Koczur v. O.Z. Gedney

The claimant was represented by Barry Armata, Esq., 1098 Farmington Ave., Bristol, CT 06010.

The respondents O.Z. Gedney and Travelers Insurance were represented by Joseph Passaretti, Jr., Esq., Law Offices of Christine L. Harrigan, 1952 Whitney Ave., Hamden, CT 06517.

The respondents Bristol Community Organization and CHAWCT were represented by Neil Ambrose, Esq., Letizia & Ambrose, Woodbridge Corporate Park, 1764 Litchfield Turnpike, Woodbridge, CT 06525.

This Petition for Review from the March 28, 1995 Finding and Award of the Commissioner acting for the Eighth District was heard March 15, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents O.Z. Gedney and Travelers Insurance Company (“respondent appellants”) have petitioned for review from the March 28, 1995 Finding and Award of the Commissioner acting for the Eighth District. In that decision, the trial commissioner found that the claimant suffered a compensable injury to her back on January 7, 1992 while employed by O.Z. Gedney, which was insured by Travelers. The trial commissioner found that the claimant sustained a subsequent injury to her back on April 29, 1994 while employed by Bristol Community Organization, which was insured by CHAWCT. The trial commissioner concluded that these two injuries were equal, concurrent, and contributing causes of her disability and need for medical treatment, including a herniated disc at L5-S1. Accordingly, the trial commissioner apportioned the resulting liability equally between Travelers and CHAWCT.

In support of their appeal, the respondent appellants contend that the trial commissioner improperly apportioned benefits between Travelers and CHAWCT. Specifically, the respondent appellants contend that the April 29, 1994 injury constituted a “new injury” and that the trial commissioner’s conclusion that the January 7, 1992 injury at O.Z. Gedney was an equal and concurrent cause of her disability is not supported by the record. In essence, the respondent appellants are contending that the 1994 injury constituted an intervening cause which absolved them of further responsibility. We find no error.

Issues regarding causation, such as whether an injury constitutes a new injury or a recurrence of a prior injury, are factual issues for the trial commissioner to determine. Perry v. Union Lyceum Taxi Co., 13 Conn. Workers’ Comp. Rev. Op. 16, 1695 CRB-4-93-4 (Nov. 3, 1994). We will not disturb such a factual determination 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, 538-39 (1988); Northrop v. Boehringer Ingelheim, 9 Conn. Workers’ Comp. Rev. Op. 228, 1032 CRD-7-90-6 (Oct. 30, 1991).

In the instant case, the trial commissioner found that the injury of January 7, 1992 resulted in a disc herniation at L4-L5 and damage to the disc at L5-S1. An MRI taken on June 21, 1993 showed a central disc herniation at L5-S1. On April 29, 1994, the claimant felt pain in her back while cleaning an oven during her employment with Bristol Community Organization. An MRI taken on May 20, 1994 showed a central disc herniation at L5-S1 which was only “slightly more prominent than it was in the study done in 1993.” (Stipulated Fact No. 30). The claimant’s treating neurosurgeon, Dr. Roberts, opined that the January 7, 1992 injury and the April 29, 1994 injury were equal and concurrent causes of the claimant’s disability. (Finding G). This opinion is corroborated by Dr. Ballon, a neurosurgeon who examined the claimant pursuant to a trial commissioner’s order. (Finding No. 4). We conclude that the record fully supports the trial commissioner’s determination that the April 29, 1994 injury and the January 7, 1992 injury constituted equal and concurrent causes of the claimant’s disability.

In further support of their appeal, the respondent appellants contend that the trial commissioner erroneously denied their motion to correct. The respondent appellants contend that the trial commissioner’s finding that the 1992 injury caused damage to the L5-S1 disc is not supported by the record. 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). The trial commissioner’s fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)).

The trial commissioner’s conclusion that the 1992 injury and the 1994 injury were equal and concurrent causes of her disability, including her L5-S1 disc herniation, is based on the weight and credibility which she accorded the evidence. We will not disturb such a determination. Dickey v. Harris Graphics, 12 Conn. Workers’ Comp. Rev. Op. 218, 1481 CRB-2-92-8 (March 22, 1994). The trial commissioner’s findings of fact and conclusion regarding causation are fully supported by the record. See Fair, supra. Accordingly, we find no error in the trial commissioner’s denial of the motion to correct.

The general rule in workers’ compensation law is that an employer is liable to provide compensation for the full extent of an employee’s disability, regardless of whether the disability is due in part to a preexisting condition or impairment. Levanti v. Dow Chemical Co., 218 Conn. 9, 18 (1991). Because of the hardships posed by this rule, apportionment statutes such as § 31-299b and § 31-349 have been enacted. Levanti, supra; see also § 31-275(1); § 31-307(d). In addition, liability for a disability caused by injuries which are “equal, concurrent and contributing causes” may be apportioned under the common-law tort theory of causation set forth in Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338, 341 (1952). See Jolicoeur v. L.H. Duncklee Refrigeration, 14 Conn. Workers’ Comp. Rev. Op. 24, 1842 CRB-2-93-9 (May 3, 1995).

The facts of the instant case are similar to the facts in Mund, supra. In that case, the court affirmed a commissioner’s finding that two separate accidental injuries which caused ruptures of the same L4-5 disc were equal and concurrent causes of the claimant’s disability, thus allowing the apportionment of liability between two insurers. We conclude that the trial commissioner’s apportionment of liability between Travelers and CHAWCT was appropriate under Mund and the common-law tort theory of causation espoused by that court. See Jolicoeur, supra.