Opinion
CASE NO. 03348 CRB-4-96-6CLAIM NO. 0400014842
MAY 4, 1998
The claimant was represented by Robert Photos, Esq.
The respondent employer and Travelers Insurance were represented by Sharon Ramsay McCoughlin, Esq., Law Offices of Christine L. Harrigan.
The respondent Wausau Insurance was represented by James Powers, Esq., Law offices of Larry Lewis.
The respondent Maryland Casualty Insurance Co. was represented by Louis George, Esq., Hassett, George Siegel.
This Petition for Review from the May 24, 1996 Finding and Award of the Commissioner acting for the Sixth District was heard April 4, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.
OPINION
The respondent employer and its insurer Travelers Insurance Co. ("appellants") have petitioned for review from the May 24, 1996 Finding and Award of the Commissioner acting for the Sixth District. In that decision the trial commissioner determined that the claimant had sustained an initial injury to his back on October 26, 1990, and that he subsequently sustained a new injury to his back on February 20, 1995. The appellants argue on appeal that the trial commissioner improperly concluded that the claimant suffered a new injury rather than a recurrence or relapse.
The claimant was employed by the respondent employer since 1988. On October 26, 1990 the claimant sustained a compensable injury to his back, which was accepted by the employer and its insurer Wausau. Subsequently, on July 1, 1991, Maryland Casualty became the insurer. During February of 1992 the claimant experienced severe pain on the left side of his low back radiating down his left leg, which was diagnosed as an exacerbation or aggravation of his October 26, 1990 injury. A voluntary agreement was approved for a 7.5 percent permanent partial disability of the back for which Wausau accepted 75% and Maryland Casualty accepted 25% liability.
The claimant continued to experience and to treat for low back pain from February of 1992 to February of 1995, but was able to perform his duties on a full-time basis. On February 20, 1995 the employer's insurer was Travelers. On that date, while pulling on a bar to open a cask, the claimant felt severe pain in his back which caused him to fall to the floor. The claimant was treated at a hospital and received medical treatment from Dr. Shanley for his low back. The claimant was referred to Dr. Mintz, who reviewed an MRI and opined that the claimant's condition was the result of an "initial injury three to four years ago while at work. . . ." (Finding No. 17). The claimant became temporarily totally disabled as of February 20, 1995.
We have long held that the question of whether an injury is a recurrence of a prior injury pursuant to § 31-307b or a new injury is a factual determination for the trial commissioner. Uva v. Valleries Transportation Service, Inc., 13 Conn. Workers' Comp. Rev. Op. 106, 107, 1625 CRB-7-93-1 (Jan. 30, 1995); Perry v. Union Lyceum Taxi Co., 13 Conn. Workers' Comp. Rev. Op. 16, 17, 1695 CRB-4-93-4 (Nov. 3, 1994). In close cases where the facts could support either conclusion, this Board will defer to the commissioner's finding on that issue. Id.; see Fair v. People's Savings Bank, 207 Conn. 535, 539 (1988). In the instant case, however, the appellants argue that there was no medical evidence presented which supports the trial commissioner's conclusion that the February 20, 1995 incident constituted a new injury rather than a recurrence of the initial injury. We agree.
In the instant case, we were unable to locate any medical evidence in the record to support the conclusion that the claimant's injury which occurred on February 20, 1995 constituted a new injury so as to interrupt the chain of causation from the initial injury of October 26, 1990. In fact, the findings made by the trial commissioner appear to indicate otherwise. (See Finding No. 12 and 17). However, this Board may not make any findings of fact based upon our review of the record. See Uva, supra. Because we find insufficient findings of fact to support the trial commissioner's determination that a new injury occurred on February 20, 1995, we will remand this matter to the trial commissioner for further proceedings, including the presentation of further evidence if necessary.
This matter is remanded to the trial commissioner in accordance with the above.
Commissioner John A. Mastropietro concurs.
I respectfully dissent. I agree with the majority's reasoning in the instant case that "we were unable to locate any medical evidence in the record to support the conclusion that the claimant's injury which occurred on February 20, 1995 constituted a new injury so as to interrupt the chain of causation from the initial injury of October 26, 1990." Thusly, I am of the opinion that a reversal is mandated.