Talamona v. Dalton Enterprises, Inc.

CASE NO. 3684 CRB-05-97-09

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 5, 1998

EMIL J. TALAMONA

CLAIMANT-APPELLEE

v.

DALTON ENTERPRISES, INC.

EMPLOYER

and

ST. PAUL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Richard Gross, Esq., Cantor, Floman, Russell, Gross, Kelly & Amendola, 378 Boston Post Rd., P.O. Drawer 966, Orange, CT 06477.

The respondents were represented by Timothy Zych, Esq., Smith, Ketaineck & Musco, 9 Washington Ave. Suite 3-A, P.O. Box 5035, Hamden, CT 06518-0035.

The Second Injury Fund was represented by Michael Belzer, Esq., Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the September 3, 1997 Finding and Award of the Commissioner acting for the Fifth District was heard May 8, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the September 3, 1997 Finding and Award of the Commissioner acting for the Fifth District. In that decision the trial commissioner concluded that the claimant’s right hand condition was caused by a prior compensable left hand injury which occurred on October 1, 1989. In support of their appeal, the respondents contend that the claimant’s right hand condition was caused by repetitive trauma at work and therefore should be deemed a new injury. We find no error.

The trial commissioner found the following relevant facts. The claimant commenced employment with the respondent employer in 1971 and performed a variety of physical jobs. On October 1, 1989, while lifting a fifty-five gallon drum, the claimant sustained an injury to his left, non-master hand. This injury was accepted by the respondents pursuant to an approved voluntary agreement. On March 19, 1991, the claimant underwent surgery for his left hand as a result of the compensable injury. The claimant was released to light duty on July 15, 1991, and returned to work for the employer. The claimant had difficulty performing the light duty work for the employer and performed his work predominately with his right hand. He received temporary partial disability benefits during this time. The claimant testified that he left his employment on November 1, 1991 because he was unable to perform the work duties.

The claimant reached maximum medical improvement with respect to his left hand on December 17, 1991 and was compensated for a thirty-two percent permanent partial disability. The claimant treated with Dr. Salomon on September 14, 1992. Dr. Salomon diagnosed the claimant with right carpal tunnel syndrome and ulnar nerve compression of both the elbow and right wrist area. Dr. Salomon performed surgery on the right hand and wrist on November 2, 1994, and on the claimant’s left hand on February 9, 1995. Dr. Salomon opined with reasonable medical probability that the claimant’s right hand complaints evolved subsequent to the left hand surgery and were a result of the overuse of the right hand in conjunction with the immobilization of the left hand. (Finding No. 36; 10/22/96 Depo. at p. 35).

The respondents argue that the trial commissioner erred in concluding that the claimant’s right hand condition was a result of the compensable left hand injury. Whether an injury arose out of and in the course of the employment requires a factual determination. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). The power and duty of determining the facts rests on the commissioner as the trier of fact. This fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In the instant case, the trial commissioner’s conclusion that the claimant’s right hand condition was caused by the October 1, 1989 injury is fully supported by the evidence, including Dr. Salomon’s medical opinion which was based upon reasonable medical probability. (Finding No. 36; 10/22/96 Depo. at p. 35). The respondents argue that the claimant’s right hand condition constituted a repetitive trauma injury, and thus that the date of injury was the claimant’s last date of employment.1 We have held that respondents are liable to pay compensation for a compensable injury, including the medical sequelae of that injury. For instance, in McVety v. Sidetex Corp., 14 Conn. Workers’ Comp. Rev. Op. 340, 2050 CRB-3-94-5 (Sept. 20, 1995), aff’d. 43 Conn. App. 912 (1996) (per curiam), the claimant sustained a compensable injury to his right leg which required amputation below the knee. The claimant’s resulting use of crutches caused a vascular disorder in his right hand, which constituted a compensable sequelae of that injury. Moreover, our Supreme Court has described a compensable workers’ compensation injury as including “the entire transaction to which the injury is traced, not only the operative causes but their effect on the body of the injured person.” Hernandez v. Gerber Group, 222 Conn. 78. 83 (1992) (quoting De la Pena v. Jackson Stone Co., 103 Conn. 93 (1925)).

Similarly, in Owens v. R.R. Donnelley & Sons, 14 Conn. Workers’ Comp. Rev. Op. 28, 1892 CRB-2-93-11 (May 3, 1995), the claimant sustained a compensable knee injury in 1980. Subsequently, in 1988 the claimant again became disabled “due to a back condition that was caused by an altered gait resulting from the original leg injury.” Id. at 29. In Owens, the Board explained:

Whether an injury is a recurrence of a prior injury pursuant to 31-307b or a new injury is a factual determination within the purview of the trial commissioner. Here, the commissioner concluded that the claimant’s back injury was caused by the original leg injury, but went on to state that her case was not the recurrence of a leg injury. Rather, he compared the claimant’s incapacity to that of the plaintiff in Hernandez v. Gerber Group, 222 Conn. 78 (1992), where our Supreme Court determined that a preexisting heart condition was at the beginning of the causal chain of the plaintiff’s injuries, and allowed assignment of liability for the subsequent injury to the Second Injury Fund. Unlike Hernandez, in this case the original injury was compensable, so the employer remained liable for its causally related sequelae.”

Owens, supra, at 29-30 (emphasis added) (citations omitted).

In the instant case, the record supports the trial commissioner’s conclusion that the claimant’s right hand condition was caused by the compensable left hand injury. Accordingly, the trial commissioner properly determined the date of injury to be October 1, 1989, the date of the original injury. See Owens, supra.

In further support of their appeal, the respondents argue that their Motion to Correct should have been granted in order for the findings to indicate that the claimant’s right hand condition constituted a new repetitive trauma injury. On review of the denial of a Motion to Correct, this board may not alter a commissioner’s findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed material facts. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995). A Motion to Correct also may be denied properly where the legal conclusion of the commissioner would not be altered by the substituted findings. Id.; Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994). We find no error in the commissioner’s denial of the claimant’s Motion to Correct.

The trial commissioner’s decision is affirmed.

Commissioners Michael S. Miles and Stephen B. Delaney concur.

1 The claimant’s last date of employment, November 1, 1991, would produce a smaller average weekly wage than the original date of injury, October 1, 1989. (See Findings No. 5, 14, and 15). BACK TO TEXT