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Malsan v. Town of West Hartford

CASE NO. 4746 CRB-6-03-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 27, 2004

CHARLES MALSAN

CLAIMANT-APPELLEE

v.

TOWN OF WEST HARTFORD

EMPLOYER

and

WEBSTER INSURANCE

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by James M. Quinn, Esq., Furniss & Quinn, 248 Hudson Street, Hartford, CT 06106.

The respondents were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, LLC, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the October 20, 2003 Finding and Award of the Commissioner acting for the Sixth District was heard May 28, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr. and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, Town of West Hartford and Webster Insurance, have appealed from the October 20, 2003 Finding and Award of the Commissioner acting for the Sixth District. We reverse the decision of the trial commissioner.

The pertinent facts are as follows. The claimant suffered from a compensable injury to his right wrist on April 11, 2001 during the course and within the scope of his employment as a police officer for the respondent-employer. At that time the claimant missed two days of work as a result of his injury. The respondent-employer charged these two days to workers’ compensation leave as opposed to sick leave. On September 17, 2002 the claimant awoke in the morning with pain in his right wrist. When he arrived at work he reported the ache to his supervisor and attributed the pain to his earlier April 11, 2001 work injury. The claimant treated for this pain at Concentra Medical Centers on September 17, 2002 and continued to treat there several times after that date. The claimant missed four days of work in September 2002 due to his wrist pain which the respondent-employer initially charged to workers’ compensation leave and then later changed the designation of the time off to sick leave. The trial commissioner found the claimant’s April 11, 20011 injury was compensable and the symptoms he experienced on September 17, 2002 were compensable as a result of the April 11, 2001 injury. The commissioner ordered the four sick days charged against the claimant’s sick leave to be reinstated and designated as workers’ compensation leave.

The respondents appealed the Finding and Award. The respondents contend the trial commissioner erred in concluding that the symptoms the claimant experienced on September 17, 2002 were a result of the April 11, 2001 injury. The respondents argue there is no medical evidence in the record to support such a finding. The determination of whether an injury arose out of and in the course of the employment requires the trial commissioner to make a factual finding. O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999); McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). We will uphold this factual finding as long as there is evidence in the record to support it. Ferrera v. Hospital of St. Raphael, 54 Conn. App. 345, 349 (1999). Medical evidence is not necessary to establish the cause of an injury which is a matter of common knowledge or where the cause of injury is much more likely to have occurred from a work injury than from some unknown cause. Garfola v. Yale & Towne Mfg. Co., 131 Conn. 572, 574 (1945); Hamzi v. Danbury Hospital, 4352 CRB-7-01-2 (Jan. 16, 2002), aff’d, 74 Conn. App. 911 (2003)(per curiam). However, when it is difficult to ascertain whether an injury arose out of the claimant’s employment the trial commissioner must use a medical opinion as the basis of a finding regarding causation. Murchinson v. Skinner Precision Industries, Inc., 162 Conn. 142,152 (1972); Canevari v. C.R. Gibson Co., 4231 CRB-7-00-5 (May 14, 2001).

Here, the claimant initially strained his wrist lifting a heavy piece of equipment at work on April 11, 2001. Claimant’s Exhibit A. The claimant’s later symptoms on September 17, 2002 occurred outside of the workplace approximately sixteen months after the initial injury. It is not a matter of common knowledge that a wrist sprain would cause painful symptoms without further aggravation over a year later. There is no medical evidence in the record to support the finding that the claimant’s initial work-related injury caused the later symptoms. Therefore, we reverse the trial commissioner’s determination that the September 17, 2002 symptoms were the result of the April 11, 2001 injury.2

Therefore, we reverse the October 20, 2003 Finding and Award of the Commissioner acting for the Sixth District.

Commissioners A. Thomas White, Jr. and Charles F. Senich concur.

1 Although the date in Findings, ¶ A is April 11, 2002, from a review of the record this appears to be a scrivener’s error. The correct date of the initial injury was in fact April 11, 2001. Findings, ¶ 1. BACK TO TEXT

2 Additionally, the respondents alleged that the trial commissioner erred in ordering the reinstatement of the four sick days. Respondent’s December 2, 2003 Reasons of Appeal. There is no need to address this issue because we have reversed the finding and award. BACK TO TEXT

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Page last revised: October 7, 2004

Page URL: http://wcc.state.ct.us/crb/2004/4746crb.htm

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