Malinowski v. Sikorsky Aircraft Corp.

207 Conn.App. 266

262 A.3d 917

Richard MALINOWSKI

v.SIKORSKY AIRCRAFT CORPORATION et al.

AC 43617

Appellate Court of Connecticut.

Argued March 11, 2021

Officially released September 7, 2021

Lucas D. Strunk, Glastonbury, with whom was Katherine E. Dudack, for the appellants (named defendant et al.).

Donna Civitello, Woodbridge, with whom was Robert F. Carter, Woodbridge, for the appellee (plaintiff).

Bright, C. J., and Alvord and Alexander, Js.

ALVORD, J.

The defendant Sikorsky Aircraft Corporation¹ appeals from the decision of the Compensation Review Board (board) affirming the decision of the Workers’ Compensation Commissioner for the Eighth District (commissioner). On appeal, the defendant claims that (1) the board erred in affirming the commissioner's finding that the workplace activities of the plaintiff, Richard Malinowski, substantially and permanently aggravated preexisting degenerative arthritis in his left knee, resulting in the need for a total knee replacement,² and (2) the commissioner erred in failing to grant its motion for articulation. We affirm the decision of the board.

The following history is necessary for the resolution of this appeal. On February 24, 2012, the plaintiff, who is employed by the defendant, filed a form 30C seeking compensation for an injury to his knees. He noted the date of injury as January 19, 2012, and stated that "[b]oth knees swelled up during the course of work that day ...." The hearing before the commissioner was held on April 30, 2015, and May 17, August 10 and November 30, 2016. The commissioner heard the testimony of the plaintiff and received as exhibits, among other documents, medical records and correspondence from Ronald S. Paret, a physician who treated the plaintiff for his knee injuries, the defendant's plant medical facility reports, and deposition transcripts of the plaintiff, Christopher Lena, a physician who evaluated the plaintiff at the request of the defendant, and Sebastian Marino, the plaintiff's former employer.

On June 5, 2017, the commissioner issued his findings and award. The commissioner summarized the plaintiff's testimony as follows. The plaintiff injured his left knee in 1972 while working as a motorcycle mechanic at S. Marino's Honda City (Honda), and he underwent surgery on that knee in November, 1973. A discharge summary referenced a left meniscectomy surgery, and the plaintiff stated that he had the lateral meniscus of his left knee removed.³ The plaintiff began working for the defendant in February, 1984. He was employed with the job title "Grinder B" for twenty-seven years before he was promoted to "Grinder Specialist."

Between the time he left employment with Honda⁴ and 2012, the plaintiff did not have any medical treatment to his left knee or any other left knee injury, except for a laceration over his left kneecap that he sustained while working for a steel company. Between 1973 and 2012, the plaintiff had occasional soreness in his left knee after strenuous exercise, such as running, swimming, and playing basketball. He did not experience swelling.

For twenty-eight years, while employed by the defendant, the plaintiff worked on one of two Springfield vertical grinders, which are the defendant's largest grinders. The grinders make the main rotor parts and transmission housings for helicopters. The tables on the grinders are approximately five and one-half feet in diameter and they have dual cutting heads on them. The grinder that the plaintiff primarily operated was elevated by six stairs. Depending on the job, he climbed the stairs as often as eight times per hour. He also carried reference rings and gauges, which weighed approximately twenty-five pounds each. When the parts he was grinding weighed less than fifty pounds, he carried them by hand up and down the stairs.

Over the course of the twenty-eight years he worked the grinder, the plaintiff was required to retrieve fixtures. "The fixtures for grinding the transmission housings on the Blackhawk were the heaviest. The original fixture weighed 1400 pounds, but about [10] years ago a new and lighter one (approx[imately] 500 pounds) was made. It was the grinder operator's job to set up every job, which included placing the fixture on the grinder. In order to set up the grinder, he would have to get the fixture out of the fixture crib, which is about 100 yards away from the grinder. If he couldn't get a tow motor operator to get the fixture, he would need to do so with a pallet jack or floor jack. In [28] years he probably needed to get the 1400 pound part about 20 [to] 30 times. ... Most of the heavy fixtures were stored directly across the aisle from the grinder. However, the operator would need to get a pallet jack and position them so that a crane would be able to lift them onto the grinder. Depending on the job, this could happen two or three times per day."

