Neville v. Baran Institute of Technology et al.

CASE NO. 5383 CRB-8-08-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 24, 2009

ANTHONY NEVILLE

CLAIMANT-APPELLEE

v.

BARAN INSTITUTE OF TECHNOLOGY

EMPLOYER

and

ZURICH NORTH AMERICA

INSURER

RESPONDENTS-APPELLANTS

and

CONNECTICUT STEEL CORPORATION

EMPLOYER

and

ARROWPOINT CAPITAL CORPORATION

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Robert J. Sokolowski, Esq., Law Offices of Robert J. Sokolowski, 1 Barristers’ Court, Meriden, CT 06451.

The respondents Baran Institute of Technology and Zurich American Insurance Co. were represented by Michael A. Burton, Esq., Sharp, Shields & Smith, 500 Enterprise Drive, Suite 4B, Rocky Hill, CT 06067.

The respondents Connecticut Steel Corporation and Arrowpoint Capital Corporation were represented by Maribeth McGloin, Esq., Maher & Williams, P.O. Box 550, Fairfield, CT 06824.

This Petition for Review from the September 15, 2008 Finding and Award of the Commissioner acting for the Eighth District was heard March 27, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. This appeal concerns the applicability of Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003) to a scenario where the claimant suffered two separate compensable injuries. The trial commissioner in this matter determined that since a second injury occurred the insurance carrier on the risk for that injury was responsible for the claimant’s cervical spine injuries subsequent to that date. The respondent Zurich North America (“Zurich”) has appealed, arguing the evidence in the record does not support the Finding and Award.

We have reviewed the record in this matter as well as the text of the applicable statute, § 31-349(a) C.G.S. Upon review, we have determined the trial commissioner did not have sufficient probative evidence to justify the result reached in the Finding and Award, since apportionment may only be ordered when a claimant has sustained a disability “which is materially and substantially greater than the disability that would have resulted from the second injury alone.” We determine there is no evidence on the record which would sustain such an award for the claimant’s cervical condition, and reverse the trial commissioner on that issue.

We will summarize what was a lengthy Finding and Award, which details three separate work-related injuries and no fewer than five surgical procedures. The claimant suffered his first cervical spine injury on September 25, 1994 while employed by Connecticut Steel. In December of 1994 he underwent his first cervical fusion. Following that surgery the claimant was awarded a 20% permanent partial disability award and returned to work with restrictions.

The claimant suffered another injury on January 14, 1999 while working at Connecticut Steel. He had a number of surgeries subsequent to that event. The claimant testified to a September 11, 2002 cervical spine surgery, a November 24, 2003 cervical spine surgery and a June 8, 2005 cervical spine surgery. The claimant’s treating physician, Joseph Aferzon. M.D. also performed a posterior fusion surgery at C-4 through C-6 on November 24, 2004. On May 12, 2005 Commissioner White ordered Connecticut Steel’s carrier, now known as Arrowpoint Capital, (“Arrowpoint”) to pay the claimant’s unpaid medical bills, temporary total disability and attorney’s fees regarding the claimant’s cervical spine. The claimant has testified that he did not receive a permanent partial disability rating following any of these aforementioned surgeries.

The 2005 order did not address the claimant’s lumbar spine. MRIs conducted in September 1999 and January 2000 showed a broad-based disc bulge with spinal stenosis. An April 2, 2003 Respondents’ Medical Examination included an MRI that did not demonstrate any significant lumbar abnormalities. In May 2004 the claimant presented to a physician at the Hospital for Special Care that he had neck pain radiating into the arms and tingling, numbness and weakness in both legs. In 2006, after he said he was experiencing blackout episodes the claimant was referred to a neurologist, Dr. Sujai Nath. In 2006 the claimant received epidural injections at L4-5 to address pain issues from Dr. Annette Macannuco and Dr. Jonathan Kost. The claimant testified that since 1999 he had taken various medications for back pain, neck pain and balance problems.

