5428 CRB-8-09-2 (2010). Francis v. Rushford Centers, Inc.

• Court: Connecticut

Connecticut Workers Compensation 2010. 5428 CRB-8-09-2 (2010). Francis v. Rushford Centers, Inc CASE NO. 5428 CRB-8-09-2COMPENSATION REVIEW BOARD WORKERS' COMPENSATION COMMISSIONFEBRUARY 8, 2010MARIE C. FRANCIS CLAIMANT-APPELLEE v. RUSHFORD CENTERS, INC. EMPLOYER and WORKERS COMPENSATION TRUST INSURER RESPONDENTS-APPELLANTS APPEARANCES: The claimant was represented by Douglas L. Drayton, Esq., Pomeranz, Drayton and Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033. The respondents were represented by Neil J. Ambrose, Esq., Letizia, Ambrose and Falls, P.C., One Church Street, 4th Floor, New Haven, CT 06510. This Petition for Review from the January 26, 2009 Finding and Award of the Commissioner acting for the Eighth District was heard August 28, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioner Peter C. Mlynarczyk and Randy L. Cohen. OPINIONJOHN A. MASTROPIETRO, CHAIRMAN. This case requires us to consider the applicability of the apportionment statute, § 31-349 C.G.S. in a case where the claimant's initial injury occurred in another state. The claimant was injured again in Connecticut and the trial commissioner has ordered the respondents to pay the full value of the claimant's permanent partial disability. The respondents have appealed from the trial commissioner's Finding and Award. They argue that the compensation for the claimant's initial injury was "payable" from that prior injury and therefore, they should not be responsible for any permanency benefits attributable to that prior injury. Our review, however, indicates that the claimant does not have as of this date any clear right to compensation for permanent partial disability from that initial injury. Since there was no prior award which would be "payable" under the terms of Chapter 568, we affirm the trial commission's decision on this issue. We do however, find the respondents had a reasonable basis to contest this matter, and reverse the trial commissioner's order of sanctions. In all other respects, we dismiss this appeal. The trial commissioner found the following facts which are pertinent to our appellate review. The commissioner found that the claimant, Marie Francis, sustained an injury to her lumbar spine on August 6, 2006 while employed by the respondent, Rushford Centers, Inc. The parties have reached a voluntary agreement for this injury approved on February 5, 2007. The claimant had suffered an earlier lumbar spine injury on June 29, 1998 while employed in the State of Arizona. The claimant has been treating with Dr. W. Jay Krompinger. In 2001 Dr. Krompinger opined "I believe that her work injury sustained on June 29, 1998 predominantly caused exacerbation of the degenerative changes and internal disc structure. . ." and opined that the claimant had reached maximum medical improvement with a 20% permanent partial impairment of the lumbar spine. The claimant filed a claim in Arizona for her 1998 injury. Under Arizona law, unlike Chapter 568, the lumbar spine is not among the enumerated body parts which constitute a "scheduled injury." On February 12, 2002, the Industrial Commission of Arizona concluded the claimant was not entitled to receive permanent partial disability benefits for this lumbar injury. Following her injury in Arizona the claimant returned to full time employment as a psychiatric nurse. She treated with Dr. Krompinger following her 2006 injury. On December 20, 2006 Dr. Krompinger issued a report discussing the claimant's various lumbar spine injuries and concluded . . . I think for all practical purposes, I would consider her pain complex at present to be an exacerbation of her previous lumbar fusion." Dr. Krompinger referred the claimant to Dr. Pietro Memmo. Dr. Memmo opined on September 18, 2007 that the claimant had suffered a disc herniation at the L3-4 level, a separate level than her previous injury. As a result of this injury, Dr. Memmo opined "she...