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Pothier v. Stanley-Bostitch/The Bostitch Company

CASE NO. 3411 CRB-3-96-8



JANUARY 21, 1998















The claimant was represented by Diane Sikorsky, Esq., Edgewater Building, Suites 3 & 4, 929 Boston Post Road, Old Saybrook, CT 06475.

The employer and Aetna Life & Casualty were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

The employer and Cigna were represented by David Schoolcraft, Esq., Duhamel & Schoolcraft, 131 New London Turnpike, suite 317, Glastonbury, CT 06033 formerly of Trowbridge, Schoolcraft & Basine, P.C., 45 Glastonbury Boulevard, Glastonbury, CT 06033

This Petition for Review from the August 22, 1996 Finding and Award of the Commissioner acting for the Third District was heard May 9, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.


JESSE M. FRANKL, CHAIRMAN. The respondent insurer Cigna has petitioned for review from the August 22, 1996 Finding and Award of the Commissioner acting for the Third District.1 Cigna argues on appeal that the commissioner erred by ordering that it pay benefits to the claimant without first finding that the claimant had suffered a new compensable injury. We affirm the trial commissioner’s decision.

The claimant was initially injured during his employment on June 1, 1985, when he was struck in the chest by an electrified wire, resulting in a serious puncture wound. The respondent Aetna was the insurer on the risk at the time, and accepted responsibility for the claim by voluntary agreement. The claimant returned to light duty work in July 1987, after being treated for an intercostal nerve deficit by Dr. Elefteriades and for pain management at Gaylord Hospital. Dr. Godar examined the claimant on March 16, 1989, opining that he had reached maximum medical improvement with a 10% permanent partial disability of the right lung.

As the claimant was preparing to leave work on April 7, 1989, a fellow employee approached him from behind and squeezed him in the chest area. Although the employee was simply trying to be playful, the claimant experienced excruciating chest pain, and had to resume treatment for symptoms of pain. He ended up missing 17 months of work after that incident, which occurred in the course of his work shift. Cigna, which was the insurer on the risk for workers’ compensation liability on April 7, 1989, made payments without prejudice for one year, but sought reimbursement from Aetna. Aetna denied liability, alleging that there was a new injury or aggravation of the pre-existing condition on the date in question.

The trier cited the opinions of several doctors. Dr. Macinski opined that the claimant’s chest pain was due to either intercostal neuropathy or thoracic radiculopathy resulting from the June 1, 1985 electrical injury and an exacerbation of that condition on April 7, 1989. Dr. Stern could not determine any objective reason for the claimant’s pain after performing a CAT scan, and Dr. Arkins could not find a neurological reason for the chest pain either. Dr. Taub then received the claimant on referral, and diagnosed intercostal neuropathy. He indicated that there was no objective change in the claimant’s physical status after the April 1989 incident. Dr. Brown also opined that the claimant’s pain was related to his original injury.

Noting that the claimant had been able to work in a light duty capacity for almost two years after returning to work in 1987, the trier concluded that the April 7, 1989 incident caused the claimant’s subsequent total disability. He found that the claimant had reached maximum medical improvement in March 1989, and that the April incident was an aggravation of his pre-existing condition. The commissioner ordered Cigna to pay the claimant temporary total disability benefits from April 8, 1989 through July 2, 1990 subject to credit for any payments already made, along with certain other charges incurred by the claimant. Cigna has appealed that decision.

The appellants do not contest the severity of the claimant’s condition, or the finding that he was temporarily totally disabled. However, Cigna argues that the legal requirements of an “injury” under the Workers’ Compensation Act have not been met in this case, as the trier did not find that an actual injury occurred in 1989, and the medical evidence would be insufficient to support such a finding. They contend that increased symptoms of pain are not the same as an injury. Further, Cigna argues that the “touching” incident itself did not arise out of the claimant’s employment, as it was an intentional act or assault.

Initially, it is very important to remember that this board is not empowered to make factual findings on review. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Instead, we must defer to the factual findings of the trial commissioner, unless those findings are unsupported by the evidence in the record, or unless undisputed and material findings have been omitted from the commissioner’s decision. Id.; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). If the trier has correctly applied the law to the facts found and has not drawn illegal inferences from the facts, his legal conclusions must also stand on review. Fair, supra, citing Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979).

Whether or not there was a causal relationship between the claimant’s increased pain after April 7, 1989, and the jab in the sides that he got from his co-worker was a question of fact for the trial commissioner. See Levesque v. Consumer Interstate, 14 Conn. Workers’ Comp. Rev. Op. 280, 282, 1886 CRB-2-93-10 (Sept. 11, 1995); Neibler v. Waldbaum’s Foodmart, 14 Conn. Workers’ Comp. Rev. Op. 61, 62, 1851 CRB-3-93-9 (May 11, 1995). The trier concluded that the claimant was totally disabled from April 7, 1989 through July 2, 1990 as a result of that incident. His conclusion is entitled to the same deference as that of a trial judge or a jury on the issue of proximate cause. Rogers v. Laidlaw Transit, 45 Conn. App. 204, 206 (1997).