The claimant testified that in 2005 his employer, Connecticut Steel, was bought by another firm, NuCor. As a result he testified he was let go in the ensuing company restructuring. In September 2006 the claimant started working for the respondent Baran Institute of Technology as a full time electrical instructor. The claimant had not reached maximum medical improvement and was earning less at Baran than he earned at Connecticut Steel. Therefore, the claimant received temporary partial disability benefits. On March 9, 2007 the claimant was involved in an incident while working at Baran.

The claimant testified that a 15 x 20 inch electrical panel dropped from a height of 15 or 20 feet and bounced off his hard hat striking his hand. The on-site EMT observed only a hand laceration. The EMT, Brian Michaud, did not report the claimant saying his head or neck had been hurt in the incident. The on-site EMT also reported the claimant’s hard hat was undamaged. The claimant was brought to St. Francis Hospital with neck pain, low back pain, and weakness in the right lower and right upper extremities. The claimant testified that subsequent to being treated at St. Francis he spent a week and a half at Mt. Sinai undergoing physical therapy. The claimant testified that since the March 9, 2007 accident he is using a cane, said he has additional pain in his right leg, has additional left sided neck pain, and has increased his pain medication.

Subsequent to the March 9, 2007 accident Arrowpoint filed a Form 36 contending that accident was a subsequent intervening event relieving it of responsibility for the claimant’s injuries. The Form 36 was granted. Zurich (Baran’s insurance carrier) and Arrowpoint agreed during the pendency of litigation that Zurich would pay indemnity benefits on a “without prejudice” basis; while Arrowpoint would pay for the medical treatment on a “without prejudice” basis. Zurich argues that while the March 9, 2007 accident occurred, it has accepted only the injury to the claimant’s hand, and contested compensability of the neck and back.

The various physicians offered testimony on the impact of the March 9, 2007 accident.

Dr. Aferzon testified that while the claimant had neck problems prior to the incident that the March 9, 2007 event exacerbated the claimant’s soft tissue injury to the neck. He described this as a temporary aggravation of the claimant’s pre-existing neck condition and that the claimant returned to his pre-exiting baseline condition within a year of the accident. He also testified that any subsequent treatment to the claimant’s neck is due to the 1999 injury. He also testified that the claimant’s cervical fusion was fully fused after the 2007 accident and he did not see evidence of new structural damage from the event.

The respondents had the claimant examined by Dr. Stephan Lange. Dr. Lange testified the claimant suffered a cervical sprain in 2007 superimposed on a significant pre-existing neck injury. Dr. Lange described this as a temporary aggravation and also opined the 2007 injury did not contribute in any substantial way to increase the claimant’s back disability. Based on examination of MRIs taken in 2001 and 2007, Dr. Lange attributed the claimant’s back condition to the progression of pre-existing degenerative disc disease.

Based on this evidence, the trial commissioner found the claimant credible and persuasive.1 He also found “the opinion of Dr. Lange credible and persuasive” and “found the opinion of Dr. Aferzon credible and persuasive regarding the claimant’s need for lumbar surgery because of the new symptoms relating to sciatica.” The trial commissioner also concluded the claimant was injured on March 9, 2007 when a dropped panel glanced off his hard hat and hit his hand. While the commissioner concluded the claimant suffered a temporary aggravation of his cervical spine injury (Finding, ¶ pp) the commissioner also concluded that Zurich was responsible for benefits now related to the cervical spine. Finding, ¶ qq. While the trial commissioner concluded the claimant had a preexisting lumbar spine injury as of March 9, 2007, noting the MRI studies and the epidural injections, he also concluded the 2007 incident “caused a sciatica condition that had not previously existed.” Finding, ¶ ss.

