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Campbell v. Manchester Memorial Hospital

CASE NO. 1754 CRB-1-93-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 8, 1995

ANNE CAMPBELL

CLAIMANT-APPELLEE

CROSS-APPELLANT

v.

MANCHESTER MEMORIAL HOSPITAL

EMPLOYER

and

INSURANCE COMPANY OF NORTH AMERICA (CIGNA)

INSURER

RESPONDENTS-APPELLANTS

CROSS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Joseph LaBella, Esq. and John Thomas Scully, Esq., Cooney, Scully & Dowling, 10 Columbus Blvd., Hartford, CT 06106.

The respondents were represented by David W. Schoolcraft, Esq., Trowbridge, Schoolcraft & Basine, P.C., 207 Main St., Hartford, CT 06106.

The Second Injury Fund was not represented at oral argument.

This Petition for Review from the June 2, 1993 Finding and Dismissal of the Commissioner acting for the First District was heard June 10, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant and the respondents have both petitioned for review from the June 2, 1993 Finding and Dismissal of the Commissioner for the First District. Both appeals are based on the commissioner’s findings regarding the date of the claimant’s injury. We dismiss the respondents’ appeal and affirm that of the claimant.

The claimant’s allegation of a work-related repetitive trauma injury to her right shoulder was originally dismissed by the commissioner for lack of timely notice on February 19, 1991. After she appealed that decision to this Board, see Campbell v. Manchester Memorial Hospital, 10 Conn. Workers’ Comp. Rev. Op. 151, 1182 CRD-5-91-2 (June 30, 1992), the case was reversed and remanded for further findings. On remand, the commissioner found that the claimant’s “last day of work and the last day of her exposure to repetitive workplace trauma was December 9, 1984,” that she was totally disabled from December 10, 1984 to May 24, 1986, and that she has suffered a 50 percent permanent partial disability of her right shoulder. He also found that the claimant “suffered an injury to her right shoulder on or before February 1, 1984,” and that she knew her injury was causally connected to her work at that time. The commissioner used the February date of injury in determining that the claimant’s April 11, 1985 notice to the respondents was untimely.

Both parties now debate the legal significance of those findings as they relate to the timeliness of the claimant’s notice of claim. The respondents contend that the commissioner correctly calculated the running of the applicable statute of limitations, as the date of injury was found to be February 1, 1984, a finding which is supported by medical evidence in the record. To that end, the respondents further contend that the commissioner is not required to equate the date of injury with the last date of employment in a repetitive injury claim, and challenge the evidentiary basis of the commissioner’s finding that the last day of the claimant’s exposure to workplace trauma was the last day of her employment. The claimant, meanwhile, argues that the commissioner improperly dismissed her claim, as it is settled that the date of injury with respect to a repetitive trauma case is the later of the last day worked or the last day of exposure to the work-related incidents of trauma. The claimant contends that she is entitled to 75 and four-sevenths weeks of total disability benefits and 124 and eight tenths weeks of permanent partial disability benefits, along with statutory interest pursuant to § 31-300 C.G.S.1

Section 31-275 (16) defines “personal injury” as including, “in addition to accidental injury which may be definitely located as to the time when and the place where the accident occurred, an injury to an employee which is causally connected with his employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease.” A claimant suffering a personal injury is required by § 31-294 (c) to provide written notice of her claim for compensation within one year of the date of the accident. As a repetitive trauma injury cannot be definitely located as to time and place, see Edmounds v. Machlett Laboratories, 9 Conn. Workers’ Comp. Rev. Op. 241, 242, 1119 CRD-7-90-10 (Oct. 31, 1991), we have held that, as a matter of law, the date of injury for the purpose of § 31-294 (c) is the last day of exposure to the incidents of repetitive trauma, i.e. the last day worked. Borent v. State, 33 Conn. App. 495, 499 (1994), affirming 10 Conn. Workers’ Comp. Rev. Op. 219, 220, 1302 CRD-2-91-9 (Dec. 17, 1991); Seymour v. Bleich, 12 Conn. Workers’ Comp. Rev. Op. 312, 1484 CRB-6-92-8 (June 24, 1994); Micklos v. Iseli Co., 12 Conn. Workers’ Comp. Rev. Op. 302, 1450 CRB-5-92-7 (June 17, 1994). This construction has been endorsed by the higher courts of this state. Crochiere v. Board of Education, 227 Conn. 333, 353-54 (1993); Borent v. State, supra, 33 Conn. App. 499.

The commissioner ’s finding that the claimant was exposed to repetitive workplace trauma until her last day of work on December 9, 1984 is challenged by the respondents on evidentiary grounds. They cite the testimony of Dr. Dowling, who opined that the claimant had already torn her rotator cuff by February of 1984 and that she could not have further aggravated the injury after that, as she would have been physically unable to perform the kind of activities which had caused her tear in the first place. The commissioner was not required to credit the entirety of this testimony, however. See Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). Despite his conclusion that the claimant suffered an injury on or before February 1, 1984, he also concluded that exposure to workplace trauma continued until the last date of the claimant’s employment. There is a factual basis for both of those findings, and we will not disturb them. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

In light of the valid finding that exposure to workplace trauma continued until December 9, 1984, the finding that an injury first occurred prior to that date becomes irrelevant for the purpose of determining the timeliness of the claimant’s notice. As we stated above, the date of injury of a repetitive trauma is the last day of exposure or employment as a matter of law. Borent v. State, supra, 33 Conn. App. 499. Even where a claimant was or should have been aware that her disability or condition was the result of her employment, we have held that the last date of employment was the operative date in determining the timeliness of a claimant’s notice of claim. Seymour v. Bleich, supra, citing Borent v. State, supra. Thus, the commissioner’s finding that the claimant’s last day of exposure to repetitive workplace trauma was December 9, 1984 makes that the date of injury for the purpose of § 31-294 (c), and renders invalid his conclusion that the claimant’s notice of April 11, 1985 was untimely.

The trial commissioner’s dismissal of the claimant’s claim is reversed. The case is remanded for a determination of the rate of compensation and interest, if any, due the claimant.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

1 As the commissioner has not yet made a finding with respect to the appropriate amount of interest, if any, to award to the claimant, we do not have a conclusion to review on that issue. In light of our decision below, the commissioner will be directed on remand to consider the entitlement of the claimant to an award of interest under §31-300. See Pokorny v. Getta’s Garage, 22 Conn. App. 539, 542-44 (1990); Holevinski v. State of Connecticut/Southbury Training School, 9 Conn. Workers’ Comp. Rev. Op. 215, 217, 988 CRD-5-90-3 (Sept. 12, 1991). BACK TO TEXT

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