Depina v. CHR

The claimant was represented by John Esposito, Jr., Esq., 373 Humphrey Street, New Haven, CT 06511, who did not appear at oral argument.

The respondent Zurich American (formerly Maryland Casualty) was represented James D. Moran, Esq., Maher & Williams, 1300 Post Road, Fairfield, CT 06430-0550, who did not appear at oral argument.

The respondent Travelers was represented by Nancy E. Berdon, Esq., Sizemore Law Offices, Crossroads Corporate Park, 6 Devine Street, North Haven, CT 06473.

The respondent CNA Insurance Co. was represented by Howard Levine, Esq., Law Office of Grant Miller, Jr., 29 South Main Street, Suite 310N, West Hartford, CT 06107, who did not appear at oral argument.

The respondent CNA Risk Management was represented by Robert J. Enright, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

The respondent Constitution Health Care was represented by Margaret McGrail, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the April 22, 1999 Finding and Award of the Commissioner acting for the Third District was heard December 3, 1999 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent CNA Risk Management (hereinafter “respondent”) has petitioned for review from the April 22, 1999 Finding and Award of the Commissioner acting for the Third District. In that decision the trial commissioner found that the claimant sustained a compensable injury on September 14, 1979 to his right hand, and that subsequently due to repetitive trauma caused by his work duties, the claimant developed bilateral carpal tunnel syndrome and right cubital tunnel syndrome for which surgery has been recommended. In support of its appeal, the respondent contends that the trial commissioner’s determination that injurious exposure extended to August of 1998 is not supported by the evidence in the record. In addition, the respondent argues that the medical evidence does not indicate that the respondent is liable for right cubital tunnel surgery.

The trial commissioner found the following relevant facts. The claimant sustained a compensable injury to his right hand on September 14, 1979. Following the injury, his position was changed to that of a sheet room operator which was lighter duty work, but which required him to use his hands constantly- cutting, loading and unloading sheets of rubber. The claimant worked in this position from 1979 to August of 1998 (the date of the formal hearing), during which time the claimant sustained repetitive trauma injuries to his hands, specifically bilateral carpal tunnel syndrome and right cubital tunnel syndrome. There were various insurers during this period, and their periods of liability are in the findings of fact, but need not be set forth here. At issue is the liability of the respondent CNA Risk Management, which was the insurer from February 1, 1997 through August 11, 1998 (the date of the formal hearing). The trial commissioner found the respondent to be the responsible insurer pursuant to § 31-299b, as the respondent was the insurer during the claimant’s last exposure in August of 1998.

The claimant was seen by several physicians for his hand injuries, including Dr. Tross, a hand surgeon, who initially performed an independent medical examination in 1994. The claimant was subsequently seen by Dr. Tross on June 7, 1996 and January 9, 1998. Dr. Tross, in his report dated January 14, 1998, opined that the claimant continued to suffer from right carpal tunnel and cubital tunnel syndromes, which were first detected in 1994. In that report, he opined that these injuries were the result of the claimant’s repetitive use of his hands since 1992, and recommended surgeries.

In support of its appeal, the respondent argues that there is no medical evidence that the right cubital tunnel syndrome was caused by the claimant’s employment during the time period that the respondent was the insurer. Additionally, the respondent contends that the medical evidence only indicates that injurious exposure occurred up until January 9, 1998, the date of the claimant’s last visit with Dr. Tross. We disagree.

When reviewing a trial commissioner’s decision, it is well established that this board “is obligated to hear the appeal on the record and not retry the facts….” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999) (quotations omitted). The determination of whether an injury arose out of and in the course of the employment requires a factual determination by the trial commissioner. Id. “Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it….” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 349 (1999) (citations omitted).

In the instant case, Dr. Tross opined in his January 14, 1998 report that the claimant does “significant repetitive work and has proceeded to develop bilateral electrical physiologically proven carpal tunnel syndrome and a right cubital tunnel syndrome.” (Claimant’s Exh. B). Moreover, the claimant testified that he was presently working in the position as a sheet room operator and had done so for the last nineteen years, and that his duties included cutting, loading, and reloading molds continuously each day. (8/11/98 TR. at 13-14). The trial commissioner’s conclusion that the carpal tunnel and cubital tunnel syndromes were caused by injurious exposure at work from 1992 through August of 1998 (Finding ¶ J) is thus fully supported by the record.

Finally, we will briefly address the respondent’s argument that there is currently no recommendation for surgery for the cubital tunnel syndrome, citing the sentence in the January 14, 1998 report which states: “At present, we would defer any treatment of the cubital tunnel until the results of the right thumb trapezio metacarpal arthroplasty and carpal tunnel release are known.” We find this argument to be spurious at best, because when the report by Dr. Tross is read as a whole, it is clear that he is merely recommending the chronological order of the surgical procedures which need to be performed.