Relying on those aforementioned conclusions, the trial commissioner ordered Zurich to pay the claimant’s lumbar spine benefits from March 9, 2007 until a Form 36 was approved by the commission. He also ordered Zurich to pay all benefits in connection with the hand injury, and to pay all cervical spine benefits from March 9, 2007 until a Form 36 was approved by the commission. Zurich has taken an appeal from this order as related to the relief sought for the claimant’s cervical spine injuries.

Zurich’s argument is that the trial commissioner improperly relied on the Hatt case in this matter. Zurich argues that in order to implement the burden-shifting called for under Hatt the second injury must cause the claimant to be left in worse condition than if he had merely suffered only the first injury. Under Zurich’s approach, the trial commissioner cannot place the burden on the carrier for the second injury when the claimant suffers only a temporary aggravation of symptoms. We believe this is the appropriate interpretation of the Hatt decision.

This dispute is essentially a matter of statutory interpretation. We must ascertain whether § 31-349(a) C.G.S. was properly applied by the trial commissioner. The relevant text of this statute is as follows.

Sec. 31-349. Compensation for second disability. Payment of insurance coverage. Second Injury Fund closed July 1, 1995, to new claims. Procedure. (a) The fact that an employee has suffered a previous disability, shall not preclude him from compensation for a second injury, nor preclude compensation for death resulting from the second injury. If an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone, he shall receive compensation for (1) the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability, and (2) necessary medical care, as provided in this chapter, notwithstanding the fact that part of the disability was due to a previous disability. For purposes of this subsection, “compensation payable or paid with respect to the previous disability” includes compensation payable or paid pursuant to the provisions of this chapter, as well as any other compensation payable or paid in connection with the previous disability, regardless of the source of such compensation. (Emphasis added).

In considering this statute we must apply the terms of § 1-2 z C.G.S. wherein we are limited to applying the “plain meaning” of statutes. As we held in Verrinder v. Matthew’s Tru Colors Painting & Restoration, 4936 CRB-4-05-4 (December 6, 2006)

General Statutes § 1-2z provides that “[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”

See also, First Union National Bank v. Hi Ho Shopping Ventures, 273 Conn. 287, 291 (2005).

The “plain meaning” of the statute governing second injuries is that for the employer or insurer on the risk at the time of the second injury to become solely liable, the resulting disability must be “permanent” and “materially and substantially greater” than the disability resulting from the initial injury. As a result, we cannot impose the terms of Hatt against the party responsible for a second injury if the second injury results in only temporary disability. See Hatt, supra, 307- 309. Since the statute is written in conjunctive fashion, in order to apply Hatt we must also find, even if the additional disability is permanent, that the claimant’s resulting disability is “materially and substantially greater” than the disability attributable to the second injury.

This requires us to ascertain if the trial commissioner’s conclusions were consistent with the statute and supported by the evidence. We recently restated the standard for such review in Dellarocco v. Old Saybrook, 5324 CRB-8-08-2 (January 16, 2009).

On appeal we have a limited scope of review, as our standard of review is deferential to the finder of fact. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Daniels v. Alander, 268 Conn. 320, 330 (2004).

This presumption, however, can be challenged by the argument that the trial commissioner did not properly apply the law or has reached a finding of fact inconsistent with the evidence presented at the formal hearing. As we held in Caraballo v. Specialty Foods Group, Inc./Mosey’s Inc., 5082 CRB-1-06-4 (July 3, 2007).

In Sullivan v. Madison-Police Department, 4893 CRB-3-04-12 (June 9, 2006) we explained that although we are deferential to the finding of facts reached at the trial level, our appellate review must consider whether the facts found are supported by competent evidence and are legally consistent with the ultimate outcome of the case.

While this board cannot retry the facts of this case, it must review the sufficiency of the evidence against the legal standards required for granting an award. “The power and duty of determining the facts rests with the commissioner, the trier of facts. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457, 78 A.2d 339 (1951). The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Tovish v. Gerber Electronics, 32 Conn. App. 595, 602 (1993). Id.

