in fact herniated the L4-L5 disc on January 25, 1992 while bending over to pick up the car molding.
The appellant argues that the commissioner erred in denying the remainder of its Motion to Correct, as his granting of the correction regarding the January 25, 1992 disc herniation created an inconsistency with the paragraph of his original award stating that the lifting incident was not a sufficiently definite injury as to time and place. Because the test of legal causation in Colas, supra, 86, requires a definite time and place of injury, the appellant argues that the commissioner incorrectly applied the law to this case.
We have long held that the question of whether an injury is a recurrence or a new injury is a factual determination for the trial commissioner. Perry v. Union Lyceum Taxi Co., 13 Conn. Workers’ Comp. Rev. Op. 16, 17, 1695 CRB-4-93-4 (Nov. 3, 1994). In close cases where the facts could support either conclusion, this Board will defer to the commissioner’s finding on that issue. Id.; see Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Although in this case there is ample evidence in the record to support the commissioner’s conclusion that the claimant suffered a relapse rather than a new injury, we still need to address the corrected finding that the claimant herniated his disc while bending over to pick up the car molding, and its significance under Colas, supra.
The appellant places great importance on the commissioner’s original finding that the bending incident “did not constitute an injury sufficiently definite as to the time and place where an accident occurred so as to have had a causative effect as to the injuries immediately subsequent thereto . . . ,” and its alleged inconsistency with the corrected finding that the herniation occurred on January 25, 1992. However, we do not believe that Colas requires the outcome urged by the appellant.
First, the commissioner’s original finding does not necessarily mean that the herniated disc did not occur on January 25, 1992. The sentence is confusing, because it attempts to explain an idea in the language of one paragraph of Colas (and § 31-275(16) C.G.S.) that would have been better explained by referring to different language in Colas. Specifically, we refer to the paragraph in Colas that states: “[i]f the October 21, 1988 events constituted a Sec. 31-307b recurrence of the September, 1987 injury, as found by the Seventh District, then the first employer Marriott must pay. If however these were new identifiable work related occurrences without which there would have been no disability on October 21, 1988, then the new employer Trusthouse must pay under Sec. 31-349.” Id., 88 (emphasis added). The point of this statement, and the real point of Colas, is that legal causation of an injury occurs at the time of the last event in the causation chain. In Colas, the claimant was attempting to lift a 30-gallon garbage bag filled with refuse when he reinjured his back, and we questioned whether the attempt to lift the garbage bag played a part in causing the claimant’s injury.
In this case, on the contrary, the claimant was bending over to pick up a three-ounce piece of car molding when he herniated his L4-L5 disc. Although the corrected findings indeed indicate that the herniation occurred on January 25, 1992, the finding challenged by the appellant does not indicate the exact opposite. Rather, the commissioner was attempting to explain that the bending incident did not have a causative effect on the subsequent injuries because the herniation would have occurred with or without that particular incident. We acknowledge the inartful phrasing of that particular sentence, but do not believe that it is actually inconsistent with the subsequent correction affixing the date of the herniation as January 25, 1992.
Second, our law employs a “substantial factor” analysis in determining whether employment was the proximate cause of an injury, and recognizes that causation may be interrupted where an intervening event has played a causal role in the claimant’s disability. Niebler v. Waldbaum’s Foodmart, 1851 CRB-3-93-9 (decided May 11, 1995). An incident may play a part of so minor a character that the law cannot recognize it as a cause, however. Id., citing McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 118 (1987). In Niebler, we upheld the commissioner’s conclusion that a claimant’s back injury was not caused by a minor bending incident in her home, but rather by the repetitive trauma of her having to move heavy containers of fish and lobster at work during the week preceding the injury. The bending incident in the case at bar was also insignificant, and there is certainly medical evidence to support the commissioner’s conclusion that it did not cause the claimant’s back injury. Therefore, we must defer to the commissioner’s finding that the injury was a recurrence rather than a new injury.
Commissioners Roberta S. D’Oyen and Amado J. Vargas concur.
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