Sidella v. Kelly Services et al.

The claimant was represented by Christine Engel, Esq., 141 East Main Street, Waterbury, CT 06702, who did not appear at oral argument.

The respondents Kelly Services and CNA were represented by Cori-Lynn S. Webber, Esq., Law Offices of Grant H. Miller, Jr., 29 South Main St., West Hartford, CT 06107-2445.

The respondents Furniture Concepts and Aetna were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

Respondent Second Injury Fund was represented at the trial level by Carolyn Signorelli, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120

This Petition for Review from the September 16, 1994 Finding and Award of the Commissioner acting for the Fifth District was heard May 19, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents Kelly Services and CNA Insurance (hereinafter referred to as Kelly Services) have petitioned for review from the September 16, 1994 Finding and Award of the Commissioner for the Fifth District. In that decision, the trial commissioner denied the request by Kelly Services to apportion its liability with the respondents Furniture Concepts and Aetna (hereinafter referred to as Furniture Concepts). Kelly Services argues on appeal that the commissioner improperly failed to apportion liability pursuant to § 31-299b. We affirm the trial commissioner’s decision.

The trial commissioner found the following relevant facts. The claimant suffered a compensable injury to his lumbar spine on October 13, 1989 while employed by Furniture Concepts. Due to that injury, the claimant underwent surgery on November 2, 1990. The claimant reached maximum medical improvement on March 12, 1991 and was assessed a fifteen percent permanent partial disability of the lumbar spine. The claimant testified that he did not experience any serious problems following the surgery. On January 23, 1993, while employed by Kelly Services, the claimant slipped and fell on ice. This injury resulted in the need for surgery. Dr. Mushaweh testified that it was reasonably medically probable that the second surgical procedure would not have been necessary had the 1993 injury not occurred. (Finding No. 10). Furthermore, Dr. Mushaweh testified that it was reasonably medically probable that the claimant’s current disability would not have been incurred had the 1993 injury not occurred. (Finding No. 18).

First, we will address Kelly Services’ contention that the trial commissioner improperly denied its motion to correct. Kelly Services contends that its motion to correct included uncontroverted facts showing that there were concurrent causes of the claimant’s medical condition. On review of the denial of a motion to correct, this board may not alter a commissioner’s findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed material facts. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995). A motion to correct also may be denied where the legal conclusion of the commissioner would not be altered by the substituted findings. Id.; Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994).

In the instant case, the commissioner accorded little weight to the opinion of Dr. Arkins, and instead chose to rely on Dr. Mushaweh’s opinion that the claimant’s disability and resulting need for surgery would not have occurred in the absence of the 1993 injury. (Findings No. 16 and 18). 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 (Jan. 11, 1993). Moreover, a commissioner, as a trier of fact, has the right to reject testimony even if it is seemingly uncontradicted. Colucci v. Mattatuck Manufacturing Co., 9 Conn. Workers’ Comp. Rev. Op. 234, 1000 CRD-5-90-4 (Oct. 30, 1991). We find no error in the commissioner’s denial of the claimant’s motion to correct.

In its appeal, Kelly Services argues that the trial commissioner was required to apportion liability pursuant to either § 31-299b1 or pursuant to common law doctrine as set forth in Mund v. Farmers’ Cooperative Inc., 139 Conn. 338 (1952). Apportionment pursuant to § 31-299b “is the workers’ compensation embodiment of common law joint tortfeasor liability ‘where a single indivisible harm is sustained as a result of the independent, separate, but concurring tortious acts of two or more persons.’” Thomen v. Turri Electric, 11 Conn. Workers’ Comp. Rev. Op. 299, 301-02, 1324 CRD-5-91-10 (Dec. 23, 1993) (citation omitted). “Section 31-299b apportionment is appropriate in occupational disease and repetitive trauma cases where there is a single injury occurring over a time continuum involving several employers or carriers.” Id. However, § 31-299b is not applicable where two separate compensable traumatic injuries have occurred even though both injuries contributed to the claimant’s overall permanent disability. Thomen, supra. In the instant case, the trial commissioner’s determination that the claimant sustained two separate compensable injuries is adequately supported by the record. We thus find no error in her decision not to apply §31-299b.

The respondent Kelly Services further contends that the common law doctrine of apportionment as enunciated in Mund, supra, should apply. However, the court in Mund affirmed the apportionment of liability for two back injuries where the trial commissioner determined that the accidents were “equal, concurrent and contributing causes” of the disability. Mund, supra, at 341. Similarly, in Jolicoeur v. L.H. Duncklee Refrigeration, 1842 CRB-2-93-9 (decided May 3, 1995), this board affirmed apportionment where the trial commissioner determined that the claimant’s work injuries were “equally contributing causes.” In contrast, the trial commissioner in the instant case did not find that the claimant’s 1989 and 1993 injuries constituted concurrent and contributing causes of his resulting medical condition.

The issue of whether the 1993 injury was the proximate cause of the claimant’s resulting surgery and disability, or whether the prior 1989 injury was a concurrent cause, constituted a factual issue. See D’Agostino v. City of Waterbury, 10 Conn. Workers’ Comp. Rev. Op. 4, 942 CRD-5-89-11 (April 15, 1991). We may not disturb such factual findings unless they are contrary to law, without evidence or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). In the instant case, the trial commissioner’s determination that the 1989 and the 1993 injuries were separate injuries was clearly based upon the weight which she accorded the testimony. We will not disturb such a determination. Colucci, supra.

The trial commissioner’s decision is affirmed.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

1 Section 31-299b provides in relevant part: “If an employee suffers an injury or disease for which compensation is found by the commissioner to be payable according to the provisions of this chapter, the employer who last employed the claimant prior to the filing of the claim, or the employer’s insurer, shall be initially liable for the payment of such compensation. The commissioner shall, within a reasonable period of time after issuing an award, on the basis of the record of the hearing, determine whether prior employers, or their insurers, are liable for a portion of such compensation and the extent of their liability. If prior employers are found to be so liable, the commissioner shall order such employers or their insurers to reimburse the initially liable employer or insurer according to the proportion of their liability.” BACK TO TEXT