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Tobin v. Kimberly-Clark Corporation

CASE NO. 2045 CRB-7-94-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 18, 1996

KENNETH F. TOBIN

CLAIMANT-APPELLANT

v.

KIMBERLY-CLARK CORPORATION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Scott R. McCarthy, Esq., Guendelsberger & Taylor, 28 Park Lane, New Milford, CT 06776.

The respondent was represented by Philip F. Spillane, Esq., Baker, Moots & Pellegrini, 48 Main St., P. O. Box 1319, New Milford, CT 06776.

This Petition for Review from the May 10, 1994 Finding and Dismissal of the Commissioner acting for the Seventh District was heard March 24, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

ROBERTA SMITH TRACY, COMMISSIONER. The claimant has petitioned for review from the May 10, 1994 Finding and Dismissal of the Commissioner acting for the Seventh District. He argues on appeal that the trial commissioner improperly concluded that notice of his claim for bilateral carpal tunnel syndrome was untimely. We affirm the trial commissioner’s decision.

The claimant had been employed by the respondent since 1958. On May 24, 1990, he filed a Form 30C notice of claim alleging that on June 29, 1989, he sustained injuries to both hands as a result of repetitive trauma. On May 31, 1990, the respondent filed a Form 43 notice of intention to contest that claim on three grounds, including the untimeliness of the claimant’s notice of claim.

The commissioner found that the claimant’s hand symptoms arose out of and in the course of his employment with the respondent, and constituted a repetitive trauma injury. However, he also found that the claimant first sought medical care for the hand problems on March 17, 1989, when he visited his family physician, Dr. Kurland. Dr. Kurland reported that the claimant felt that his repetitive work at Kimberly-Clark was responsible for his pain, and diagnosed “probable carpal tunnel syndrome.” After a referral to Dr. Ranade, a neurologist, confirmation of carpal tunnel syndrome was communicated to the claimant on June 30, 1989. The commissioner concluded that the claimant “knew or should have known” of his condition on March 17, 1989, the date of his first visit to Dr. Kurland, thus triggering the start of the one-year notice period for repetitive trauma injuries. Because a Form 30C was not filed until May 24, 1990, the commissioner ruled that the claim was barred by § 31-294 C.G.S. and dismissed the case. The claimant petitioned for review from that decision.

The claimant argues here that the commissioner erroneously denied his Motion to Correct. According to the claimant, the allegedly undisputed proposed findings compel the conclusion that he filed his claim in a timely manner because he was unaware that his carpal tunnel syndrome was work-related until June 30, 1989. On review of the denial of a Motion to Correct, this board may not alter a commissioner’s findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed material facts. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995). A Motion to Correct also may be denied properly where the corrections are immaterial because the outcome of the case would not be altered by the substituted findings. Id.; Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994).

The claimant sought a number of corrections tending to support the notions that Dr. Kurland did not diagnose carpal tunnel syndrome on March 17, 1989, and that the claimant’s suspicion that his symptoms were work-related was not confirmed until July 17, 1990. In his December 9, 1992 deposition, however, Dr. Kurland stated that he probably told the claimant that, if his condition was in fact carpal tunnel, it was likely related to repetitive wrist activity. (Transcript, p. 6). The commissioner was entitled to credit that testimony, which provides support for his denial of the requested correction stating that the doctor did not tell the claimant that his probable carpal tunnel was work-related on March 17, 1989. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 1859 CRB-5-93-9 (May 12, 1995). The fact that the claimant was not completely certain of his diagnosis until June or July did not reduce to a mere suspicion his awareness of the relationship between his injury and his employment. See Bremner v. Eidlitz & Son, Inc., 118 Conn. 666, 669-70 (1934). However, as explained below, the claimant’s Motion to Correct would have had no legal impact on the outcome of this case even if it had been granted.

Section 31-294c requires a notice of claim for compensation to be filed within one year from the date of injury in repetitive trauma cases. Crochiere v. Board of Education, 227 Conn. 333, 353 (1993); Seymour v. Bleich, 12 Conn. Workers’ Comp. Rev. Op. 312, 314, 1484 CRB-6-92-8 (June 24, 1994). “As a matter of law, the date of injury of a repetitive trauma is the last day of exposure, which is usually the last day of employment.” Borent v. State, 33 Conn. App. 495, 499 (1994). Because the findings indicate that the claimant’s exposure to repetitive trauma approximately ceased in 1980, when he was promoted to shift superintendent, the operative “last day of employment” in this case for purposes of determining the date of injury is not necessarily June 29, 1989 as alleged in the claimant’s Form 30C. See Campbell v. Manchester Memorial Hospital, 13 Conn. Workers’ Comp. Rev. Op. 157, 1754 CRB-1-93-6 (March 8, 1995). Rather, that day would probably have occurred long before. Id., 159-60.

Significantly, this board has recently overruled the doctrine that delays the running of the statute of non-claim until the connection between the employment and the disability has or should have been realized by the claimant. Dorsey v. UTC/Norden Systems, 2268 CRB-7-95-1 (decided September 6, 1996); see also Discuillo v. Stone & Webster, 43 Conn. App. 224, 227 (1996) (whether a heart attack is labeled accidental injury or repetitive stress injury is of no consequence, as one-year filing period began running on last date of claimant’s employment). Thus, the claimant’s reliance on cases such as Santry v. Fermont Division, 13 Conn. Workers’ Comp. Rev. Op. 230, 1768 CRB-4-93-6 (April 13, 1995), and Boutin v. Industrial Components, 4 Conn. Workers’ Comp. Rev. Op. 19, 23, 237 CRD-6-83 (March 3, 1987), is of no avail. Even if he were to establish that he was unaware of the connection between his employment and his injury until July 1989, his claim would still be untimely as a matter of law.

The trial commissioner’s decision is therefore affirmed.

Commissioner Amado J. Vargas concurs.

JESSE M. FRANKL, CHAIRMAN, CONCURRING. Although I agree with the result and most of the reasoning in the majority opinion, I write separately to note that I do not believe that a claimant who is unaware of the connection between his repetitive trauma injury and his employment until after said employment has ceased is still required to file a claim within one year from the last date of employment. As I discuss in detail in my dissent in Dorsey v. UTC/Norden Systems, 2268 CRB-7-95-1 (decided September 6, 1996), I would not overrule the doctrine that delays the running of the statute of non-claim until the connection between a claimant’s repetitive trauma injury and employment is or should have been realized.

Workers’ Compensation Commission

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