Works v. John Olender Corporation et al.

The claimant was represented by Howard Schiller, Esq., 45 Church St., Willimantic, CT 06226.

The respondent-appellants were represented by Nancy S. Rosenbaum, Esq., 655 Winding Brook Drive, P. O. Box 695, Glastonbury, CT 06033.

The respondents Becker Construction and Royal Insurance were represented by Scott W. Williams, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430.

The respondents Savin Brothers, Techniair, Inc., and Hartford Insurance Group were represented by Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

The Second Injury Fund was represented by Lisa Weiss, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the December 23, 1994 Finding and Award of the Commissioner acting for the Second District was heard December 1, 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 John Olender Corp. (Olender) and Liberty Mutual Insurance Co. have petitioned for review from the December 23, 1994 Finding and Award of the Commissioner acting for the Second District. They argue on appeal that the commissioner erroneously found that the claimant was entitled to benefits because he did not find that an injury occurred while the claimant was employed by Olender. They also argue that the commissioner erred in failing to apportion responsibility for the claimant’s benefits among all of the respondents.1 We affirm the trial commissioner’s decision.

The trial commissioner found that the claimant suffered a back injury on September 19, 1984, while he was working for Becker Construction Company (Becker). As a result of that injury, Dr. Lawrence performed a laminectomy on him, and removed extruded disc material from the L4-L5 interspace. The claimant was assigned by voluntary agreement 12.5% permanent partial disability of the back, with a maximum medical improvement date of November 20, 1986.

The claimant subsequently returned to work for three different employers: Savin Brothers, from May 1987 to August 1987; Techniair, Inc., from October 1987 to April 1988; and Olender, from April 1988 to November 1990, including seasonal layoffs. His duties for Savin Brothers included driving light trucks, and he was engaged in painting and light maintenance work for Techniair. In contrast, the commissioner found that while the claimant worked for Olender, he drove a rock truck over unpaved roads in quarries, causing “significant repetitive jarring,” and that he also did maintenance work requiring heavy lifting. The episodic pain that the claimant had experienced between 1986 and 1990 worsened significantly afterward, and the claimant sought medical treatment in the late fall of 1990, after the seasonal layoff at Olender.

Several doctors examined the claimant over the next year or two. Dr. Lawrence concluded that the claimant had a new disc herniation at a different level from that operated on in 1984, and that the new symptoms resulted from a work-related occurrence as well as an aggravation of the previous condition. His request for authorization to perform further surgery on the claimant was denied by Becker’s insurance carrier. The claimant then consulted with Dr. Lange, who performed a disc excision at L5-S1 on March 18, 1991. Dr. Lange thought that a recent snow shoveling incident was insignificant; he ascribed the claimant’s back problem primarily to the 1984 injury, but added later that the claimant’s work at Olender contributed to the disc herniation at L5-S1. Finally, the claimant saw Dr. Shafer, who opined that the 1991 surgery was made necessary by the disc herniation at L5-S1, and not because of scar tissue that developed at L4-L5 because of the 1984 surgery. He also stated that the claimant’s 1991 symptoms were caused by his work at Olender, and not by the 1984 injury, although he allocated responsibility for the claimant’s overall disability in three equal parts to the disc herniation, the scar tissue, and the claimant’s underlying spondylosis.

The commissioner found that the claimant was totally disabled beginning on December 4, 1990, and that “although the spondylosis and the scar tissue were initial contributing causes, the immediate proximate cause of claimant’s total disability was the work at the John Olender Corporation.” He therefore ruled that Olender and its workers’ compensation carrier, Liberty Mutual, were responsible for the claimant’s total disability benefits and his medical expenses “resulting from the 1990 injury.” Olender and Liberty Mutual have appealed that decision.

The appellants go forth on two arguments: that the commissioner erred by finding that the claimant was entitled to medical expenses paid and disability benefits without finding that an injury had occurred, and that the commissioner erred by failing to apportion responsibility for those payments among all of the respondents, particularly Becker and its insurer. Regarding the first contention, the commissioner found that the claimant’s work at Olender was the “immediate cause of any permanent partial disability to claimant’s back.” The medical reports of all three physicians supported that finding to some degree. Although the trial commissioner did not specifically state that the claimant suffered a repetitive trauma injury, it is very clear from the subordinate facts and the commissioner’s conclusions that such a finding is implied by the decision. We therefore reject the appellants’ first contention of error.

The appellants’ other argument is the main focus of their appeal: that the commissioner improperly failed to apportion liability for the claimant’s benefits among all of the respondents, especially Becker. They contend that the commissioner’s Finding and Award contains evidentiary facts supporting apportionment, i.e. the statements of Drs. Lawrence, Lange and Shafer relating the claimant’s current disability to his 1984 injury. They also contend that the finding failed to consider any claim of apportionment under the common law or § 31-299b C.G.S., as that legal issue was not properly raised. Thus, the appellants argue that the claim should be remanded to the commissioner for further proceedings regarding apportionment.

The transcript of the October 9, 1992 formal hearing shows that the claimant’s attorney opened by framing the issue as “whether or not the current treatment of Mr. Works from November 19, 1990 forward is a recurrence of his initial injury or whether it is a subsequent repetitive trauma claim with appropriate apportionment between the previous employers, including the responsible party, Becker Construction, on the original claim.” During the proceedings, no one contended that apportionment was not at issue. As Becker notes in its appellate brief, all of the parties concerned with apportionment in this case were made a party to all of the hearings, and the issue of apportionment was addressed in some of the parties’ trial briefs. It would appear, therefore, that the legal issue of apportionment was raised below.

As we noted above, the commissioner’s award supports a finding that the claimant’s permanent partial disability was caused by repetitive trauma suffered while working for Olender. Apportionment under § 31-299b is applicable in repetitive trauma and occupational disease cases where there is a single injury occurring over a time period involving more than one employer or insurance carrier. Jolicoeur v. L. H. Duncklee Refrigeration, Inc., 14 Conn. Workers’ Comp. Rev. Op. 24, 26, 1842 CRB-2-93-9 (May 3, 1995). Although there was a repetitive trauma injury in this case, the commissioner’s findings stress the contrast between the heavy, strenuous labor that the claimant engaged in while working at Olender and the lighter duties that he performed at Techniair and Savin Brothers. The commissioner’s conclusion then describes the claimant’s work at Olender as the sole proximate cause of his current back disability. These findings certainly support a decision not to apportion liability for the repetitive trauma injury under § 31-299b. It is not our place to question them on review. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

As for common-law apportionment, we have held that a commissioner may find that two separate accidents contributed to cause a particular injury, although both accidents are individually compensable. Jolicoeur, supra, 27, citing Mund v. Farmer’s Cooperative Savings Bank, 139 Conn. 338 (1952). Here, the medical testimony could have supported a finding that the claimant’s employment with both Olender and Becker contributed to his current disability (i.e. Dr. Lange’s reports). However, it could just as easily support a conclusion that the claimant’s employment with Olender was the sole cause of his current disability (i.e. the reports of Drs. Lawrence and Shafer). The medical evidence was conflicting in that regard. In this case, the commissioner chose to draw the latter inference, which was his prerogative as the factfinder. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). We will not second-guess that decision here. It is sufficient to note that the commissioner appears to have considered the issue of apportionment, especially when one considers the language of Paragraphs 40 and 41, and that he made a ruling on that matter.

The trial commissioner’s decision is affirmed.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

1 The respondents stated in their brief that they were abandoning their claim that the commissioner erred in failing to grant their Motion to Correct, as the issues therein were “specifications of conflicting evidence.” BACK TO TEXT