CASE NO. 5218 CRB-3-07-4
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 27, 2008
PATRICIA A. WRIGHT-KAHN
GUARANTY FUND MANAGEMENT SERVICES
The claimant appeared pro se.
The respondents were represented by Andrew J. Hern, Esq., Law offices of Andrew J. Hern, 221 Main Street, 5th Floor, Hartford, CT 06106.
This Petition for Review from the March 29, 2007 Finding and Dismissal of the Commissioner acting for the Third District was heard November 16, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Donald H. Doyle, Jr.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant filed a Petition for Review from the March 29, 2007 Finding and Dismissal of the Commissioner acting for the Third District. In that Finding and Dismissal, the trial commissioner considered the compensability of an alleged injury sustained July 7, 1997 to the claimant’s right knee, and alleged injuries to claimant’s brain.
The pertinent facts found by the trial commissioner indicated the following. The claimant began working for the respondent in April 1997. The claimant’s duties included customer relations and account management. The claimant testified that the respondent was aware the claimant was taking prescription medications and had a pre-existing post-polio medical condition.
On October 9, 1997 the claimant filed a Form 30C notice of claim asserting that between July 7, 1997 and August 22, 1997 she suffered from repetitive emotional trauma. In that Form 30C the claimant stated:
Insults from co-workers, placing me in such an emotional state of mind I was not effective with customers causing customers to complaint (sic). I ask for help from my supervisors too no avail. I was taken home in a state of limbo. I increase my meds and sought a additional therapist.
See Finding, ¶ 4.
The Form 30C filed on October 9, 1997 did not allege a physical injury. On April 12, 1999 the claimant filed a Form 30C claiming an injury to her “Total Person.” In the Form 30C filed April 12, 1999 the claimant asserted:
I had been reinstate (sic) by the Bank on or about 4/98 for A.D.A. discrimination, the bank failed to accomadate (sic) me from date of my reinstatement causing emotional stress until I was hospitalized in 11/98 through 12/98. I was finally fired in a humiliating fashion for no go (sic) cause.
See Finding, ¶ 5.
In proceedings before the trial commissioner the claimant testified that on July 7, 1997 she injured her right knee. The claimant testified that she suffered from post-polio syndrome and due to weakness in her leg she would bang her right knee when getting on and off the counter stool. The claimant also testified she self treated with over the counter pain medications and admitted that she did not seek medical treatment for the right knee until April 1999 following the termination of her employment with the respondent. No Form 30C was filed alleging an injury to the right knee while employed with the respondent. See Finding, ¶ 28. Further, medical evidence indicated that in June 1987 the claimant underwent an arthroscopic repair of the meniscus in her right knee. As a result of that surgery the claimant was left with a 5% permanent partial disability to her right knee.
The claimant contends that as a result of her employment with the respondent she suffered a 15% permanent partial disability of her brain. The claimant also contends that she had a pre-existing disability to her eyes which was made worse when, while using the rest room at work, one of the lenses of her prescriptive eye glasses fell out and was flushed down the toilet. No written Form 30C notice of claim was filed by the claimant for an eye injury occurring while in the course of her employment with the respondent. See Finding, ¶ 48.
The claimant raised the following issues on appeal: whether the trial commissioner erred in dismissing her claims for benefits for injuries to her right knee, brain and her eyes. We begin our review with consideration of whether the trial commissioner erred in concluding the claimant did not sustain a compensable injury to her brain as a result of her employment with the respondent. The claimant argues that she sustained a mental impairment as a result of emotional trauma inflicted on her as a consequence of certain personnel actions taken by the respondent and exposure to noxious odors while employed by the respondent. Again we note that claimant’s notice of claim alleging injury to her brain failed to identify a physical injury or occupational disease from which the brain impairment arose. While claimant concedes that she suffers from a bi-polar illness she has not demonstrated how her affliction satisfies the definition of “occupational illness” under § 31-275(15). Section 31-275(15) provides,
“‘Occupational disease’ includes any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such, and includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee in the course of his employment.”
Sections 31-275(16)(B)(ii) and (iii) provide that a:
‘“Personal injury’ or ‘injury’ shall not be construed to include: A mental or emotional impairment, unless such impairment arises (I) from a physical injury or occupational disease . . . . A mental or emotional impairment that results from a personnel action, including, but not limited to, a transfer, promotion, demotion or termination . . . .”
Therefore as to claimant’s allegation of emotional trauma and the factual circumstances asserted by the claimant, claimant has not sustained her burden of proof entitling her to benefits under chapter 568.
We next consider the claimant’s allegation that she sustained a knee injury which arose out of and in the course of her employment with the respondent. Whether the claimant sustained a compensable knee injury is in large measure a factual determination to be made by the trial commissioner and as such will not be disturbed unless unsupported by the evidentiary record, based on impermissible or unreasonable factual inferences, or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). In the instant matter the claimant testified that she did not consult a doctor for her knee complaints until nearly two years after the bumping incident. She further testified that she underwent surgery on the right knee. That surgery was alleged to have been performed in 1999 by Dr. Ilan Kinori, M.D. The claimant did not proffer any reports or records from Dr. Ilan Kinori. Further, the record reflects the claimant underwent an arthroscopic repair of the right knee meniscus in 1987. That surgery was performed by Dr. William F. Greenwald. We find no basis for disturbing the conclusion drawn by the trial commissioner on this issue.
Finally, we note the appellant also argued that the trial commissioner erred in failing to find she suffered a worsening of her eyesight as a result of her employment with the respondent. Even if we were to accept the factual circumstances giving rise to the claimant’s claim on this issue, we can find no basis in our Workers’ Compensation law for awarding benefits for any additional impairment to the claimant’s eyes. Claimant did not allege that the diminishment of her eyesight was the result of a physical injury which arose out of and in the course of her employment. Therefore, there is no legal basis under our Workers’ Compensation Act to award the claimant benefits for this claim.
We therefore affirm the March 29, 2007 Finding and Dismissal of the Commissioner acting for the Third District.
Commissioners Amado J. Vargas and Donald H. Doyle, Jr., concur.