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Roche v. Danbury Hospital

CASE NO. 3592 CRB-07-97-05

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 13, 1998

CAROL ROCHE

CLAIMANT-APPELLEE

v.

DANBURY HOSPITAL

EMPLOYER

and

TRANSAMERICA INSURANCE

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Douglas J. Lewis, Esq., Evans & Lewis, 93 Greenwood Avenue, Bethel, CT 06801.

The respondents were represented by Maureen Driscoll, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550.

This Petition for Review from the April 25, 1997 Finding and Award of the Commissioner acting for the Seventh District was heard January 9, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr. and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the April 27, 1997 Finding and Award of the Commissioner acting for the Seventh District. They argue on appeal that the commissioner erred by finding that the claimant suffered a compensable injury. We affirm the trial commissioner’s decision.

During March of 1993, the claimant was employed by the respondent Danbury Hospital as a unit secretary, and was assigned to a work station designated “10 East.” Her duties included answering doctor’s orders and telephone calls, and assisting patients with filling out forms. One of the resident patients at that time was an elderly, infirm gentleman called Talerico, who was usually confined to a wheelchair with restraints. He had established a history of undoing those restraints and attempting to leave his chair. On or about March 26, 1993, Talerico was not being watched on a constant basis by a staffer. Instead, he was sitting in his wheelchair near the claimant’s work station. At some point, he unfastened his restraints, and attempted to leave his wheelchair and walk. While trying to do so, he began to fall backwards, whereupon the claimant left her desk and caught Talerico in her arms. She supported him for about one minute until a floor nurse, Carol Reilly, came over to assist her in getting the patient back into his wheelchair. The claimant continued to work following the incident, and did not file a report of injury immediately afterward. The claimant did seek medical treatment on April 8, 1993, and provided a history consistent with the above facts.

Carol Reilly testified that the claimant was a floor secretary who also acted as a Patient Care Technician depending on the demands of patients. She recalled that the claimant assisted her in putting Talerico back in his chair on at least one other occasion. She believed the incident that led to the claimant’s injury occurred sometime around March 26, 1993, although she did not remember the claimant making more than a brief, passing reference to suffering pain or injury at that time. Two other co-workers testified that the claimant might have mentioned neck pain during the time period in question, but neither could recall a specific work incident. The respondents submitted a packet of time cards into evidence that showed that the claimant did not work on Friday, March 26, but had worked on various days prior and subsequent thereto. The claimant said that she thought the accident happened on March 24, but records indicated that the claimant did not work that day either, and that Reilly was not stationed in 10 East on March 24.

The trial commissioner found that the claimant was injured in the manner represented by her in her testimony “on or about March 26, 1993.” Although she was not working on that exact date, she did work on various days around that time; unfortunately, the date of injury could not be precisely ascertained. Nevertheless, the commissioner ordered the respondents to pay the claimant’s medical expenses, and found that the claimant had been temporarily totally disabled for 20 weeks, and that she had incurred a 10% permanent partial disability of the cervical spine. The respondents have appealed that decision.

The respondents’ arguments on appeal all pertain to the circumstances of the claimant’s injury. They contend that the commissioner’s failure to find a specific date of injury precludes compensability, and that the facts demonstrate that the injury could not have occurred on any of the days suggested by the claimant. As a secondary argument, they also contend that the claimant’s job did not require her to participate in activities involving patient care or aid, and that she was acting outside the scope of her employment insofar as she prevented Mr. Talerico from falling to the floor. We remind the respondents that both of these issues encompass questions that are essentially factual rather than legal. Thus, this board is required on review to defer to the authority of the trial commissioner to find the facts and determine the credibility of the witnesses. Kish v. Nursing Home & Care, Inc., 47 Conn. App. 620, 627 (1998); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). If the facts found by the commissioner have roots in the evidence, and provide an adequate legal basis for his conclusions, the trier’s decision must be affirmed. Id.

After reviewing the transcript of the May 11, 1995 formal hearing, it is clear that there was sufficient testimony offered by the claimant, Carol Reilly, and two other witnesses, Regina Adducci and Francis Moore, to support a finding that the claimant was injured in the manner alleged. Minor discrepancies regarding the height of Mr. Talerico and the claimant’s official job duties could readily have been resolved in favor of the claimant’s case by the trial commissioner, and would probably not be outcome-determinative anyway. The claimant explained why she did not immediately report her injury after it occurred. Transcript, p. 31-32, 35-36. Francis Moore testified that, although the claimant, Carol Reilly and Tina Salaris (whom the claimant alleged was also present at the time she was injured) did not work together on March 26 or many of the workdays surrounding that date, they did all work on March 22 and March 31, 1993. Id., p. 43-47, 56-57. Reilly corroborated the claimant’s version of the events, and explained how the hospital occasionally used the secretaries to “baby-sit” certain patients.1 Id., p. 9-10. The commissioner was entitled to find all of these witnesses credible, and their cumulative testimony constitutes sufficient evidence to support his factual findings.

We have already held in a case somewhat similar to this one that the failure to prove the exact date upon which an accidental injury occurred does not preclude this Commission from exercising jurisdiction over a claim for compensation. Troske v. Wolcott View Manor, 13 Conn. Workers’ Comp. Rev. Op. 323, 325, 1687 CRB-5-93-4 (April 26, 1995). We stated in Troske that the most profound effect of a failure to state the correct date of injury is upon the § 31-294c notice provision, which requires an exact date of injury to be included. However, timely but defective notice only affects the claim itself insofar as the respondents demonstrate that they were both ignorant of the facts concerning the injury and prejudiced by the inaccuracy of the notice. Id. As the claimant points out in her brief, the respondents did not raise the issue of prejudice at trial. They also have made but a cursory mention of prejudice in their appellate brief, without explaining the manner in which they have been prejudiced. We do not believe this case warrants a remand to explore potential prejudice, as was done in Troske. Given the facts of this case, it was acceptable for the commissioner to find that the claimant’s injury occurred “on or about March 26, 1993.”

We thus affirm the decision of the trial commissioner.

Commissioners Donald H. Doyle, Jr. and Michael S. Miles concur.

1 Even if the claimant had not been asked to watch Mr. Talerico, we are loath to hold that it would have been more appropriate for her to allow the elderly patient to fall to the floor and injure himself. Recently, our Appellate Court noted that a claimant who acted contrary to the instructions of her employer in running an errand for her patient was still furthering her employer’s interests by making that trip, as she was attempting to ensure the physical safety and well-being of an elderly and terminally ill patient. Kish v. Nursing Home & Care, Inc., 47 Conn. App. 620, 625 (1998). Although the instant claimant was a secretary rather than a nurse, it is hard to imagine that she was acting outside the interests of Danbury Hospital by preventing an elderly patient from being hurt. BACK TO TEXT

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