Opinion
CASE NO. 63-CRD-3-81
AUGUST 3, 1982
The Claimant-Appellee was represented by Frederick S. Moss, Esq.
The Respondents-Appellants were represented by Serge G. Mihaly, Esq.
This Petition for Review from the March 18, 1981 Decision of the Commissioner for the Third District was argued February 19, 1982 before a Compensation Review Division Panel consisting of Commissioners John Arcudi, Edward Bradley and Gerald Kolinsky.
FINDING AND AWARD
1-5. Paragraphs 1 through 5 of the Commissioner's Finding are affirmed and adopted as 1 through 5 of this Division's Finding.
6. Within the hearing of one of the principal owners of the Employer, the saleman requested assistance in removing the copy machine and carrying it down the stairs. The principal owner in question answered that someone would help.
7. Other employees were occupied. The claimant volunteered to help.
8-10. Paragraphs 7 through 9 the Commissioner's Finding are affirmed and made Paragraph 8 through 10 herein.
11. Dr. Allen Greenberg, a New Haven neurosurgeon, testifying on behalf of the Claimant, concluded that the disc rupture at L-4, L-5 was causally related to the copy machine lifting incident at work February 14, 1979. It is so found.
12. The suitcase lifting some six weeks prior may have caused a tear in the covering of the disc, but it did not cause the rupture.
13. The L-5, S-1 disc pathology is not related to the February work related happening.
WHEREFORE IT IS ORDERED, ADJUDGED AND DECREED THAT:
A. Claimant suffered a compensable injury to his back at the L-4, L-5 level February 14, 1979 arising out of and during the course of his employment with Respondent.
B. Respondent is to pay Claimant all weekly indemnity and medical benefits resulting from that injury.
C. Respondent is to pay a fee of $250.00 for Dr. Greenberg's testimony.
D. Further proceedings are necessary to decide whether there was a pre-existing condition of the back and whether such pre-existing condition together with the February, 1979 injury created a disability substantially and materially greater than would have resulted from the subsequent injury alone.
OPINION
Claimant was employed as a structural engineer by the Respondent-Employer in New Haven. On February 14, 1979 while claimant was working at the employer's premises, a salesman, not an employee of this employer, asked for help in removing a demonstration photostat machine from the premises and carrying it down a flight of stairs. One of the principal owners of the employer corporation assured the salesman that someone would help him.
The claimant did in fact help in carrying the machine down the stairs. While doing so, he experienced a snap in his back and mild back discomfort. His back discomfort became incapacitating within a few days, and claimant sought medical attention. He was found to have a left posterolateral ruptured intervertebral disc at L-4, L-5 by Dr. Alvin Greenberg, a New Haven neurosurgeon. This was causally related to the injury occurring when lifting and carrying the photostat machine.
The claimant also had disc degeneration and central rupture at L-5, S-1, but this was unrelated to the February 14, 1979 injury. Six weeks prior to that work event, claimant experience low back pain for several weeks after lifting a suitcase out of the trunk of his car. The suitcase incident may have caused tear in the covering of the disc but did not cause the disc rupture. The suitcase incident also did not cause claimant seek medical attention. Two years prior to February, 1979, claimant had had a lifting incident causing him back discomfort for a few days.
Respondent-Appellants' first claim is that the February, 1979 injury did not arise out of and occur during the course of the employment. Respondent cites Gibbs vs. Downs, 94 Conn. 487 (1920), Vitas vs. Grace Hospital Society, 107 Conn. (1928), Smith vs. Seamless Rubber Co., 111 Conn. 365 (1930) and Farnham vs. Labutis 147 Conn. 267 (1960), in supporting its contention that the claimant was voluntarily performing a service entirely outside and unrelated to his employment. We cannot agree with respondent even on the basis of those precedents. The demonstration photostat machine was on the employer's premises for the employer's benefit. It apparently wanted purchase such a machine for the purpose of furthering its business. Once the demonstration period had passed, and the employer had seemingly decided not to purchase that particular machine, it was still for the employer's benefit that the machine be removed from the premises. So, even if we limit ourselves to the employer benefit theory of the old precedents cited by Respondent-Appellant, it is clear that claimant's act in helping the salesman was one arising out of and in the course of the employment.
However, our Supreme Court has within the last four years enunciated a new test, McNamara vs. Town of Hamden, 176 Conn. 547 (1979). The court there said, "When an employee is on the premises and is within the period of employment, however, it should not be necessary to satisfy the additional test of employer benefit." supra, 553. When we apply the McNamara test to the instant case, it would seem that respondent's denial of claim here approaches unreasonableness of contest, Graf vs. Massaro, 59-CRD-3-81. But that consideration aside, the Commissioner's holding that the claim was compensable is correct.
As to Appellants' second Reason of Appeal that the Commissioner erred in failing to articulate whether L-4, L-5 or L-5, S-1 injury was compensable, we think a fair reading of paragraphs 10 and 11 of the Finding together with (a) of the Order makes clear that the Commissioner held the L-4, L-5 disc injury to be the compensable one. However, we do agree that the Commissioner's Finding in paragraphs 10 and 11 should not have been couched merely as a recitation of the doctor's testimony, and we have corrected that in our Finding.
Respondents-Appellants' third Reason of Appeal involves a misreading of the law. Section 31-275(12)(D) and the same language in its predecessor statute refers only to aggravation of occupational diseases, Cushman vs. McTernan School, Inc., 130 Conn. 401 (1943). In the instant matter it does not appear that the pre-existing conditions, even if arguendo a disease, was an occupationally caused impairment of the body. There can be no apportionment of causation under the statute unless it is occupational.
Finally, the fourth Reason of Appeal concerns a non-issue at this stage of the proceedings. Respondent-Appellant may wish to avail itself of Section 31-349, C.G.S. whereby it may transfer liability to the Second Injury Fund for more than 104 weeks of payment to claimant should the disability persist for that period. Apparently the Commissioner below did not think that that issue had been sufficiently litigated or that it was then ripe for decision. It may also be that she considered the Second Injury and Assurance Fund to be a necessary party to that portion of the proceedings, vide penultimate paragraph of Bielik vs. Scovill Manufacturing Company, 52-CRD-5-81, 8 C.L.T. No. 29, July 19, 1982.
The decision of the Commissioner is affirmed.