Opinion
CASE NO. 911 CRD-8-89-8
MARCH 1, 1991
The claimant was represented by Brian Farrell, Esq.
The respondent Cigna was represented by Jason Dodge, Esq., Pomeranz, Pomeranz, Drayton Stabnick.
The respondent G.A.B. was represented by Jeffrey Schwartz.
This Petition for Review from the August 30, 1989 Finding and Award of the Commissioner for the Eighth District was heard June 29, 1990 before a compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Thomas White, Jr. and James Metro.
OPINION
Claimant's March, 1976 back injury was recognized for the employer American Cyanamid by General Adjustment Bureau (G.A.B.) in a Voluntary Agreement approved by the Third District January 27, 1977 Thereafter claimant alleged he suffered recurrences of back pain circa March 23, 1982 and June 17, 1985.
The Eighth District Commissioner subsequently held proceedings in the matter. That commissioner concluded both the March, 1982 and June, 1985 conditions were recurrences of the March, 1976 injury; consequently claimant was entitled to Sec. 31-307b benefits for the 1985 as well as the 1982 disability. Besides the commissioner held claimant was owed interest on the sum due at twelve per cent (12%) per annum retroactive to June 17, 1985.
Sec. 31-307b provides in pertinent part: 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, whichever is the greater sum,[.]
Respondents appeal arguing the commissioner erred (1)in deciding the June 17, 1985 condition was recurrence of the March, 1976 injury, and (2)in awarding interest on the unpaid amounts.
The conclusion that claimant's bouts of back pain were recurrences of the March, 1976 injury rather than new injuries is a factual determination. Glynn v. Terry Corporation, 8 Conn. Workers' Comp. Rev. Op. 87, 806 CRD-2-89-1 (1990); Hehl v. Kimberly Clark Corp., 8 Conn. Workers' Comp. Rev. Op. 38, 774 CRD-7-88-10 (1990); Janov v. General Electric Co., 4 Conn. Workers' Comp. Rev. Op. 44, 491 CRD-4-86 (1987). We are therefore limited on review to determining whether the conclusion is contrary to law, without evidence or based on unreasonable or impermissible factual inferences. Fair v. People's Savings Bank, 207 Conn. 535 (1988). Here there was evidence before the commissioner from which he could reasonably have found that claimant's later symptoms were recurrences. See Deposition of Leo V. Willet, M.D., August 23, 1988 at 11-13 (Claimant's Exhibit Exhibit B). Therefore, we may not disturb the conclusions reached.
To support its contention that the interest was improperly assessed, respondent G.A.B cites Sec. 31-299b. Sec. 31-299b directs that if an employee suffers a compensable injury, "the employer who last employed the claimant prior to the . . . claim, or the employer's insurer, shall be initially liable for the payment of . . . compensation." The statute then provides that if there are prior employers or insurers who are liable for part of the compensation then commissioner will order such prior liable parties to reimburse the last employer for their portion of the liability. The G.A.B. contention is that since the insurer Cigna insured the employer in 1985, the initial obligation to pay compensation was on that last carrier. So, the argument continues, if there were any undue delays after the 1985 recurrence, the fault for the delay did not lie with G.A.B. Therefore the Sec. 31-300 sanctions should not have been invoked against G.A.B.
Sec. 31-300 provides in pertinent part: In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been employer or insure, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in his award interest at six per cent per annum and a reasonable attorney's fee in the case of undue delay in adjustments of compensation and may include in his award in the case of undue delay in payments of compensation, attorney's fee.
The G.A.B. argument fails to convince. Sec. 31-299b relates to an injury where there exists a compensable injury with multiple employer liability, a concept analogous to the joint tortfeasor situation in the common law. It is only then that the last responsible party in the chain has a make the first payment to be reimbursed later. Here there never was a multi-liability injury. The injury remained the single liability 1976 injury as defined in Sec. 31-307b. Finding that there was undue delay in payment, the commissioner ordered interest on the award at a rate provided in the statute, twelve (12%) per cent per annum.
We, therefore, dismiss the appeal and affirm the decision below.
Commissioners A. Thomas White, Jr. and James Metro concur.