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Gaudino v. Chromium Process et al.

CASE NO. 3585 CRB-4-97-04



JUNE 5, 1998





















The claimant was represented by George Boath, Jr., Esq., Zanella, Gilardi & Boath, 1129 Essex Place, P. O. Box 9708, Stratford, CT 06497.

The respondents Chromium Process and EBI Companies were represented by William Brown, Esq., McGann, Bartlett, & Brown, 281 Hartford Tpke., Vernon, CT 06066.

The respondents Crabtree-Haas and American Policyholders Insurance were represented by David A. Kelly, Esq., Montstream & May, 655 Winding Brook Drive, Glastonbury, CT 06033.

The Second Injury Fund was not represented at oral argument. Notice sent to Kenneth Kennedy, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the April 10, 1997 Finding and Award of the Commissioner acting for the Fourth District was heard December 19, 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 respondents Crabtree-Haas Cadillac Oldsmobile and American Policyholders Insurance Co. have petitioned for review from the April 10, 1997 Finding and Award of the Commissioner acting for the Fourth District. They argue on appeal that the trier erred by finding that the claimant suffered an injury in 1989 and apportioning liability for the claimant’s permanency accordingly. We affirm the trial commissioner’s decision.

The trial commissioner found the following facts. The claimant suffered a compensable back injury while employed at Chromium Process on May 26, 1988. He underwent a laminectomy for an excision of his L5/S1 disc on July 6, 1988. He later obtained full-time employment with Crabtree-Haas on January 5, 1989, which lasted through February 15, 1989. His primary job was to drive cars back and forth to New York. He testified that “on a particular day” while getting out of a car, he heard his back pop and felt a great deal of pain. Dr. Lipow, the treating physician, described this injury as an exacerbation, a recurrence, a flare-up, and a continuation of the earlier injury. He also had warned the claimant not to do a lot of extensive driving. Dr. Lipow thought that the claimant’s job duties at Crabtree-Haas were a significant factor in causing him to need fusion surgery by making the pain unbearably worse. He assessed the claimant with a 28% loss of use of the back, with 16% attributable to his employment at Crabtree-Haas, and the other 12% due to his injury with Chromium Process. There was no medical evidence introduced to contradict Dr. Lipow’s opinion.

The commissioner then noted that Crabtree-Haas was cited to appear at an informal hearing in January 1990, which was within one year of the period of repetitive trauma. She also took notice of a voluntary agreement approved on February 22, 1990 for the May 26, 1988 accident. The commissioner adopted Dr. Lipow’s assessments of permanent partial disability, and ordered both Chromium Process and Crabtree-Haas to pay their respective shares. Crabtree-Haas and its insurer, American Policyholders Insurance, have appealed that decision.1

The first argument raised by the appellants is that § 31-294 C.G.S. bars the claim for apportionment by Chromium Process and its insurer, EBI Companies, due to lack of timely notice. In a repetitive trauma case, notice of a claim for compensation must be filed within one year from the date of the last exposure to the incidents of the repetitive trauma, which is usually the last date of employment. Discuillo v. Stone & Webster, 242 Conn. 570, 574 (1997); Borent v. State, 33 Conn. App. 495, 499 (1994). Here, the last date of the claimant’s employment with Crabtree-Haas was February 15, 1989. No one has suggested that either the claimant or Chromium Process filed a written notice of claim within one year of that date as required by § 31-294. However, the commissioner found that a hearing had been assigned within the one-year period following the last date of the claimant’s employment, thereby meeting one of the exceptions to the notice requirement in § 31-294.

The appellants contend that the hearing notice cited by the commissioner did not satisfy the § 31-294 exception, even though it was issued within the statutory one-year period. They argue that the exceptions to the notice requirement in § 31-294 are only for the benefit of the claimant. No showing was made that the claimant requested the hearing in question. According to the appellants, it follows that Chromium Process has not met its burden of proving that the Workers’ Compensation Commission has jurisdiction over this apportionment claim. They rely on Figueroa v. C&S Ball Bearing, 237 Conn. 1 (1996), as the primary source of support for their position.

The appellants might have a plausible argument if the claimant had not previously filed a workers’ compensation claim for his back injury. However, Figueroa only stands for the proposition that a medical provider (or other outside party) does not have the standing to furnish the notice required of an employee to invoke the jurisdiction of the commission. Id., 7. In other words, where a workers’ compensation claim has not been filed, a medical provider or insurance company cannot file it on behalf of the claimant. Figueroa does not stand for the proposition that the claimant must initiate proceedings regarding apportionment of liability for an injury or a disability that has already been found compensable. Realistically, such a requirement would be outlandish, as a claimant seldom has the incentive to file an apportionment claim when the amount of his personal financial recovery would not be affected. Section 31-299b recognizes as much by allowing the employer who is found liable for the payment of compensation to request that the commissioner determine whether other employers are liable for a portion of that compensation. Section 31-349, until recently, had a comparable effect.

