Hunter v. UTC/Pratt & Whitney

The claimant was represented by Nathan Julian Shafner, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, 475 Bridge St., Groton, CT 06340.

The respondents were represented by James L. Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

Kenneth Kennedy, Jr., Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120 filed an appearance on behalf of the Second Injury Fund. However, the Second Injury Fund did not file a brief or appear at oral argument before this Board.

This Petition for Review from the March 8, 1994 Finding and Award of the Commissioner acting for the First District was heard January 27, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith D’Oyen and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the Finding and Award of the Commissioner for the First District. In that decision, the commissioner ruled that the decedent sustained a compensable injury to his back due to a fall at work which occurred on February 11, 1989. The commissioner further ruled that the fatal cancer which was discovered during the surgery for that back injury was not causally related to the decedent’s fall at work. The widow of the decedent (the “claimant”) contends that the decedent’s back injury hastened the decedent’s death, and thus she seeks benefits for the death of her husband.

Whether the trier erred in finding that the claimant’s injury arose out of and in the course of his employment requires a factual determination which we will not disturb unless it is found without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988); Northrop v. Boehringer Ingelheim, 9 Conn. Workers’ Comp. Rev. Op. 228, 1032 CRD-7-90-6 (Oct. 30, 1991). The Connecticut Supreme Court has defined the necessary causal connection between injury and employment as follows: “The causal connection required to be established is that the employment was the proximate cause of the injury...” Cole v. Norwalk Wilbert Vault Co., 4 Conn. Workers’ Comp. Rev. Op. 155,156, 330 CRD-2-84 (Feb. 26, 1988) (quoting Madore v. New Departure Mfg. Co., 104 Conn. 709, 713 (1926)). In determining proximate cause, we employ a “substantial factor” analysis. Id. The determination of proximate cause presents a factual issue. Cale v. Correia Excavators, Inc., 12 Conn. Workers’ Comp. Rev. Op. 338, 1662 CRB-1-93-3 (July 8, 1994).

This tribunal has long held that where the medical evidence is conflicting, the trial commissioner’s conclusion must stand so long as there is evidence to support it. Miller v. TVCCA, 12 Conn. Workers’ Comp. Rev. Op. 348, 1675 CRB-2-93-3 (July 29, 1994); Dusto v. Rogers Corp., 12 Conn. Workers’ Comp. Rev. Op. 80, 1496 CRB-1-92-8 (Feb. 4, 1994); Pulcinella v. Prudential Insurance Company, 10 Conn. Workers’ Comp. Rev. Op. 251, 1236 CRD-6-91-5 (January 11, 1993).

In the instant case, the trial commissioner concluded that the decedent’s compensable back injury did not have a significant effect on the decedent’s survival or longevity. The decedent’s treating physician, Dr. Posteraro, Jr., testified that as of February, 1989, when the decedent fell at work, he had “very extensive” metastasis of kidney cancer, which had spread to the bones in his back. Dr. Posteraro testified that such metastasis would have weakened the decedent’s bones. (Depo. at pp. 6-8). Dr. Posteraro further testified that “there is no way of actually saying this person lived one month less because he had this fracture or one hour less....” (Depo. at p. 17). Dr. Kuehn, a surgical oncologist who examined the decedent’s medical records, testified that the decedent’s life expectancy as of February, 1989 was approximately seven to eight months. Dr. Kuehn further testified that the decedent’s injury on February 11, 1989 and the resulting need for bed rest did not significantly affect the decedent’s survival time. (Depo. at p. 18-19). Thus, there was ample evidence in the record to support the commissioner’s determination that the decedent’s compensable back injury was not a substantial cause of his death from cancer.

The trial commissioner’s decision is affirmed, and the claimant’s appeal is dismissed.