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Felix v. Merriam Manufacturing Co.

CASE NO. 2288 CRB-3-95-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 12, 1996

CARMEN FELIX

CLAIMANT-APPELLANT

CROSS-APPELLEE

v.

MERRIAM MANUFACTURING CO.

EMPLOYER

and

ITT HARTFORD

INSURER

RESPONDENTS-APPELLEES

CROSS-APPELLANTS

APPEARANCES:

The claimant was represented by James Giulietti, Esq., Giulietti & Morytko, L.L.C., 14 Broadway, North Haven, CT 06473-2301.

The respondents were represented by Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

These Petitions for Review from the January 30, 1995 Finding and Award of the Commissioner acting for the Third District were heard January 12, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant and respondents have both petitioned for review from the January 30, 1995 Finding and Award of the Commissioner acting for the Third District.1 The claimant argues on appeal that the commissioner erred by not finding the claimant’s entire carpal tunnel injury and treatment compensable. The respondents argue on cross-appeal that the commissioner erred by failing to bar the claim in its entirety. We affirm the trial commissioner’s decision.

The commissioner found that the claimant was employed by the respondent Merriam Manufacturing Co. (Merriam) from 1980 through December 1993. Her employment as a press machine operator involved repetitive hand motions. She began developing symptoms of carpal tunnel syndrome in 1989, and had surgery on her left wrist on August 22, 1990. Dr. Bernstein, the surgeon who performed the surgery, issued an opinion on October 31, 1991 stating that the claimant’s carpal tunnel could be related to her work at Merriam. The claimant filed a Form 30C Notice of Claim on December 20, 1991, with a date of injury of August 22, 1990. The respondents have argued that this claim is untimely, and therefore barred by the Workers’ Compensation Act.

The claimant has stated that she was unaware that her carpal tunnel syndrome was work-related until the fall of 1991, and that her claim is thus timely. She also argues that she continued to work for Merriam until at least September 27, 1991, and that her last date of exposure to the repetitive trauma was on that date, thus making her claim timely. The commissioner found that her notice was for an injury dated August 20, 1990, and that she knew or should have known that her August 1990 surgery was work-related. Thus, he ruled that the respondents were not responsible for any of the medical bills associated with the August 1990 surgery to her left wrist or any resultant lost time.

However, since the claimant’s last day of work was September 27, 1991, the commissioner found that the claimant had filed a timely notice of claim for her carpal tunnel syndrome in both her right hand (which had not yet been treated) and her left hand (excluding the August 1990 surgery, of course). The commissioner left open the possibility that the claimant could be compensated for repetitive trauma to which she was exposed subsequent to her post-surgery return to work. The commissioner ruled that medical bills for the carpal tunnel treatment would have to be apportioned by a medical report between the noncompensable August 22, 1990 surgery and treatment related to post-surgery repetitive trauma. Both parties have appealed that decision.

In analyzing this case, we keep in mind this board’s standard of review on appeal. The commissioner is charged with determining the facts of a particular case, including whether an injury arose out of and in the course of a claimant’s employment. Crochiere v. Board of Education, 227 Conn. 333, 346 (1993); Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Accordingly, it is the commissioner’s prerogative to determine the credibility of witnesses, medical reports, and other evidence. Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). This board does not retry the facts; the commissioner’s factual findings can be altered only if they are unsupported by any evidence or if they fail to include undisputed material facts. Id., 71. Likewise, the conclusions he draws from the facts must stand unless they result from the law being incorrectly applied to the subordinate facts, or from an inference illegally or unreasonably drawn from them. Fair, supra; Webb, supra.

Section 31-294c C.G.S. requires that notice of a claim for compensation be filed within one year of the date of an employee’s injury. This includes repetitive trauma injuries as defined by § 31-275(16)(A). As a repetitive trauma injury cannot be readily pinpointed to a particular time and place, we have consistently held that the date of injury for the purpose of § 31-294c is the last day of exposure to the incidents of repetitive trauma, which is usually the last date of employment. Crochiere, supra, 354; Borent v. State, 33 Conn. App. 495, 499 (1994); Campbell v. Manchester Memorial Hospital, 13 Conn. Workers’ Comp. Rev. Op. 157, 159, 1754 CRB-1-93-6 (March 8, 1995); Seymour v. Bleich, 12 Conn. Workers’ Comp. Rev. Op. 312, 313, 1484 CRB-6-92-8 (June 24, 1994). The only cases in which we have departed from that rule of law are those in which the claimant was not aware, nor could have been aware, that her disabling condition was linked to her employment until after she had left work. See Santry v. Fermont Division, D.C.A., 13 Conn. Workers’ Comp. Rev. Op. 230, 232, 1768 CRB-4-93-6 (April 13, 1995); Boutin v. Industrial Components, 4 Conn. Workers’ Comp. Rev. Op. 19, 23, 237 CRD-6-83 (March 3, 1987).

In this case, we have the opposite finding: the commissioner determined that the claimant “knew or should have known that her August 1990 surgery was related to her employment at Merriam Manufacturing.” The commissioner declined to change that finding when he denied the claimant’s Motion to Correct. Given the circumstances surrounding the injury, the claimant’s testimony, and the August 6, 1990 medical report of Dr. Bernstein disabling the claimant from work until further notice, we cannot say that such a finding was improper.

Even more importantly, the claimant underwent surgery on August 22, 1990, for left carpal tunnel syndrome, in which procedure her median nerve was released. This constituted significant treatment of her left carpal tunnel injury. In Campbell, supra, a doctor testified that the claimant had torn her rotator cuff by February 1984, and could not have further aggravated that injury afterward. The commissioner concluded, however, that exposure to workplace trauma continued until the December 9, 1994 last date of the claimant’s employment, even though he had also found that the claimant had suffered a torn rotator cuff on February 1, 1984. We held that there was a factual basis for both findings. Because exposure to workplace trauma had continued until December 9, 1984, that was the date the one-year notice period began to run--regardless of the prior rotator cuff injury, or the fact that the claimant should have been aware earlier that her injury was work-related. Id., 160; see also Seymour, supra.