Although apportionment under § 31-299b is of a slightly different nature than apportionment in cases where a series of separate injuries have occurred; see Mund v. Farmer’s Cooperative, Inc., 139 Conn. 338, 344-45 (1952); Jolicoeur v. L. H. Duncklee Refrigeration, Inc., 14 Conn. Workers’ Comp. Rev. Op. 24, 27, 1842 CRB-2-93-9 (May 3, 1995); the spirit and purpose behind allowing such a division of legal responsibility is the same. Once the claimant invoked the jurisdiction of the workers’ compensation commission by filing his initial claim, Chromium Process and EBI Companies were entitled to defend themselves against the contention that the claimant’s entire disability was due to the injury suffered in the course of his employment with Chromium Process. Under the facts of this case, the claimant had no incentive to allege that a portion of his incapacity was due to his employment with Crabtree-Haas, as the claimant was being paid less by that employer, and would receive less money for any portion of his permanency that was found to be attributable to his employment at Crabtree-Haas instead of his back injury suffered at Chromium Process. Thus, it would necessarily be the respondents Chromium Process and EBI Companies who would seek an apportionment of liability for the claimant’s permanency rating with his subsequent employer. The legislature obviously contemplated that employers would be taking such action when it passed § 31-299b and § 31-349, and we read § 31-294 to be consistent with that intent.

The record contains not one but four informal hearing notices dated January 23, 1990 or earlier that were addressed to Crabtree-Haas and/or its counsel regarding informal hearings on temporary total disability, permanent partial disability, and/or a recurrence of the prior injury. Counsel for the appellants also appears to have attended the February 22, 1990 hearing that was noticed on January 23, 1990. As the respondents were clearly aware of the apportionment claim pending against them within one year of the date the claimant ceased his employment at Crabtree-Haas, we agree with the trial commissioner’s conclusion that proper notice was afforded the appellants within the meaning of the “informal hearing” exception in § 31-294. We thus hold that this commission does not lack jurisdiction to consider the instant apportionment claim.

The appellants’ other argument alleges that the evidence itself fails to establish that the claimant’s employment with Crabtree-Haas played any part in the worsening of his back condition. We disagree. Although the claimant may have suffered from severe back pain shortly before he went to work at Crabtree-Haas, Dr. Lipow clearly stated in his October 10, 1995 report that he believed 12% permanent partial impairment was attributable to the 1988 injury, while 16% was attributable to the driving-related injuries in early 1989. Claimant’s Exhibit A. That report details the claimant’s May 29, 1988 back injury at Chromium Process; his L5-S1 disc extrusion of July 6, 1988; his subsequent recovery and periodic recurrences of pain in October and then December 1988; his complaint of a backache in late December 1988, at which time an MRI revealed a potential bulging disc; the claimant’s complaints of a progressively worsening backache while driving cars to New York City for Crabtree-Haas in February 1989; a March 1989 myelogram evaluation that revealed the claimant was suffering from progressive herniation of the L5-S1 disc, and the May 4, 1989 excision of the L5-S1 disc and subsequent fusion of the claimant’s low back.

The trial commissioner was entitled to credit this report in the performance of her duties as factfinder. Hanson v. Transportation General, Inc., 45 Conn. App. 441, 447 (1997); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). She reasonably adjudged this opinion, in conjunction with the October 23, 1996 deposition of Dr. Lipow, as stating within a reasonable degree of medical probability that a significant part of the claimant’s 28% permanent partial disability of the back was due to his employment with Crabtree-Haas, and that said employment exacerbated his back condition. See Struckman v. Burns, 205 Conn. 542, 554-55 (1987) (no “magic words” required in doctor’s diagnosis); Deposition, supra, pp. 53, 68-69. On review, we may not disturb this finding, as the trier did not abuse her discretion in drawing the conclusions she did from Dr. Lipow’s report and his testimony. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Jusiewicz, supra. We therefore affirm the trial commissioner’s decision.

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

1 The respondents Chromium Process and EBI Companies have filed a motion to dismiss the appellants’ petition for review on the grounds that it was filed late. The commissioner’s decision was dated April 10, 1997. The petition for review was date-stamped April 21, 1997 by the Fourth District office of this Commission. As April 20, 1997 was a Sunday, the petition for review is timely on its face under § 31-301(a). See Practice Book § 63-2; Noga v. Colin Service Systems, Inc. 3361 CRB-6-96-6 (decided Sept. 16, 1997). BACK TO TEXT

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