JOSHUA GALINSKI CLAIMANT-APPELLANT
v.
BEAVER TREE SERVICE, L.L.C. EMPLOYER
and
CALIFORNIA INSURANCE COMPANY INSURER RESPONDENTS-APPELLEES
No. 6361 CRB-1-19-12
Connecticut Workers Compensation
Compensation Review Board Workers Compensation Commission
December 9, 2020
This
Petition for Review from the December 2, 2019 Finding and
Dismissal by Scott A. Barton, the Commissioner acting for the
First District, was heard June 26, 2020 before a Compensation
Review Board panel consisting of Commission Chairman Stephen
M. Morelli and Commissioners Randy L. Cohen and William J.
Watson III.[1]
The
claimant was represented by Mark E. Blakeman, Esq., and
Carolyn A. Young, Esq., Michelson, Kane, Royster &
Barger, P.C.
The
respondents were represented by Matthew S. Necci, Esq.,
Halloran Sage
OPINION
STEPHEN M. MORELLI, CHAIRMAN.
The
claimant has petitioned for review from the December 2, 2019
Finding and Dismissal (finding) of Scott A. Barton,
Commissioner acting for the First District (commissioner). We
find error and accordingly reverse the decision of the
commissioner and remand this matter for additional
proceedings consistent with this Opinion.
The
commissioner identified as the issue for determination the
compensability of injuries to the claimant’s cervical
spine and brain sustained on December 27, 2017. The following
factual findings are pertinent to our review. On the date of
injury, the claimant was employed by the respondent employer,
a tree removal company owned by his father, John Galinski.
The claimant, who began working for the company in July 2015,
was at a worksite in Wales, Massachusetts, when he was struck
in the head by a falling tree limb. The accident resulted in
a traumatic brain injury and multiple fractures to the
claimant’s cervical spine, rendering him a
quadriplegic.
The
work crew on the date of injury consisted of the claimant,
the foreman, Dustin O’Dell, and a grapple truck driver,
Dan Karnolt. O’Dell was responsible for operating the
bucket truck and trimming the tree with a chainsaw. The
claimant was responsible for hauling brush. On the morning of
the accident, the crew met at John Galinski’s home and
traveled to the worksite after stopping for gas and snacks.
The job involved the removal of one large tree; O’Dell
was operating the lift and cutting branches while the
claimant and Karnolt remained on the ground.
The
crew utilized a communications system consisting of
headphones and microphones which allowed O’Dell to
instruct the ground crew as to when the cuts would be made.
The claimant and Karnolt were advised to stand outside the
drop zone while O’Dell trimmed the tree branches. After
a portion of the trimming was completed, O’Dell would
lower himself to the ground and help the crew clean up the
downed branches and carry them to the woodchipper. This
process continued until only the larger limbs and the trunk
of the tree remained.
After
picking up the branches, O’Dell returned to the lift to
cut down the remaining four large limbs. O’Dell
communicated his intentions to the ground crew. The first cut
was performed without incident and, ten seconds after
removing the first limb, O’Dell cut the second top of
the tree. It was at this time that the claimant entered the
drop zone and was struck on the head by the second limb.
Immediately
after the accident, Karnolt called 911. Members of the Wales
police department and emergency medical personnel responded
to the scene, where the claimant was found unresponsive and
was intubated. The claimant was transported to Baystate
Medical Center by LifeStar where he underwent emergency
surgery to treat complex fractures at C1, C3, C4, C5 and C6.
As part of the emergency surgical procedure, the Baystate
medical staff obtained a urine drug screening, the results of
which demonstrated high levels of an inactive metabolite of
marijuana.
On
January 16, 2018, the claimant was transported to Craig
Hospital in Englewood, Colorado, for specialized treatment
for his spinal cord injury. The claimant remained in Colorado
until October 10, 2018, undergoing numerous surgeries at
Craig Hospital and the Swedish Medical Center to further
stabilize his cervical spine. The claimant returned to
Connecticut on October 10, 2018, where he was admitted to
Gaylord Specialty Healthcare in Wallingford. He was
discharged from Gaylord on October 19, 2018, and has been
living at his parents’ home since that date. He
continues to receive appropriate medical care for individuals
with severe spinal cord injuries.
On
August 9, 2018, Karnolt testified at deposition that December
27, 2017, was his first day of employment with Beaver Tree
Service and he had not had any prior dealings with the
Galinski family. He specifically recalled O’Dell
telling the claimant and him to stand clear prior to the
accident; the communication was through the headsets they
were wearing. He testified that the headsets and microphones
were tested as soon as he and the others had arrived at the
worksite and were functioning properly that day. The headsets
were designed so that co-workers could be heard even when the
chainsaw was being operated. Karnolt was not aware of any
hand signals that could be used if the headsets failed.
Karnolt
testified that the accident occurred within two hours of
starting the job and approximately thirty minutes after
O’Dell began using the chainsaw to remove the tree
limbs. Karnolt recalled the claimant telling O’Dell he
understood the directions to stand clear of the drop zone
prior to the accident. He believed the claimant was aware of
the location of the drop zone and, before the claimant walked
into the drop zone and was struck on the head, he had told
Karnolt he understood O’Dell was making cuts to the
tree. The claimant was aware that cutting down the large part
of the tree would take some time and they were to stand back
until O’Dell was finished cutting. Karnolt witnessed
the claimant entering the drop zone prior to the second cut
of the tree; the claimant was dragging a tree branch when he
was struck by the falling limb. Karnolt testified that he was
“screaming” at the claimant trying to warn him
about the falling limb. Id., p. 24. Karnolt
indicated that the claimant appeared to be “a
completely normal kid” on the morning of the accident,
Findings, ¶ 12.d., quoting Claimant’s
Exhibit I, p. 14, and he did not witness the claimant using
drugs or alcohol that day.
On
August 15, 2018, O’Dell testified by way of deposition.
He indicated that as of the date of the accident, he had been
employed by the respondent employer for approximately eight
years. He is an experienced tree removal specialist and, in
his role as foreman, was responsible for operating the chain
saw from the lift and instructing the ground laborers where
to stand and when to begin dragging the branches to the
woodchipper.
O’Dell
testified that in addition to the headsets, he generally uses
hand signals and head nods to communicate with the ground
crew. He stated that the headsets were fully charged and
operational on the day of the accident. He indicated that he
was in regular communication with the claimant throughout the
tree-trimming process and had no explanation for why the
claimant entered the drop zone before being told that it was
safe to do so. O’Dell testified that the crew
understood where the drop zone was located and the
instructions they would receive before it was safe to enter
the zone. O’Dell stated that as of the date the
accident occurred, he had known the claimant for five years,
and described him as “a great worker.”
Claimant’s Exhibit J, p. 16. He further indicated that
the claimant seemed fine that day and he did not believe the
claimant was under the influence of alcohol or drugs,
including marijuana.
The
claimant testified by deposition on December 18, 2018. He
indicated that he believed he had taken a mandatory OSHA
safety training class for his work with Beaver Tree Service.
He testified that the headset system was working properly
that day and the drop zone had been clearly established prior
to O’Dell going up in the lift to begin the tree
trimming. He had no memory of what happened just before he
walked into the drop zone and was struck by the limb. He does
not remember being told by O’Dell or Karnolt that it
was safe to enter the drop zone before he was struck. The
claimant admitted that he would occasionally use marijuana
recreationally “maybe once or twice a week during the
weekends.” Claimant’s Exhibit K, p. 26. He also
occasionally drank alcohol but this occurred less frequently
than his marijuana use. He was “adamant” that he
did not use...
