St. John v. Gradall Rental et al.

The claimant was represented by Walter C. Bansley, III, Esq., Attorney at Law, 742 Chapel Street, New Haven, CT 06510.

The respondents Gradall Rental and Shelby Insurance were represented by Ralph A. Russo, Esq. 49 Welles Street, Suite 212, Glastonbury, CT 06033.

The respondents Earth Technology, Inc. and AIG Claim Services, Inc. were represented by Anne Kelly Zovas, Esq., Pomeranz, Drayton and Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondents Fleet Construction and American Protection Insurance Company were represented by Thomas G. Cotter, Berchem, Moses & Devlin, 75 Broad Street, Milford, CT 06460.

The respondents Camputaro Excavation Company and CNA Insurance Companies were represented by James Scully, Esq. Cooney, Scully & Dowling, Hartford Square North, 10 Columbus Boulevard, Hartford, CT 06106-1944.

The respondents Water Construction Company and CNA Insurance Companies were represented by Elizabeth Zaccardi, Esq. and Mailene Sierra Vazquez, Law Offices of Cynthia Jaworski, 55 Capital Boulevard, Suite 210, Rocky Hill, CT 06067 did not appear at oral argument, however, relied on their written brief.

The respondents Tilcon Connecticut Inc., and Pacific Employers Insurance Company, were represented by Eric Bartlett, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

The respondents J.F. Bartlett & Sons, Inc. and Zurich North America were represented by Brian L. Smith, Esq., D’Attello, Shields & La Bella, 500 Enterprise Drive, Suite, 4B, Rocky Hill, CT 06067.

The respondents Giordano Construction Company, Inc. and Atlantic Mutual were represented by Maureen E. Driscoll, Esq., Maher & Williams, P.O. Box 550, Fairfield, CT 06824.

The respondents C. Brito Construction Company and Royal Purple Corporation were unrepresented by counsel.

This Petition for Review from the August 13, 2004 Finding and Award of the Commissioner acting for the Third District was heard February 18, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, Gradall Rental and Shelby Insurance, have filed a timely appeal from the August 13, 2004 Finding and Award of the Commissioner acting for the Third District. We affirm the decision of the trial commissioner.

The pertinent facts are as follows. On April 19, 1991 the claimant was working for the respondent-Gradall Rental as a heavy equipment operator when he got out of the machine he was working on in order to assist a person with pushing a piece of heavy equipment. In the process the claimant sustained an injury to the L3-L4 level of his spine. A voluntary agreement was approved by the Commissioner on October 10, 1991 with an April 19, 1991 date of injury. On July 20, 1999 a second voluntary agreement was approved obligating the employer to pay 39 weeks of permanent partial disability benefits. The claimant alleges he did not sustain any additional injuries, work related or not, between 1991 through the date of the formal hearing. The claimant did not file any additional claims against subsequent employers.

The claimant stated that his back injury has been an on-going problem since the April 19, 1991 accident. Dr. Kenneth Kramer has been the claimant’s sole treating physician since that date. Dr. Kramer’s office notes and medical reports reflect periodic flare-ups of the “old, underlying condition(s) which gave rise to the April 19, 1991 claim.” Findings, ¶ 13. On December 3, 2002, Dr. Kramer testified that “based upon reasonable medical probability, the claimant’s April 19, 1991 date of injury is a substantial contributing factor to his current back condition.” Findings, ¶ 16. Dr. Kramer “totally disabled the claimant from February 27, 2002 through April 3, 2002.” Findings, ¶ 17.

Dr. Robert Margolis performed an independent medical examination of the claimant on November 21, 2000. Respondents’ Exhibit 1, December 15, 2003, Deposition of Dr. Robert Margolis, p. 4. Dr. Margolis opined that the claimant’s continued need for treatment was due to repetitive trauma from the claimant’s line of work.

The trial commissioner found that the claimant suffered from a single injury to his back on April 19, 1991. She found that the claimant had not suffered a new injury since the April 19, 1991 incident and that his need for on-going treatment was due to flare-ups or recurrences of the original injury. The trier found that the claimant was temporarily totally disabled from February 27, 2002 through April 3, 2002 as a result of the April 19, 1991 injury. Therefore, she ordered a lump sum payment for temporary total disability benefits for that period. The trial commissioner dismissed the claims against the remaining co-respondents.

