Summary
In Delucia v. Modena, supra, 216-17, the board concluded, inter alia, that both the fund and a beauty salon were precluded from challenging the commissioner's determination that the salon was the claimant's last employer for purposes of administering the claim and making initial payments pursuant to General Statutes § 31-299b.
Summary of this case from Dechio v. Raymark Industries, Inc.Opinion
CASE NO. 1471 CRB-3-92-7
MARCH 15, 1994
The claimant appeared pro se at the trial level but did not appear before the Compensation Review Board.
Respondent Robert Modena d/b/a Robert's Coiffures was represented by Frank M. Grazioso, Esq., Grazioso Hosen, Joseph Cavaliere d/b/a Cavaliere's Beauty Shop was represented by Charles B. Angelo, Esq., Antollino, Angelo Scalesse, Respondent Brenda Goclowski d/b/a Unique Techniques was represented by David N. Rosen, Esq.
The Second Injury Fund was represented by Robin L. Wilson, Esq., Assistant Attorney General.
These Petitions for Review from the July 21, 1992 Finding and Award, November 23, 1992 Supplemental Finding and Award and the December 14, 1992 Supplemental Finding and Award of the Commissioner for the Third District were heard April 30, 1993 before a Compensation Review Board panel consisting of Commissioners Frank J. Verrilli, James J. Metro and Angelo L. dos Santos.
OPINION
By Finding and Award dated July 21, 1992, the Third District Commissioner found that the claimant sustained a right shoulder injury at work due to repetitive trauma caused by her duty as a hairdresser with the three respondent-employers, Joseph Cavaliere d/b/a Cavaliere's Beauty Salon (Cavaliere), Brenda Goclowski d/b/a Unique Techniques (Unique), and Robert Modena d/b/a Robert's Coiffures (Robert's). The commissioner also found that the claimant was last employed by Robert's and, pursuant to General Statutes Sec. 31-299b, ordered Robert's to "administer the claim and make any payments ordered." Robert's was therefore ordered to pay $63 to the claimant for prescription bills she paid. The issues of apportionment of liability among the various employers and the claimant's entitlement to temporary total and/or permanent partial benefits, were left to further hearings.
General Statutes Sec. 31-299b provides in pertinent part: "If an employee suffers an injury or disease for which compensation is found by the commissioner to be payable . . ., the employer who last employed the claimant prior to the filing of the claim . . . shall be initially liable for the payment of compensation. The commissioner shall, within a reasonable time after issuing an award, on the basis of the record of the hearing, determine whether prior employers . . . are liable for a portion of such compensation and the extent of their liability. If prior employees are found to be so liable, the commissioner shall order such employers . . . to reimburse the initially liable employer . . . according to the proportion of their liability . . . ."
By Supplemental Finding and Award dated November 23, 1992, the commissioner found that the claimant had been totally disabled for several months in 1990 and that she has a 25% permanent partial disability of the right arm with a maximum medical improvement date of May 4, 1992. The commissioner also found that the claimant had incurred additional prescription costs and a medical bill. The commissioner therefore ordered Robert's to pay the claimant temporary total benefits and permanent partial benefits, to pay the claimant's outstanding medical bill and to reimburse the claimant for the additional prescription costs incurred by her.
On January 7, 1993 the trial commissioner granted the Second injury Fund's motion to open, pursuant to General Statutes Sec. 31-315, to submit additional evidence relating to the extent of the claimant's permanent partial disability. This action by the commissioner does not affect the issues sought to be raised in these appeals.
By Supplemental Finding and Award dated December 14, 1992, the commissioner ordered Robert's to pay scarring benefits. The commissioner also denied a claim for temporary partial benefits under General Statutes Sec. 31-308(a).
APPEALS OF RESPONDENTS CAVALIERE AND UNIQUE
In their appeals, Cavaliere and Unique each challenge the commissioner's determination that the claimant's repetitive trauma injury was causally related to the claimant's employment with their business. Both respondents raise identical claims on appeal, and we address their appeals together.
The claimant alleged that her injury occurred due to her employment at Robert's only. She testified that she sustained no work-related injury while in the employ of Cavaliere or Unique. She stated that she first experienced shoulder pain due to her employment while subsequently employed at Robert's. She also testified that she worked more hours and her duties more often involved arm and shoulder flexion (e.g., shampooing, blow drying, hanging wet towels) while employed at Robert's as compared to her work at Cavaliere and Unique.
The commissioner, however, chose to rely on the medical report of Dr. Robert Margolis, an orthopedic surgeon, who conducted an independent medical examination of the claimant at the request of the Second Injury Fund. In his report, Dr. Margolis notes the claimant's work and medical history which was reflected in her testimony and relied on by these appellants: "She claims that over a period of many years as a hairdresser, she never had any symptoms of shoulder pain whatsoever and her belief is that somehow a different nature of work for Robert's produced injury to the right shoulder. Specifically, she claims, `he made me use a blow dryer', and `he made me hang out his towels.'" To this contention, Dr. Margolis opines: "It is hard for me to conceive that there is a definable difference in duties, sufficient to produce de novo what is basically an attritional or chronic overuse condition of the shoulder in a short defined time working for one employer when the same professioned (sic) has been practiced by the claimant for other employers before and since." After review of her "unusually extensive medical records," Dr. Margolis further opines: "Chronic recurrent shoulder pain from anyone of a multiplicity of causes all based in overuse is common in hairdressers. The concept and claim that the symptomatic abnormalities in this claimant's right shoulder all result from a relatively brief period of employment totalling 12 months out of a period of 13 years in the hairdressing profession is untenable. Chronic subacromial bursitis from repetitive impingement as a result of use of the shoulders in the abducted forward flexed position in the work place is tenable and common but this is clearly a cumulative overuse injury apportionable, theoretically on the basis of time worked for each employer, among all employers."