Although no one questions the importance of the original 1985 injury in damaging the claimant’s chest wall, it is also clear that the claimant was able to perform a light duty job continuously during the two years leading up to the 1989 incident. Dr. Macinski stated that the claimant’s pain was related by history to the 1985 injury, and exacerbated in April 1989. (Claimant’s Exhibit B). The trier cited Dr. Macinski’s report in his findings, as was his prerogative. Webb, supra. It is true that none of the medical reports identify a specific physical change in the claimant as a result of the April 1989 incident. It is equally true, however, that the moment in time that the claimant began experiencing severe chest pain can be precisely identified as the moment when his co-worker poked him in the sides. The reports of Dr. Macinski and Dr. Taub both surmise that the claimant suffers from intercostal neuropathy, which can explain his pain symptoms. The real question, then, is whether the trier was legally entitled to find that the apparently trivial 1989 incident can be identified as a proximate cause of his disability.

In Epps v. Beiersdorf, Inc., 14 Conn. Workers’ Comp. Rev. Op. 57, 1733 CRB-7-93-5 (May 11, 1995), this board affirmed a trial commissioner’s decision that a claimant had failed to prove that he suffered a compensable injury. The trier had found, in accordance with a doctor’s report, that the claimant’s workplace exposure to chemicals had not caused his condition, but was an “aggravating factor” upon his preexisting hyperreactive airways. However, the trier had also noted that the claimant’s symptoms could be triggered outside the workplace by dust, smoke and household products. He concluded that the claimant had failed to prove a compensable injury. We upheld that decision, reasoning that the use of the term “aggravating” referred to the tendency of the chemicals to irritate the claimant’s asthmatic condition while he was at work, and not to a permanent worsening of the claimant’s condition due to exposure to workplace chemicals. Id., 59. “This diagnosis of the claimant’s malady is devoid of the causal relationship between employment and disease contemplated in cases such as Hansen v. Gordon, [221 Conn. 29 (1992)], and Prisco v. North & Judd, [10 Conn. Workers’ Comp. Rev. Op. 154, 1190 CRB-8-91-3 (June 30, 1992)], and would support the conclusion that the claimant’s disease was not aggravated by his employment within the meaning of § 31-275(1)(D).” Id.

Our decision in Epps was reversed by the Appellate Court. 41 Conn. App. 430 (1996). The court ruled that our distinction between “aggravation” and “irritation” overlooked a fundamental tenet of workers’ compensation law, “namely, that an employer takes the employee in the state of health in which it finds the employee.” Id., 435. The court concluded that the plaintiff had indeed established that his condition was aggravated by his employment within the meaning of § 31-275(1)(D), and that the contrary finding of the trier was unsupported by the facts. Even though the plaintiff’s asthma was neither caused nor permanently worsened by the workplace exposure, the fact that the chemicals at work triggered an allergic reaction while the plaintiff was in contact with them amounted to a compensable injury under the Workers’ Compensation Act. This broader definition of “injury” was reaffirmed in Doe v. Stamford, 241 Conn. 692, 698-700 (1997), where the Court held that the definition of “injury” in § 31-275(16) does not require a similar pathological manifestation to an “occupational disease” under § 31-275(15), and includes exposure to HIV and tuberculosis, even though the incidents giving rise to the exposures in that case did not leave a mark, abrasion or other outward sign.

There are no significant legal differences between this case and both Doe and Epps. The claimant began experiencing severe pain when his co-worker squeezed him on the sides of his chest. The trier found that this identifiable incident had a causal connection to the claimant’s pain and subsequent disability. He did not find that the incident was so minor as to have no effect on the chain of causation in this case, and we may not substitute our judgment for that of the trier of fact. Compare Hanzlik v. James Freccia Auto Body, 15 Conn. Workers’ Comp. Rev. Op. 2, 1984 CRB-7-94-3 (Nov. 11, 1995), affirmed, 43 Conn. App. 908 (1996) (where trier found that incident at work was too insignificant to have a causative effect on the injury contemporaneously suffered by the claimant, the CRB deferred to that finding). The trier also made no finding that the conduct of the claimant’s co-worker amounted to a significant intentional act that would somehow take this injury outside the scope of the claimant’s employment. We likewise must defer to that factual determination on review. Interaction between co-workers is not outside the scope of a person’s employment as a matter of law, and is certainly a foreseeable and reasonable event in most workplaces. See, e.g., Lane v. J. Copperfield LTD, 11 Conn. Workers’ Comp. Rev. Op. 153, 1293 CRD-2-91-8 (Aug. 23, 1993).

Accordingly, the trial commissioner’s decision is affirmed.

Commissioners James J. Metro and John A. Mastropietro concur.

1 This board issued a prior opinion relating to the proceedings in this case in Pothier v. Stanley-Bostitch/The Bostitch Company, 15 Conn. Workers’ Comp. Rev. Op. 13, 2019 CRB-3-94-4 (Nov. 7, 1995). The issues on appeal there concerned the trier’s authority to vacate a prior decision, however, and have no bearing on the merits of this case now on appeal. BACK TO TEXT

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