We also noted in Sullivan that it is our responsibility as an appellate body to correct a commissioner’s misapplication of the law to the subordinate facts. See Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003).

Therefore, we must determine if the evidence supports the trial commissioner’s conclusion that the second injury was subject to the standard in Hatt. On that point, we find there is no competent evidence cited in the trial commissioner’s Finding and Award which would be consistent with finding that the second injury resulted in a permanent disability to the claimant’s cervical spine materially greater than that of the prior disability. While the trial commissioner found Dr. Aferzon credible and persuasive, he opined only that the March 9, 2007 incident was a “temporary exacerbation” of the claimant’s initial cervical injury and that the claimant returned to his pre-existing baseline condition, Finding, ¶ 37.

The physician who examined the claimant on Zurich’s behalf, Dr. Stephan Lange, reached a similar conclusion. Dr. Lange concluded the claimant returned to baseline status as of September 18, 2007 and the March incident did not contribute in a substantial way to the claimant’s back disability. Finding, ¶ 46.

Counsel for Arrowpoint argues that notwithstanding the absence of expert testimony stating that the claimant’s cervical condition was made permanently worse, that the trial commissioner could rely on the claimant’s subjective opinion that this had occurred. Appellee’s Brief, p. 5-6. We disagree.

In their recent decision in Marandino v. Prometheus Pharmacy, 105 Conn. App. 669 (2008) the Appellate Court restated that a determination as to the causation of injuries must be established by “competent evidence.” (Emphasis in original) Id., at 677-78. In Marandino the Appellate Court concluded that the testimony of the claimant as to the link between a fall down accident and her injuries was inadequate, and that such an issue created “the need for expert medical evidence” Id., at 678-679. Citing DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 99 Conn. App. 336, 343 (2007), the Appellate Court concluded the expert opinion that supported her claim “was not competent evidence on which the commissioner could rely.”

We believe that pursuant to Marandino expert testimony was necessary to establish that the second injury created an additional permanent disability. The findings relied on by the trial commissioner do not support such a conclusion, as neither Dr. Aferzon nor Dr. Lange ever offered such an opinion. Indeed, their opinions were adverse to such a conclusion. As a result, consistent with our decision in Dellarocco, supra, we must reverse order ¶ 3 and herein determine that Arrowpoint retains responsibility for the cervical spine injuries.2 3

For the reasons stated herein, we must reverse the Finding and Award insofar as it makes Zurich responsible for the claimant’s current cervical spine condition.4 We affirm the appeal and determine Arrowpoint is the responsible party for the claimant’s cervical spine condition after September 18, 2007. We affirm the Finding and Award in all other respects.

Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.

1 A Motion to Correct was granted on this point. Corrections were granted on a number of other relevant points, including, Finding, ¶ aa, wherein the commissioner concluded the dropped panel in 2007 glanced off the claimant’s hard hat. BACK TO TEXT

2 We also note that Finding, ¶ pp is legally inconsistent with the Commissioner’s Finding, ¶ qq, finding that the Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003) decision makes Zurich responsible for the cervical injury. The evidence on the record does not support this conclusion. BACK TO TEXT

3 The trial commissioner as part of the corrections approved in the Motion to Correct, ordered Zurich to reimburse Arrowpoint for all medical benefits paid to or on behalf of the claimant on and after March 9, 2007. Consistent with Finding, ¶ pp, to the extent this order compelled reimbursement of expenses related to treatment of the claimant’s cervical spine it is herein reversed. BACK TO TEXT

4 Zurich has conceded it is the responsible party for all benefits attributed to the claimant’s temporary aggravation. Appellants’ Brief, p. 6. The trial commissioner concluded the claimant returned to “baseline” status as of September 18, 2007. Finding, ¶¶ pp. This decision shall not impact such benefits attributed to the temporary aggravation prior to that date. BACK TO TEXT