The respondents, Gradall Rental and Shelby Insurance (hereinafter “the respondents”), have appealed this determination.1 The respondents assert that the trial commissioner did not address their defense, therefore, they were deprived of due process rights. The respondents’ defense was that the “claimant sustained a new injury or intervening cause, i.e., due to repetitive trauma superimposed on a pre-existing condition.” Appellant’s Brief, p. 4. At issue at the formal hearing was whether the claimant was entitled to temporary total disability benefits for the period of February 27, 2002 through April 3, 2002. Findings, p. 2, Issue (3). We believe that the trier did not ignore the respondents’ defense, but instead utilized her discretion to make factual findings that did not support that defense.

The trial commissioner has the latitude to review the medical opinions in a case and determine which she believes to be most credible. Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003); Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002). We will not retry a case on review, instead we examine the trial commissioner’s determinations in order to determine whether they are without evidentiary support, contrary to the law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Bernardo v. Capri Bakery, 4570 CRB-3-02-9 (February 10, 2004).

In the respondents’ view the trier erred in relating the problems the claimant was having with his back to the 1991 injury. The respondents contend that there is no evidence in the case to support this conclusion. We disagree. Dr. Kramer testified that “the preponderance of his lower back problem I would attribute to the [1991] injury and the preexisting history of surgery.” Claimant’s Exhibit D, December 4, 2003, Deposition of Dr. Kenneth M. Kramer, p. 12. Similarly, he explained that the claimant’s “present condition is predominately due, in all probability, to the injury and his previous surgery.” Id., p. 26. The respondents assert that the claimant’s condition in 2002 was due to repetitive trauma superimposed upon said pre-existing condition causing a new impairment. Respondents’ Brief. However, Dr. Kramer specifically discounted a repetitive trauma diagnosis. He explained that the work the claimant had been doing since the 1991 incident did not accelerate the claimant’s condition anymore than other activities of the claimant’s daily living. Id., p. 22. Evidently, the trier was persuaded by Dr. Kramer’s opinion. Additionally, the trier was persuaded by the claimant’s testimony that his back had been an ongoing problem since the 1991 injury.

By contrast, the trier simply chose not to adopt Dr. Margolis’ opinion. We note, Dr. Margolis himself admitted that his opinion of the claimant’s condition in 2002 was somewhat speculative given the fact that he had only examined the claimant once several years prior. Respondents’ Exhibit 1, supra, p. 23-24. For these reasons, we find Dr. Kramer’s opinion, as well as the claimant’s testimony, reasonably supports the finding that the claimant’s claim for temporary total disability was a result of a single, specific injury to his back on April 19, 1991 and we will not overturn that finding on review.

Therefore, we affirm the August 13, 2004 Finding and Award of the Commissioner acting for the Third District. Insofar as benefits may have remained due and owing to the claimant pending the outcome of this appeal, we are required to order the payment of interest pursuant to § 31-301c(b) C.G.S.

Commissioners Stephen B. Delaney and Leonard S. Paoletta concur.

1 In its Reasons of Appeal the respondents raised a due process issue contending that the trial commissioner improperly made orders for payment of physical therapy and a gym membership which was not part of the formal hearing and for which no evidence was submitted. However, the respondents never briefed this issue nor raised it at oral argument, therefore, it is deemed to be abandoned. See, Luce v. UTC/Pratt & Whitney, 3080 CRB-1-95-6 (December 16, 1996), aff’d, 47 Conn. App. 909 (1997)(per curiam), aff’d, 247 Conn. 126 (1998); Maio v. L.G. Defelice, Inc., 13 Conn. Workers’ Comp. Rev. Op. 197, 1734 CRB-5-93-5 (March 22, 1995). We do note that the issue of physical therapy and gym membership was raised at the formal hearing and the prescriptions for both were exhibits in the record below. March 9, 2004 Transcript, p. 14; Claimant’s Exhibit C. BACK TO TEXT