It could take up to four hours to set up the machine, and the plaintiff spent much of that time bent over. The plaintiff also, at other times, would have to reach out to the grinding table while standing on one leg. On a regular basis, he would push carts containing heavy parts. The plaintiff lifted parts weighing sixty pounds or less by hand and heavier parts by crane.

The plaintiff did not notice any knee problems until January, 2012, when he was lifting parts and working on a gear grinder. He had worked two twelve hour shifts and "both of his knees had blown up by the third day." The plaintiff saw Paret, who drained his left knee. In March, 2012, Paret recommended bilateral knee replacements, but the plaintiff continued working and hoped that his knees would get better. The plaintiff underwent a right total knee replacement surgery on October 30, 2014,⁵ and a left total knee replacement surgery on February 19, 2015.

Although Paret did not testify at the hearing, records prepared by him were entered into evidence. The commissioner quoted from a February 8, 2012 report prepared by Paret: "[The plaintiff] is a patient of Dr. Ross-Russell's with a knee swelling. He has had three weeks of left-sided knee pain. Wednesday to Friday he was working [twelve] hours a day and had gradually increasing swelling in the knee when he was pushing large heavy carts and racks of gears on the floor. He had previously a meniscectomy many, many years ago as a medial meniscectomy back in 1975 with a Dr. Campbell-Jacobs in Middletown but in the meantime he has had no issues ongoing at this point.

"IMPRESSION: This is a work injury. He previously does have substantial damage to the knee from a previous injury although he has bilateral knee arthritis. At this point the effusion is rather significant. I believe it was caused by his work-related efforts pushing very heavy racks of gears working [twelve] hours a day for several days in a row. He has moderately severe degenerative joint disease which has been aggravated now by his work-related injury." (Internal quotation marks omitted.)

The commissioner also noted Paret's further opinion on causation as expressed in a December 16, 2012 letter. The commissioner stated: "[Paret] states that an open left-sided medial meniscectomy from [1973] and arthroscopic meniscectomy on the right side are both substantial contributing factors to the [plaintiff's] progressive arthritic changes regarding both knees. [Paret] goes on to state that the original work injury from [1972] at Honda has been aggravated by his working at [the defendant] and that the [plaintiff's] activities involving the pushing and pulling of heavy pallets of engine and turbine parts are a substantial contributing factor in the aggravation of the [plaintiff's] preexisting left knee condition from a [1972] injury at Honda."

The deposition testimony of Lena, who evaluated the plaintiff at the request of the defendant, was entered into evidence during the hearing. The commissioner summarized Lena's testimony: "A procedure such as the [plaintiff's] left knee open meniscectomy leads to significant arthritis and total knee replacement given that the meniscus absorbs 70 [to] 80 [percent] of the weight when walking, thereby increasing the load on cartilage, which wears away.... His review of the [plaintiff's] X-rays and MRI confirmed the existence of advanced osteoarthritis, chronic ACL deficiency and joint effusion consistent with old injury and surgery, and showing that the existence of bone on bone medial compartments was consistent with the prior injury and surgery.... In his opinion, the [1972] injury was a substantial contributing factor to the [plaintiff's] left knee condition and the [plaintiff] would need a total knee replacement sooner because of it. Also, the [plaintiff's] work at [the defendant] was a contributing factor, but not a substantial contributing factor."

On the basis of the testimony and documentary evidence, the commissioner made the following findings: "The [plaintiff] had a left knee meniscectomy on November 26, 1973.... The left knee meniscectomy in 1973 was a substantial contributing factor in the [plaintiff's] development of arthritis.... The [plaintiff's] repetitive work activities of climbing up and down stairs while carrying heavy parts and fixtures, setting up a grinder while reaching and leaning on one foot, extensive pushing, pulling, reaching and lifting of heavy parts, acted in substantially and permanently aggravating his underlying and preexisting left knee condition, resulting in the need for a total left knee replacement on February 19, 2015.... The [plaintiff's] testimony regarding his physical condition and work activities was credible and persuasive.... The opinions of ... Paret were more persuasive than those of ... Lena, especially with regard to the impact of the [plaintiff's] work activities on his ultimate need for left total knee replacement."⁶

The commissioner ordered the defendant to reimburse the plaintiff for his claimed out-of-pocket expenses and to pay all claimed outstanding medical bills for...