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Bayne v. Laidlaw Transit, Inc.

CASE NO. 1361 CRD-7-91-12

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

DECEMBER 23, 1993

LESLIE A. BAYNE

CLAIMANT-APPELLEE

v.

LAIDLAW TRANSIT, INC.

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

NATIONWIDE INSURANCE

INSURER

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Marilyn F. Marmai, Esq. and Bruce J. Corrigan, Jr., Esq., 1720 Post Road East, P.O. Box 269, Westport, CT 06881.

The respondent-employer was represented by Michael L. Tierney, Esq., Cotter, Cotter and Sohon, P.C., P.O. Box 5660, Bayview Station, Bridgeport, CT 06610.

The respondent-insurer was represented by David D. Chapman, Esq., Law Office of Larry Lewis, 639 Research Parkway, Meriden, CT 06450 who did not file a brief.

This Petition for Review from the December 9, 1991 Finding and Award of the Commissioner for the Seventh District was heard January 8, 1993 before a Compensation Review Board panel consisting of Commissioners John A. Arcudi, George A. Waldron and Donald H. Doyle, Jr.

OPINION

JOHN A. ARCUDI, COMMISSIONER. Two contentions form the basis for the respondent’s appeal, (1) the repetitive traumatic back injury claim was time barred and (2) there is insufficient factual basis in the testimony for the conclusion that claimant’s disability arose out of the employment.

Claimant had suffered a compensable back injury while employed by this employer April 17, 1986. This only disabled him for a few days after which he returned to light duty work for a month. Following that, he resumed full duty as a diesel mechanic and continued to perform the full duties of that job until September, 1989. In the meantime, the 1986 employer Candlewood Valley Bus Co. was purchased by Laidlaw Transit, Inc. While at work for the successor employer he reinjured his back. He was found by the Seventh District to be totally disabled from September 3 through November 20, 1989. The commissioner further found that he had sustained a ten (10%) percent permanent partial disability of the back as a result.

It is undisputed that a notice of claim was filed.1 However, the respondent argues that because that notice did not allege a repetitive trauma injury, the first repetitive trauma claim having been made in 1991, the commissioner was barred from finding a repetitive trauma back injury. The written notice statute, Sec. 31-294, now Sec. 31-294c, C.G.S., simply requires the notice to “state, in simple language, the date and place of the accident and the nature of the injury resulting therefrom” within one year. As we noted in footnote 1, claimant’s October 16, 1989 notice gave the date of two back injuries, April 17, 1986 and September 3, 1989 which occurred while he was working on buses for the first named employer and then latterly with the successor employer.

That notice was sufficient to satisfy the statute and it was within one year of the September, 1989 injury. The statute does not require the recital of a medical diagnosis, Pagan v. Paparazzo’s & Son, 6 Conn. Workers’ Comp. Rev. Op. 38, 41, 653 CRD-5-87 (1988); nor does it require the articulation of the legal theory of recovery, Ebrech v. Cadbury Schweppes, Inc. 6 Conn. Workers’ Comp. Rev. Op. 120, 121, 687 CRD-7-88-1 (1989). A “simple language” statement of the injury and the date of the occurrence is enough. Here, the employer had timely notice of the back injury. The commissioner’s conclusion that the injury was the result of three and one half years repetitive trauma at work rather than the single September 3, 1989 lifting incident cannot be faulted for lack of timely notice.

Respondent’s argument that claimant’s September 3, 1989 hospitalization for the back injury was for events unrelated to the work relies on only part of the testimony. The commissioner, on the other hand, seems to have relied on the testimony of the orthopedic surgeon, Dr. Robert J. Orlandi of New Milford, who testified that the injury was caused by years of heavy lifting at work. Where there is conflicting evidence, we cannot disturb the conclusions drawn by the trier of fact, Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

In 1986, Candlewood had been insured by Nationwide Insurance Co.; in 1989, the successor employer, Laidlaw, was self-insured. Laidlaw argues that part of the ten (10%) percent permanent partial back disability found after 1989 should be attributed to the 1986 incident, the responsibility of Nationwide. The commissioner ruled otherwise finding that although claimant may have suffered some back symptoms during the period, there had been no medical treatment and no lost work time in the three and one half years between the first and second disabilities. Also, there had not been any rating of permanent partial incapacity resulting from the 1986 incident. These facts support the commissioner’s conclusion that no permanent partial disability arose from the 1986 work injury.

We affirm the trial commissioner and dismiss the appeal.2

Additionally, pursuant to Sec. 31-301c(b), we grant interest at the rate permitted by statute on any benefits remaining unpaid during the pendency of the appeal.

Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.

1 The claimant filed a notice of claim for compensation (Form 30-C) on October 16, 1989, which alleged that while in the employ of Laidlaw Transit, Inc. he sustained the following injuries arising out of and in the course of employment, first on April 17, 1986 and, second, on September 3, 1989: “On April 17th, 1986, Leslie Alan Bayne, a diesel (sic) mechanic, strained/sprained his back while lifting a 200 lb. spring to be installed in a bus owned by Laidlaw Transit, Inc. Mr. Bayne was taken to the emergency room of New Milford Hospital and subsequently missed 3-4 days of work. Since that incident, Mr. Bayne has experienced periodic pain. During the weeks preceding September 3, 1989, Mr. Bayne was working long hours in preparing the school buses owned by Laidlaw Transit for the commencement of the school year. Again, Mr. Bayne had to lift a 200 lb. spring into a bus by himself. At that time, he felt pain, but continued to work. On September 3, 1989, at a home of a friend, Mr. Bayne bent down and threw out his back. He was taken by ambulance to Danbury Hospital then to New Milford Hospital and subsequently has not returned to work.” BACK TO TEXT

2 Although neither party sought to correct an obvious mistaken date in paragraphs 8 and 18 of the Finding and Award, we correct the date in both paragraphs from “September 3, 1991” to “September 3, 1989.” See Debarros v. Singleton, 6 Conn. Workers’ Comp. Rev. Op. 22, 498 CRD-5-86 (1988), no error, 21 Conn. App. 107 (1990). The erroneous recitation of these dates neither affected the commissioner’s decision nor supplies a basis for reversal on appeal. Id. BACK TO TEXT

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