LeFevre v. Marty Gilman, Inc.

The claimant was represented by Robert Keville, Esq., Suisman, Shapiro, Wool, Brennan & Gray, The Courtney Building, 2 Union Plaza, P.O. Box 1591, New London, CT 06320.

The respondent was represented by Robert Enright, Esq., McGann, Bartlett & Brown, 281 Hartford Trnpk., Vernon, CT 06066.

This Petition for Review from the September 6, 1995 Finding and Award of the Commissioner acting for the Eighth District was heard August 30, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the September 6, 1995 Finding and Award of the Commissioner acting for the Eighth District. In that decision, the trial commissioner found that the claimant had previously sustained an injury to his back on July 25, 1993 while working for another employer. The trial commissioner further found that the claimant subsequently sustained a new injury when he worked for the respondent Marty Gilman and assessed a five percent permanent partial disability as a result of said injury. In support of his appeal, the claimant contends that he was entitled to a fifteen percent permanent partial disability award. In addition, the claimant contends that the trial commissioner should have awarded more than three weeks of benefits for temporary total disability and also should have awarded some benefits for temporary partial disability pursuant to § 31-308(a). We affirm the trial commissioner’s decision.

In the instant case, on July 25, 1993 while employed by Sabow and Company (“Sabow”) the claimant sustained an injury to his cervical spine which was the subject of an approved stipulation. The claimant treated with Dr. Sculco, a neurosurgeon, until 1994. The claimant left his employment with Sabow and on January 31, 1994 commenced employment with the respondent employer Marty Gilman. Dr. Sculco stated in office notes dated March 16, 1994 that the claimant “has not tolerated his job change and would therefore advise that he remain out of work for three weeks effective March 14, 1994.” (Finding No. 7). Dr. Krompinger, an orthopedist, performed an independent medical examination on behalf of Sabow on November 1, 1994. Dr. Krompinger opined that the claimant had sustained a ruptured disc as a result of his 1993 injury, and that the claimant had improved with conservative treatment until his symptoms were quiescent. Dr. Krompinger further opined that due to heavy lifting during his employment with Marty Gilman during February of 1994, the claimant sustained an exacerbation of his previous injury. Dr. Krompinger assessed a fifteen percent permanent partial disability of the cervical spine, and concluded that the July 25, 1993 injury caused a ten percent permanent partial disability and that his employment with Marty Gilman was the cause of the remaining five percent permanency.

In support of his appeal, the claimant contends that Marty Gilman is liable for the entire fifteen percent permanency pursuant to § 31-299b. We find no merit to the claimant’s argument. Section 31-299b is intended for use in occupational disease and repetitive trauma cases where a single injury occurs over a time continuum spanning several different employers or insurance carriers. Jolicoeur v. L. H. Duncklee Corp., 14 Conn. Workers’ Comp. Rev. Op. 24, 1842 CRB-2-93-9 (May 3, 1995); Thomen v. Turri Electric, 11 Conn. Workers’ Comp. Rev. Op. 299, 301-02, 1324 CRD-5-91-10 (Dec. 23, 1993). In the instant case, the trial commissioner determined that the claimant sustained a new injury while working for Marty Gilman which caused the claimant to sustain an added five percent permanent partial disability. In essence, the trial commissioner found that the claimant’s heavy lifting duties at Marty Gilman constituted an intervening cause with respect to the prior employer. See Mellor v. Pleasure Valley Mobile Homes, 11 Conn. Workers’ Comp. Rev. Op. 270, 1393 CRB-2-92-3 (Nov. 18, 1993). Thus, the trial commissioner concluded that Marty Gilman was liable for the five percent permanent partial disability and that the remaining ten percent permanency was paid or payable by Sabow. We conclude that the trial commissioner properly apportioned the resulting permanent partial disability based upon § 31-349. See Thomen, supra; see also McBreairty v. DBD, Inc., 13 Conn. Workers’ Comp. Rev. Op. 259, 1781 CRB-7-93-7 (April 18, 1995).

In further support of his appeal, the claimant contends that the trial commissioner erred in failing to award reasonable medical costs associated with the February 1994 injury. Certainly, reasonable medical bills which are the result of the injury sustained while at Marty Gilman are the responsibility of Marty Gilman.1 The claimant may request a hearing on any such outstanding medical bills.

Next, we will address the claimant’s claims for further benefits for temporary total disability pursuant to § 31-307 and for permanent partial disability pursuant to § 31-308(a). In the instant case, there are insufficient findings of fact regarding the claimant’s alleged temporary total disability and partial disability for this board to adequately review the claimant’s contentions regarding these issues on appeal. See Charette v. Jensen Mobile Home, 10 Conn. Workers’ Comp. Rev. Op. 1, 936 CRD-6-89-11 (March 19, 1991). We therefore remand this matter to the trial commissioner to issue a decision, including further findings of fact, regarding the claimant’s claim for temporary total and temporary partial disability benefits.

This matter is remanded for the limited purpose stated above, and in all other respects the trial commissioner’s decision is affirmed.

Commissioners George A. Waldron and Robin L. Wilson concur.

1 We note that the claimant agreed to accept $39,000.00 as a settlement for the July 25, 1993 injury pursuant to a stipulation which was approved by the trial commissioner on March 27, 1995. The claimant testified that said stipulation included outstanding medical bills. (Finding No. 5; 7/25/95 TR. at p. 14). Generally, a “stipulation is intended to foreclose a claimant from making a future claim for any disability or medical bill that flows from the compensable injury.” Wrubleski v. Kimberly-Clark Corp., Case No. 3106 CRB-7-95-6 (Dec. 24, 1996) (citing Muldoon v. Homestead Insulation Co., 231 Conn. 469, 480-81 (1994)). However, a stipulation would not prevent a claimant from raising a claim that is not related to the settled injury. Id. BACK TO TEXT