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Niebler v. Waldbaum’s Foodmart

CASE NO. 1851 CRB-3-93-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 11, 1995

VIRGINIA NIEBLER

CLAIMANT-APPELLEE

v.

WALDBAUM’S FOODMART

EMPLOYER

and

CRAWFORD & COMPANY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Frank M. Grazioso, Esq., Grazioso & Hosen, P.O. Box 2025, 746 Chapel St., New Haven, CT 06510.

The respondents were represented by William Brown, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066.

This Petition for Review from the September 7, 1993 Finding and Award of the Commissioner acting for the Second District was heard October 7, 1994 before a Compensation Review Board Panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents appeal the Finding and Award issued on September 7, 1993 in which the trial commissioner concluded that the claimant’s back injury was compensable. In support of their appeal, the respondents contend that the claimant’s injury occurred at her home, and thus did not arise out of or in the course of her employment. We disagree.

The trial commissioner found that the claimant, while working as the seafood manager for the respondent employer, sustained an injury to her back due to the repetitive trauma of lifting and moving heavy containers of fish and lobster during the second week of June, 1991. Specifically, the trial commissioner found that the claimant’s work duties caused her to suffer low back strain and stress, which weakened the claimant’s back, and culminated in a disc herniation and bulges during a “minor bending incident” at her home on June 18, 1991. The trial commissioner concluded that the claimant’s work activity was the primary cause of her low back disability.

Whether the trier erred in finding that the claimant’s injury arose out of and in the course of her employment requires a factual determination which we will not disturb unless it is found without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Northrop v. Boehringer Ingelheim, 9 Conn. Workers’ Comp. Rev. Op. 228, 1032 CRD-7-90-6 (Oct. 30, 1991). The Connecticut Supreme Court has defined the necessary causal connection between injury and employment as follows: “The causal connection required to be established is that the employment was the proximate cause of the injury...” Cole v. Norwalk Wilbert Vault Co., 4 Conn. Workers’ Comp. Rev. Op. 155,156, 330 CRD-2-84 (Feb. 26, 1988) (quoting Madore v. New Departure Mfg. Co., 104 Conn. 709, 713 (1926)). In determining proximate cause, we employ a “substantial factor” analysis. Id.

The determination of proximate cause presents a factual issue. Cale v. Correia Excavators, Inc., 12 Conn. Workers’ Comp. Rev. Op. 338, 1662 CRB-1-93-3 (July 8, 1994). Causation may be interrupted where an intervening event, such as a new injury, has played a causal role in the claimant’s subsequent disability. Id. However, the Connecticut Supreme Court has stated that: “In the production of results many circumstances often play a part of so minor a character that the law cannot recognize them as causes ... ” McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 118 (1987) (citation omitted).

In the instant case, there was ample evidence presented at the formal hearing to support the conclusion that the substantial cause of the claimant’s back injury was not her act of bending in her home on June 18, 1991, but that the substantial cause was her strenuous lifting duties at work during the week prior to June 18, 1991. We agree with the trial commissioner’s determination that the claimant’s act of bending was a “trivial” incident which did not constitute an intervening act such as to interrupt the chain of causation stemming from the heavy lifting at work.

We therefore affirm the trial commissioner’s decision, and dismiss the respondents’ appeal. Pursuant to § 31-301c(b) C.G.S. we grant interest, at the rate permitted by § 37-3a C.G.S., on any amount remaining unpaid during the pendency of the appeal.1

Commissioners Angelo L. dos Santos and Michael S. Miles concur.

1 The claimant also requests reasonable attorney’s fees pursuant to §31-300 C.G.S. based upon the contention that the respondents unreasonably contested liability. Such an award is in the discretion of the trial commissioner. Wheeler v. Bender Plumbing Supply of Waterbury, Inc., 10 Conn. Workers’ Comp. Rev. Op. 140, 1186 CRD-5-91-3 (June 5, 1992). BACK TO TEXT

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