Whether an injury arose out of and in the course of employment with a respondent-employer is a factual determination for the trial commissioner to make. Pinto v. B.C. Hardware Superior Company, 11 Conn. Workers' Comp. Rev. Op. 210, 1351 CRD-6-91-12 (1993). The conclusions of the trial commissioner "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." Fair v. People's Savings Bank, 207 Conn. 535, 539 (1988); Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979).
The commissioner's conclusion that the claimant's injury causally related to her employment with Cavaliere and Unique, well as with Robert's, was dependent on the weight and credibility to be accorded the evidence. We will not disturb conclusions which are so based. Neal v. UTC/Pratt Whitney, 10 Conn. Workers' Comp. Rev. Op. 163, 1199 CRD-8-91-3 (1992). Because we do not retry the facts, it was within the province of the trial commissioner to resolve any inconsistencies or contradictions in the evidence. See Miller v. Kirshner, 225 Conn. 185, 198-99 (1993). The commissioner clearly grounded his finding and conclusion on this point in large part in the report of Dr. Margolis. Cavaliere's and Unique's challenge to the use of that report notwithstanding, we conclude that a fair and complete reading of the report, and the opinion of Dr. Margolis contained therein, amply supports the commissioner's decision. See Aurora v. Miami Plumbing Heating, Inc., 6 Conn. App. 45, 46 (1986) (no "magic words" required to state expert medical opinion); see also Madore v. New Departure Mfg. Co., 104 Conn. 709, 714 (1926) (medical testimony as to causation must be stated in terms of reasonable medical probability, not possibilities).
Accordingly, the appeals by Cavaliere and by Unique are without merit.
APPEALS BY ROBERT'S AND BY THE SECOND INJURY FUND
In their appeals, Robert's and the Second Injury Fund challenge the commissioner's finding that respondent-employer Robert's Coiffures was the employer who last employed the claimant prior to the filing of the claim for purposes of administering the claim and making initial payment of any amounts ordered pursuant to General Statutes Sec. 31-299b. See footnote 1, supra. Robert's and the Second Injury Fund assert that the evidence shows that respondent-employer Unique Techniques, not Robert's, was the last employer for Sec. 31-299b purposes. We conclude, however, that neither appellant properly preserved this claim for our review.
Respondent-appellant Robert's does raise another issue on appeal. Robert's "requests an opportunity to have independent medical evaluation in his behalf prior to the final award of a specific disability in this matter." Since this claim does not challenge a decision or order of the trial commissioner, it too is not properly before the panel. General Statutes Sec. 31-280b and Sec. 31-301(a), see also General Statutes Sec. 31-294.
In his July 21, 1992 Finding and Award, the trial commissioner found that the claimant "was last employed by Robert's Coiffures until October 1990" and ordered "that pursuant to Connecticut General Statutes Sec. 31-299b, Robert Modena d/b/a Robert's Coiffures administer the claim and make any payments ordered." At that time, the commissioner required Robert's to pay the claimant $63.00 as a reimbursement for prescription bills she paid. While the commissioner left to further hearings the determination of the percentage of liability that the other employers would pay to satisfy their joint liability for the claimant's injury, the commissioner clearly determined pursuant to Sec. 31-299b that Robert's was "the employer who last employed the claimant prior to the filing of the claim" who "shall be initially liable for the payment of . . . compensation."
Throughout the formal hearings leading up to his July 21, 1992 Finding and Award, the trial commissioner made clear that he intended to address the "initially liable employer" issue under Sec. 31-299b. See, e.g., Transcript of October 23, 1991, pp. 6, 76, Transcript of March 10, 1992, p. 16.
We note that neither Robert's nor the Second injury Fund filed a motion to correct the commissioner's factual finding in support of his Sec. 31-299b order. See Administrative Regulation Sec. 31-301-4. Where the appellant has failed to file a Motion to Correct, the trial commissioner's factual findings must stand. Mack v. Blake Drug Co., 152 Conn. 523, 525 (1965); Marzano v. Luis, 10 Conn. Workers' Comp. Rev. Op. 129, 1181 CRD-5-91-2 (1992).
More significantly, however, neither Robert's nor the Second Injury Fund filed a timely appeal concerning the commissioner's determination that Robert's was the claimant's last employer prior to the filing of her claim and therefore the initially liable respondent under Sec. 31-299b. That determination was explicitly made in the July 21, 1992 Finding and Award. Robert's and the Second Injury Fund did not file their appeals until after the commissioner rendered his November 23, 1992 Finding and Award. While their appeals were timely in relation to that later Finding and Award, the issue of the initially liable respondent under Sec. 31-299b had already been determined and orders to that effect were entered months before. Because no timely appeal had been taken on the Sec. 31-299b issue, the commissioner's determination had become final, no longer subject to review. See General Statutes Sec. 31-300, Sec. 31-301, see also Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 121-22, cert. denied, 223 Conn. 920 (1992).
It is of no moment that there were later orders by the commissioner directing Robert's to pay amounts found due the claimant. The commissioner's July 21, 1992 Finding and Award had clearly determined and had become final, no longer subject to our review. To conclude otherwise would not only undermine the orderly process of appellate review of workers' compensation decisions, but would inject unnecessary delay and uncertainty into our compensation system, contrary to the humanitarian purposes underlying our Workers' Compensation Act.
Accordingly, the appeals by Robert's and by the Second Injury Fund are without merit.
We, therefore, affirm the trial commissioner and deny the respondents' appeals.
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.
Commissioners Frank J. Verrilli and James J. Metro concur.