5383 CRB-8-08-10 (2009). Neville v. Baran Institute of Technology et al.

• Court: Connecticut

Connecticut Workers Compensation 2009. 5383 CRB-8-08-10 (2009). Neville v. Baran Institute of Technology et al CASE NO. 5383 CRB-8-08-10COMPENSATION REVIEW BOARD WORKERS' COMPENSATION COMMISSION SEPTEMBER 24, 2009ANTHONY NEVILLE CLAIMANT-APPELLEE v. BARAN INSTITUTE OF TECHNOLOGY EMPLOYER and ZURICH NORTH AMERICA INSURER RESPONDENTS-APPELLANTS and CONNECTICUT STEEL CORPORATION EMPLOYER and ARROWPOINT CAPITAL CORPORATION INSURER RESPONDENTS-APPELLEESAPPEARANCES: The claimant was represented by Robert J. Sokolowski, Esq., Law Offices of Robert J. Sokolowski, 1 Barristers' Court, Meriden, CT 06451. The respondents Baran Institute of Technology and Zurich American Insurance Co. were represented by Michael A. Burton, Esq., Sharp, Shields & Smith, 500 Enterprise Drive, Suite 4B, Rocky Hill, CT 06067. The respondents Connecticut Steel Corporation and Arrowpoint Capital Corporation were represented by Maribeth McGloin, Esq., Maher & Williams, P.O. Box 550, Fairfield, CT 06824. This Petition for Review from the September 15, 2008 Finding and Award of the Commissioner acting for the Eighth District was heard March 27, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.OPINION JOHN A. MASTROPIETRO, CHAIRMAN. This appeal concerns the applicability of Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003) to a scenario where the claimant suffered two separate compensable injuries. The trial commissioner in this matter determined that since a second injury occurred the insurance carrier on the risk for that injury was responsible for the claimant's cervical spine injuries subsequent to that date. The respondent Zurich North America ("Zurich") has appealed, arguing the evidence in the record does not support the Finding and Award.We have reviewed the record in this matter as well as the text of the applicable statute, § 31-349(a) C.G.S. Upon review, we have determined the trial commissioner did not have sufficient probative evidence to justify the result reached in the Finding and Award, since apportionment may only be ordered when a claimant has sustained a disability "which is materially and substantially greater than the disability that would have resulted from the second injury alone." We determine there is no evidence on the record which would sustain such an award for the claimant's cervical condition, and reverse the trial commissioner on that issue. We will summarize what was a lengthy Finding and Award, which details three separate work-related injuries and no fewer than five surgical procedures. The claimant suffered his first cervical spine injury on September 25, 1994 while employed by Connecticut Steel. In December of 1994 he underwent his first cervical fusion. Following that surgery the claimant was awarded a 20% permanent partial disability award and returned to work with restrictions. The claimant suffered another injury on January 14, 1999 while working at Connecticut Steel. He had a number of surgeries subsequent to that event. The claimant testified to a September 11, 2002 cervical spine surgery, a November 24, 2003 cervical spine surgery and a June 8, 2005 cervical spine surgery. The claimant's treating physician, Joseph Aferzon. M.D. also performed a posterior fusion surgery at C-4 through C-6 on November 24, 2004. On May 12, 2005 Commissioner White ordered Connecticut Steel's carrier, now known as Arrowpoint Capital, ("Arrowpoint") to pay the claimant's unpaid medical bills, temporary total disability and attorney's fees regarding the claimant's cervical spine. The claimant has testified that he did not receive a permanent partial disability rating following any of these aforementioned surgeries. The 2005 order did not address the claimant's lumbar spine. MRIs conducted in September 1999 and January 2000 showed a broad-based disc bulge with spinal stenosis. An April 2, 2003 Respondents' Medical Examination included an MRI that did not...