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Britt v. Fiskars/Wallace Manufacturing

CASE NO. 1503 CRB-1-92-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 17, 1994

ANN MARIE BRITT

CLAIMANT-APPELLANT

v.

FISKARS/WALLACE MANUFACTURING

EMPLOYER

and

EMPLOYERS INSURANCE OF WAUSAU

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Jon D. Berman, Esq. and Frank W. Russo, Esq., Berman & Russo, 819 Clark Street, South Windsor, Connecticut 06074.

The respondents were represented by David C. Davis, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, Connecticut 06066.

This Petition for Review from the August 24, 1992 Finding and Award (Dismissal) of the Commissioner for the First District was heard June 11, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review of the First District Commissioner’s August 24, 1992 decision which concluded that her claim is barred as untimely by the notice provisions of General Statutes Sec. 31-294. The claimant challenges the trial commissioner’s determination that she knew or should have known more than a year before she filed her notice of claim that her low back condition was caused or aggravated by repetitive trauma arising out of and during the course of her work with the respondent-employer. While we reject the claimant’s challenge to the commissioner’s finding concerning when the claimant knew or should have known that her back pain was causally related to work, we set aside the decision of the trial commissioner and remand for further proceedings in light of our recent decision in Seymour v. Bleich, 1484 CRB-6-92-8 (decided June 24, 1994).1

The trial commissioner found the following facts. The claimant alleges that sitting and walking associated with her employment caused an aggravation of a preexisting low back condition. Although her notice of claim alleged a specific date of injury, she testified that she was claiming a back injury as a result of repetitive trauma.

That the claimant knew or should have known that her back pain was causally related to her work for more than one year before she filed her claim, however, may not be a sufficient factual basis to support the commissioner’s conclusion that the claim was untimely under the circumstances of this case. It appears that the claimant continued to work for the respondent-employer after the date she knew or should have known of the causal connection between her back pain and her employment. It further appears that the claimant may have also continued her workplace exposure to repetitive trauma to a date which was within one year of the date when she filed her notice of claim.

“Our Appellate Court has recently made clear in Borent v. State, 33 Conn. App. 495 (1994), that a workers’ compensation claim of injury due to repetitive trauma is timely, as a matter of law, if it is made within one year of the date of last exposure, usually the last date of employment, regardless of when the claimant knew of the causal connection between the injury and work. The Borent court addressed the date of injury by looking to the date of last employment alone; it did not give any weight to a date of knowledge (discovery) which preceded the last date of employment.” Seymour v. Bleich, 1484 CRB-6-92-8 (decided June 24, 1994). The trial commissioner, however, did not make findings regarding these issues which, under our decision in Seymour v. Bleich, supra, would be determinative of the question of whether her claim for repetitive trauma injury was timely.2

“The finding in a compensation case should contain all the subordinate facts which are pertinent to the inquiry, and the conclusions of the commissioner therefrom. . . . If a finding does not conform to these requirements, . . . [this tribunal] is [not] in a position to decide whether the award was correct and just or not. . . . Cases under the Work[ers’] Compensation Act are upon a different basis from actions between ordinary litigants. No case under this Act should be finally determined when [this tribunal] is of the opinion that, through inadvertence, or otherwise, the facts have not been sufficiently found to render a just judgment. When this appears, the case must be returned to the commissioner for [further proceedings].” McQuade v. Ashford, 130 Conn. 478, 482-83 (1944).

We, therefore, set aside the decision of the commissioner and remand the case for further proceedings consistent with this opinion.

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

1 The respondents seek to dismiss this appeal based on their contention that the claimant did not timely file her Reasons for Appeal. The time for filing Reasons of Appeal was extended by this tribunal “until two weeks after [the] trial commissioner’s ruling on [the claimant’s] Motion to Correct.” The claimant’s Reasons of Appeal were timely received by the Compensation Review Board in relation to the date notice of the commissioner’s decision on the Motion to Correct was sent to the parties but untimely in relation to the date of the commissioner’s ruling on the Motion to Correct, owing to a five-day delay between those two events. Because the time for the doing of any act in relation to the perfecting of an appeal necessarily commences from the time that notice is mailed to the parties; see General Statutes Sec. 51-53; Graham v. Zimmerman, 181 Conn. 367, 370-71 (1980); see also Conaci v. Hartford Hospital, 11 Conn. Workers’ Comp. Rev. Op. 184, 1263 CRD-1-91-7 (1993); we conclude that the claimant timely filed her Reasons of Appeal and therefore deny the motion to dismiss. BACK TO TEXT

2 In paragraph 17 of his Finding and Award (Dismissal), the trial commissioner found that, on December 7, 1988, the claimant knew or should have known that her back pain was causally related to work. In that same paragraph, the commissioner also found that the “[c]laimant’s ‘repetitive trauma’ after December 7, 1988 is insignificant.” If, by the latter finding, the commissioner meant that any further exposure to repetitive trauma at work was legally insignificant because the claimant was already aware of the causal connection between her work and her back pain, then the commissioner’s finding cannot be harmonized with our recent discussion, in the Seymour case, of the relationship between the date of injury and the date of knowledge in a repetitive trauma case. If by that finding, on the other hand, the trial commissioner meant that the nature of the claimant’s work had changed such that she was no longer exposed to incidents of repetitive trauma on the job after December 7, 1988, then her continued employment might be factually insignificant for purposes of establishing the date of injury, and the statute of nonclaim (General Statutes Sec. 31-294) may very well bar her claim. On remand, the trial commissioner should therefore consider the question of the date of the claimant’s injury for purposes of the statute of nonclaim in light of the principles enunciated in Seymour v. Bleich, 1484 CRB-6-92-8 (decided June 24, 1994). BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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