Unlike the claimant in Seymour, however, the claimant here underwent surgery for her carpal tunnel syndrome on her left hand. The commissioner was entitled to find that said surgery marked the close of the period of repetitive trauma on that hand. The surgery performed here was corrective, as it was intended to alleviate the damage caused by the claimant’s prior repetitive stress. It is not improper to conclude from these facts that this event marked the end of the first period of exposure, both factually and legally. Because the commissioner found that the claimant should have known at the time of her surgery that her left hand carpal tunnel was work-related, he was entitled to conclude that her December, 1991 notice was untimely with respect to that period of repetitive trauma, including the claimant’s August, 1990 surgery.

The commissioner also found that the claimant’s notice was timely with respect to any right hand carpal tunnel injury, as well as any carpal tunnel injury to her left hand postdating the August 22, 1990 surgery and related disability. He did not determine the severity of such injuries or whether they actually caused any disability, leaving those matters to be determined at future hearings. We believe that the commissioner correctly determined that the claimant’s notice was sufficient to satisfy the requirements of § 31-294c regarding a possible carpal tunnel claim for the claimant’s right hand and left hand (excluding the August 22, 1990 surgery and its results). See Borent, supra, 499-500; Quinn v. Standard Knapp, 12 Conn. Workers’ Comp. Rev. Op. 334, 336-37, 1470 CRB-8-92-7 (July 8, 1994). As no findings were made regarding the extent of the carpal tunnel injury to the claimant’s right hand, or to her left hand after she returned to work following her surgery, any further determinations on that issue are properly the subject of further hearings.

The trial commissioner’s decision is affirmed, and both appeals are dismissed.

ANGELO L. dos SANTOS, COMMISSIONER, DISSENTING IN PART. I concur with the dismissal of the respondents’ cross-appeal, but disagree with the majority’s decision on the claimant’s appeal. There was no finding that the claimant ceased being exposed to the incidents of repetitive trauma at any time during the course of her employment at Merriam. Therefore, the repetitive trauma that caused her carpal tunnel syndrome was the product of her entire period of exposure while working for Merriam. The claimant timely filed her notice of claim approximately three months after she left work, and should not be barred from pursuing any part of her claim. Borent v. State, 33 Conn. App. 495 (1994); Campbell v. Manchester Memorial Hospital, 13 Conn. Workers’ Comp. Rev. Op. 157, 159, 1754 CRB-1-93-6 (March 8, 1995). There is no legal basis establishing that the claimant’s period of repetitive trauma was broken somehow by her August 22, 1990 surgery, and I believe that the respondents should be liable for the cost of that treatment and the disability associated with it. Accordingly, I dissent.

ROBIN L. WILSON, COMMISSIONER, DISSENTING IN PART. In contrast to Commissioner Santos, I concur with respect to the dismissal of the claimant’s appeal, but dissent as to the dismissal of the respondents’ cross-appeal. I do not believe that the possibility of a future carpal tunnel claim should be left open in this case. The claimant could easily have introduced evidence of the effects of any alleged repetitive trauma to her left hand following her return to work after August 1990 surgery, as well as repetitive trauma to her right hand. The claimant filed a Form 30C alleging carpal tunnel syndrome in both hands, and the formal hearing notice listed one of the issues as “bilateral carpal tunnel.” There was nothing that prevented the discussion of those matters at the proceedings below.

As this board recently explained in Fassett v. F. Castellucci & Sons, 2150 CRB-3-94-9 (decided Dec. 7, 1995), a claimant must offer all available evidence the first time his claim is being considered in the interest of finality and judicial economy. “We have often stated that a party is not entitled to present his case in a piecemeal fashion, with a second bite at the apple forthcoming after failing to meet his burden of proof on the first try.” Id, citing Kearns v. Torrington, 119 Conn. 522, 529 (1935). In my opinion, that is exactly what would be happening here if the claimant were allowed to leave any part of her claim open with respect to an injury that had already occurred when the Notice of Claim was filed. Accordingly, I would sustain the respondents’ appeal.

I also note that, although I agree with the result reached by the majority in affirming the dismissal of the left hand carpal tunnel claim that culminated in the August 22, 1990 surgery, my analysis of the issue differs somewhat from the Chairman’s opinion. I do not believe that the trial commissioner’s finding that the claimant “knew or should have known that her August 1990 surgery was related to her employment” has any legal bearing on the timeliness of her Notice of Claim. There is nothing in § 31-294c that allows a claimant more than one year to file a claim after a repetitive trauma injury has occurred; the knowledge-based exception regarding “manifestation of a symptom” of an occupational disease is limited solely to such diseases. As this board recently explained in Dorsey v. UTC/Norden Systems, 2268 CRB-7-95-1 (decided Sept. 6, 1996), repetitive trauma injuries are legally different from occupational diseases, and the Workers’ Compensation Act expressly provides only one year after exposure to the incidents of trauma has ceased in which to file a claim. See Crochiere v. Board of Education, 227 Conn. 333, 346 (1993); Borent v. State, 33 Conn. App. 495, 499 (1994). Thus, I would simply limit my analysis to the fact that the claimant filed her Form 30C more than one year after her August 22, 1990 surgery.

1 The claimant also withdrew her February 7, 1995 petition for review from the commissioner’s January 30, 1995 Finding and Award regarding her September 27, 1991finger injury. BACK TO TEXT

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