Opinion
CASE NO. 939 CRD-7-89-11
FEBRUARY 26, 1991
The claimant was represented by Judith Rosenberg, Esq., Wofsey, Rosen, Kweskin Kuriansky.
The respondents Marriott Food Services and National Fire Ins. Co. were represented by Thomas H. Cotter, Esq., Cotter, Cotter Sohon.
The respondents Trusthouse Forte Food Services and Royal Ins. Companies were represented by James Hughes, Esq., and Thomas J. Hickey Esq., McNamara Kenney.
This Petition for Review from the October 30, 1989 Finding and Award of the Commissioner for the Seventh District was heard September 28, 1990 before a Compensation Review Division panel consisting of the Commission, Chairman, John Arcudi, and Commissioners Frank Verrilli and George Waldron.
OPINION
This appeal features a conflict between employers. Claimant injured his back, neck and head February 16, 1987 in the employ of Marriott Food Services. As a result he was paid temporary total disability benefits for same time and also 33.8 weeks of specific benefits for a 6.5% permanent partial disability of the back.
He returned to work in September, 1987 and then worked for three different employers, the last being Trusthouse Forte Food Services, Inc. for whom he began working May 31, 1988. On October 21, 1988 while working at Trusthouse Forte he attempted to lift a 30 gallon plastic garbage bag filled with refuse and experienced back pain. The pain was of such intensity that the claimant had to leave work. He continued to lose work thereafter. Between September, 1987 and October, 1988, this employee continued to have some back symptoms but had been able to continue work.
The commissioner found that the October 21, 1988 events were a recurrence of the September, 1987 compensable injury and therefore ordered Marriott, and its insurer National Union Fire Insurance to pay benefits and medical expenses. National Union and Marriott have appealed.
Section 31-307b, C.G.S. and Sec. 31-349, C.G.S. are the relevant statutory provisions governing the situation. Sec. 31-307b is as follows:
Sec. 31-307b. Benefits after relapse from recovery. recurrent injuries. If any employee who receives benefits under section 31-307 returns to work after recovery from his injury and subsequently suffers total or partial incapacity caused by a relapse from the recovery from, or a recurrence of, such injury, such employee shall be paid a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of the original injury or at the time of his relapse or at the time of the recurrence of such injury,
Sec. 31-349 states in part:
Compensation for second disability. Payment of insurance coverage. (a)The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, . . . If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that . . . from the second injury alone, he shall receive compensation for the entire amount of disability, . . . The employer by whom the employee is employed at the time of the injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability.
We interpreted a different provision of Sec. 31-349 in Hehl v. Kimberly Clark Corp., 8 Conn. Workers' Comp. Rev. Op. 38, 774 CRD-7-88-10 (1990), but Hehl is nonetheless pertinent to the instant case. In Hehl there was an original 1980 injury and subsequent disabilities in 1986 and 1987. The question was whether the 1986 and 1987 occurrences were new injuries or recurrences of the 1980 injury. We stated, "The acknowledged . . . previous injury contributed to the new permanent disability, but the new additional permanent disability would not have occurred but the new additional permanent disability would not have occurred but for the repetitive trauma subsequent to May, 1984," id., 40.
Here the same issue arises. If the October 21, 1988 events constituted a Sec. 31-307b recurrence of the September, 1987 injury, as found by the Seventh District, then the first employer Marriott must pay. If however these were new identifiable work related occurrences without which there would have been no disability on October 21, 1988, then the new employer Trusthouse must pay under Sec. 31-349.
Ordinarily, whether claimant sustained a recurrence of a previous compensable injury is a conclusion for the trier of fact to make, Janov v. General Electric Co., 4 Conn. Workers' Comp. Rev. Op. 44, 491 CRD-4-86 (1987). But that conclusion needs to be based on the evidence, Fair v. People's Savings Bank, 207 Conn. 535 (1988).
The commissioner below in paragraph #15 of his Finding cited the only medical evidence before him on the issue was that of the Stamford neurosurgeon, Dr. James Prokop:
"I feel in all reasonable medical probability that Mr. Colas suffered an exacerbation of the previous and ongoing injury when he hurt his back on October 21, 1988. I feel that it is much more likely that the injury caused an exacerbation of his current back problem rather than a new and separate problem."
What Dr. Prokop seems to be saying in that excerpt is that Mr. Colas' 1988 pain symptoms would not have been what they were without the 1987 incident's having occurred before. As a scientist, the doctor is discussing the medical causation chain of the 1988 symptoms. The doctor's evidence characterizes the first event in the chain of events as the causative factor.
But legal causation and medical causation are not necessarily identical concepts. Venerable doctrines in the common law of torts as reflected in Sec. 31-349 ascribe to the last event in the chain the principal causative effect. The definitions part of chapter 568, Sec. 31-275(8), defines injury to include "accidental injury which may be definitely located as to the time when and the place where the accident occurred." Is not the October 21, 1988 attempt by Colas to lift the garbage bag such a new injury definitely located in time and place and therefore the responsibility of the last employer Trusthouse?
Or did the October 21, 1988 symptoms occur as an inevitable progression of the events set in motion by the February 16, 1987 injury without any new intervening proximate cause, i.e. would they have occurred at the time and place whether or not Colas attempted to lift the garbage bag? We don't think Doctor Prokop's evidence really answered the problem. He said "Colas suffered an exacerbation" and "he hurt his back on October 21, 1988." In legal causation terms are not the "exacerbation" and the October 21, 1988 hurt new discrete identifiable events, the last events in the causation chain? Is it the new 1988 event which is the agent of the exacerbation or was the 1987 injury the sole agent of the exacerbation without any causative effective form the attempt to lift the garbage bag?
Because we consider the evidence equivocal and because claimants' injury or injuries are admittedly compensable, no matter which employer is liable, we must remand for further proceedings.
The respondents have raised another issue, i.e. the admissibility into evidence of a February 27, 1989 letter from claimant's counsel. That letter contains a statement that the claimant "suffered a relapse and/or exacerbation and/or new injury of his back" while in the employ of Trusthouse in October, 1988. Apparently Trusthouse had failed to file a notice to contest liability within the permissible time period under Sec. 31-297(b).
There really was no need to introduce that document as an evidentiary exhibit. It constituted a notice of claim under Sec. 31-294, and the commissioner should have administratively noticed it. However, the letter itself because of its language was not a direct assertion of a claim against Trusthouse since it obviously comprehended alternative theories of recovery. Hence preclusion would not lie even if it were claimed by the employee, the only one who would have a right to assert the irrebuttable presumption of Sec. 31-297(b); so the failure to admit the letter into evidence or to take administrative notice of it would not have affected the result.
For the reasons cited above we sustain the appeal and remand to the Seventh District for further proceedings.
Commissioners Frank Verrilli and George Waldron concur.