Maldonado v. Connecticut Container

The claimant was represented by John J. Esposito, Jr., Esq., 373 Humphrey Street, New Haven, CT 06511.

The respondent-employer and CNA Insurance Company were represented by Cori-Lynn Webber, Esq. and Kevin M. Blake, Esq., Law Offices of Grant H. Miller, Jr., 29 South Main Street, Suite 310N, West Hartford, CT 06107-2445.

The respondent Zurich American Insurance Company was represented by Kevin Maher, Esq. and James L. Sullivan, Esq., Maher & Williams, P.O. Box 269, Bridgeport, CT 06601.

The respondent Wausau Insurance Company was represented by David D. Chapman, Esq., Law Offices of Larry H. Lewis, 639 Research Parkway, Meriden, CT 06450.

This Petition for Review from the March 25, 1993 Finding and Award of the Commissioner for the Third District was heard March 25, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Angela L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE FRANKL, CHAIRMAN. The trial commissioner found that the claimant’s lumbar surgery was causally related to the claimant’s August 18, 1988 compensable injury and concluded that the respondent-insurer CNA Insurance Company (CNA) is responsible for the cost of surgery and compensation benefits. The commissioner rejected CNA’s argument that repetitive trauma subsequent to the 1988 injury, and while the respondent-employer was insured by CNA and other insurers, constituted a new injury.

On appeal, CNA asks that we review the commissioner’s determination that the claimant’s 1992 medical condition was due to his 1988 injury and not caused by later workplace repetitive trauma. We affirm the trial commissioner.

In a November 13, 1992 medical note, the claimant’s treating physician, Dr. Michael P. Connair, states: “All of [the claimant’s] pain symptoms began following a work-related injury in 1988. Though he has been working most of the time since the injury, he has had no other significant injuries to his lumbar spine. He does stress his spine during the course of his job. His present condition and the proposed surgery have to be attributed to that work-related injury of 1988.” Claimant’s Exhibit C (Emphasis added.) CNA, however, relies on a letter written by Dr. Connair the following month which discusses an “aggravation” at work in April of 1990 and workplace “repetitive stress” subsequent to the 1988 injury and which, CNA contends, supports the position it urges in this appeal.

“Determining whether an injury was a substantial increase from a preexisting injury or was a new injury is a question of fact for the commissioner. . . . It is clear that under General Statutes Sec. 31-301(a) and Sec. 31-301-8 of the Regulations of Connecticut State Agencies [our] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [We are] obliged to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . [T]he 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. . . .” (Citations omitted; internal quotation marks omitted.) Muldoon v. Homestead Insulation Co., 33 Conn. App. 695, 699, cert. granted, 229 Conn. 915 (1994). Thus, it is for “the trial commissioner to resolve any alleged inconsistencies or contradictions in the evidence.” Mellor v. Pleasure Valley Mobile Homes, 11 Conn. Workers’ Comp. Rev. Op. 270, 272, 1393 CRB-2-92-3 (1993). Where, as here, the commissioner’s finding that the claimant’s condition was due to a prior compensable injury as opposed to a new workplace injury has support in the evidence, we may not alter that finding or disturb the commissioner’s ultimate conclusion. Muldoon v. Homestead Insulation Co., supra, 699-700.

We, therefore, affirm the trial commissioner and deny the appeal.

Additionally, pursuant to Sec. 31-301c(b), we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.