CASE NO. 82-CRD-5-81Workers’ Compensation Commission
AUGUST 18, 1982
The Claimant-Appellee was represented by Michael Zawadzkas, Esq.
The Respondents-Appellants, Torrington Special Products and American Mutual Insurance Company were represented by William C. Brown, Esq.
The Respondent-Appellee, National Loss Control was represented by Edward Downes, Jr., Esq.
This Petition for Review from the July 30, 1981 Decision of the Commissioner for the Fifth District was argued April 23, 1982 before a Compensation Review Division Panel consisting of Commissioners John Arcudi, Robin Waller and Rhoda Loeb.
John Arcudi, Chairman, Robin Waller, Commissioner, Rhoda Loeb, Commissioner
FINDING AND AWARD
1-2. Paragraphs 1 and 2 of the Commissioner’s Finding are affirmed and adopted as paragraphs 1 and 2 of the Finding of this Division.
3. It is found that the repetitive activity involved in his work over that entire period caused claimant’s right shoulder rotator cuff to wear down and eventually tear in January, 1979. The right rotator cuff tear arose out of and in the course of the employment
4. It is found that as of October 21, 1980, the date of maximum improvement, claimant suffered a 25% permanent partial disability to his right master arm.
5-6. Paragraphs 5 and 6 of the Commissioner’s Finding are affirmed and adopted as paragraphs 5 and 6 herein.
7. The claimant due to this compensable injury was totally disabled from work from June 2, 1979 until October 21, 1980 with the exception of the period July 17, 1979 to August 21, 1979.
8. Claimant’s Compensation rate is $116.82 per week.
IT IS THEREFORE ORDERED, ADJUDGED, DECREED AND AWARDED THAT:
A. Respondents pay claimant temporary total benefits at his weekly rate augmented by appropriate cost of living increments and dependency allowances from June 2, 1979 until October 21, 1980 with the exception of the weeks from July 17 to August 21, 1979.
B. Respondents pay permanent partial disability benefits at the compensation rate for 78 weeks beginning October 21, 1980, that being the amount due for 25% permanent partial disability of the right master arm.
C. Respondents pay travel allowance for 1,696 miles of travel as found above.
OPINION
Compensability is conceded in this matter. The principal dispute is not between Employer and Claimant. Rather it is between the two Insurer Respondents. The Insurer, National Loss-Control of the Kemper Group insured the Employer, Torrington Special Products in 1979 when the Claimant, Cable first began to lose time from work. However, during many of the previous thirteen years Claimant worked, the Employer’s Workers’ Compensation coverage was with the Respondent, American Mutual Insurance Company.
In September, 1979 Claimant had to quit work due to pain in the right shoulder and neck. This was diagnosed by Dr. Charles Beaumont, a Waterbury Orthopedic Surgeon, as a rotator cuff tear. Surgery was performed October 22, 1979, and claimant was thereafter totally disabled for a long period of time. At the time of maximum improvement, claimant had suffered a 25% permanent partial disability of his right master arm.
Respondent-Appellant, American Mutual argues that the right rotator cuff tear was caused by one or two discrete traumatic work events in January and May, 1979. National Loss Control, hereinafter referred to as Kemper, contends that the condition which surfaced in 1979 was the result of repetitive trauma, continued wear and tear caused by Claimant’s work duties over the entire work period. This is an issue of proximate causation. Was the compensable event or series of events one comprehended within the first part or the second part of the personal injury definition language now contained in Section 31-275(8)? This repetitive trauma component of the personal injury definition did not exist in our law until the 1967 amendments. The Commissioner in Paragraph 3 of his Finding ruled in favor of Kemper and sustained the repetitive trauma theory of causation.
Our function as an appellate tribunal is limited to the inquiry whether there was sufficient evidence on which to base the Commissioner’s conclusion, Grady vs. St. Mary’s Hospital, 179 Conn. 662, (1980). The principal witness on causation was Dr. Charles Beaumont. On cross examination by Attorney Downes, the doctor testified as follows:
“Q. In other words, Doctor, is this problem that you dealt with in surgery a developmental type of injury?
A. It can be — may I go further?
Q. Yes.
A. It can be a developmental type of problem, very similar to a pitcher in baseball; but it usually takes some type of a rapid injury to make it fully complete itself.
Q. But it does develop over usage, is that correct?
A. The injury to a rotator cuff can develop over usage.”
Hearing April 30, 1980, T-39.
And later in that same cross-examination:
“Q. Now, Doctor, would you say in the course of this lifting, a constant repetitive lifting, it would have an effect on his arm, his rotator cuff to be specific?
A. Yes.
Q. And would you say that if a man had done this for some period of fourteen years, the same kind of heavy work, would that period of fourteen years have an effect of wearing down or affecting the rotator cuff?
A. Yes, it would in any joint in the body.”
Hearing April 30, 1981, T-41.
Later in his examination, the doctor stated that the fourteen years work wore down the rotator cuff so that it was susceptible to a tear, but that the actual tear probably came from an occurrence at work in January, 1979. There is some mention that Claimant was doing extra heavy work in January, but in the claimant’s testimony, there is no indication that weights lifted and the manner in which the lifting was performed in January were any different from the type of work he had been doing all during his employment. Having in mind the claimant’s own evidence and the quoted excerpts from the doctor’s testimony, we must needs conclude that there was ample basis for the Commissioner’s Finding. We have corrected Paragraph 3, in part, but the corrections granted do not alter the fundamental conclusion reached.
Respondent American Mutual’s second issue concerns the extent of temporary total disability found by the Commissioner in Paragraph 7 of the Finding. We have granted some of the corrections sought as the evidence does not seem to support a finding of total disability until April 30 or June 10, 1981, the dates of the hearings held in the matter. Doctor Beaumont testified that maximum improvement was reached October 21, 1980 one year after the surgery, and the Commissioner agreed with Dr. Beaumont’s rating of 25% permanent partial disability as of October 21, 1980. There is no other medical evidence, nor any evidence that Claimant was totally unemployable after October 21, 1980. The Appellant argues that the doctor testified Claimant could do some limited lifting as of the end of March, 1980, and it wishes temporary total disability terminated as of that date, but we think the evidence justifies a finding of total disability until maximum improvement rather than on the date when some lifting could be accomplished as the doctor also testified about a shoulder hand syndrome, a reflex sympathetic dystrophy occurring after the March, 1980 date.
The decision of the Commissioner, as modified, is affirmed.