Britt v. Wallace Manufacturing

The claimant was represented by Frank Russo, Esq., Berman and Russo, 819 Clark St., South Windsor, CT 06074.

The respondents were represented by David C. Davis, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066.

This Petition for Review from the January 24, 1995 Findings of Facts and Dismissal of the Commissioner acting for the First District was heard January 12, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the January 24, 1995 Findings of Facts and Dismissal of the Commissioner acting for the First District. She is appealing from the commissioner’s decision that her claim is barred on the ground that untimely notice was filed pursuant to § 31-294 C.G.S. After careful review, we affirm the trial commissioner’s decision.

The claimant has alleged that sitting and walking associated with her employment caused an aggravation of a preexisting low back condition. She testified that her injury resulted from repetitive trauma, though her January 4, 1990 notice of claim cited an April 21, 1989 date of injury and did not mention repetitive trauma. In an initial August 24, 1992 Findings of Facts and Award, the trial commissioner found that the claimant knew or should have known that her condition was causally related to her work more than one year before she filed her claim. He thus concluded that claimant was barred by the notice provisions of § 31-294.

Our appellate court has concluded that pre-existing knowledge of the causal connection between work and a repetitive trauma injury is not a valid reason to preclude an individual from filing a worker’s compensation claim, because the one-year notice period begins running from the last date of exposure, which is usually the last date of employment. See Britt v. Fiskars, 12 Conn. Workers’ Comp. Rev. Op. 375, 376-77, citing Borent v. State, 33 Conn. App. 495 (1994). Therefore, this finding did not give the trial commissioner sufficient reason to find that the claimant had violated the notice provisions of § 31-294. Consequently, this board remanded the instant case for further clarification of the commissioner’s decision. Britt v. Fiskars/Wallace Mfg., 12 Conn. Workers’ Comp. Rev. Op. 375, 1503 CRB-1-92-9 (Aug. 17, 1994).

In a subsequent January 24, 1995 Finding and Dismissal, the trial commissioner found that on December 9, 1988 the claimant suffered an L4-5 disc herniation, and that her sitting at work from December 3, 1988 through December 9, 1988 substantially contributed to the herniation. The trial commissioner further found that the claimant’s work subsequent to December 9, 1988 did not expose her to additional incidents of repetitive trauma. He thus concluded that since the respondent employer did not receive notice of the claim until January 4, 1990, the claimant was barred by the notice provisions of § 31-294.1

The claimant contends that her notice of injury was timely under § 31-294. She points out that the Compensation Review Board’s remand instructed the trial commissioner to consider the date of claimant’s injury for purposes of the statute of nonclaim in light of the principles set forth in Seymour v. Bleich, 12 Conn. Workers’ Comp. Rev. Op. 312, 1484 CRB-6-92-8 (June 24, 1994), and indicated that the key question was whether the nature of claimant’s work had changed such that she was not exposed to incidents of repetitive trauma after December 9, 1988. See Britt v. Fiskars/Wallace Mfg., 12 Conn. Workers’ Comp. Rev. Op. 375, 1503 CRB-1-92-9 (Aug. 17, 1994). The claimant’s work duties from December 9, 1988 to April 12, 1989 were the same as they had been prior to December 9, 1988. She thus contends that she was exposed to the same incidents of repetitive trauma through April 12, 1989 as she had been prior to December 9, 1988. As such, the Notice of Claim she filed on January 4, 1990 would have been in compliance with § 31-294. The claimant also suggests that many of the commissioner’s findings regarding expert medical testimony were contradicted by evidence in the record.

“[A]s a matter of law, the date of injury for a repetitive trauma is the last day of exposure, which is usually [but not always] the last day of employment.” See Borent v. State, 33 Conn. App. 495, 499 (1994) (citations omitted) (emphasis added). This is true regardless of when a claimant becomes aware of the relationship between the injury and his job. Seymour, supra, 314; see also Discuillo v. Stone & Webster, 43 Conn. App. 224, 226-27 (1996); Dorsey v. UTC/Norden Systems, 2268 CRB-7-95-1 (decided Sept. 6, 1996). Since a commissioner is not required to find that the last day of employment is the date of injury, the trial commissioner in the instant case had a legal basis on which to ground his finding that the claimant’s work-related activities contributed to her injuries until December 9, 1988, but not after. See Knapp v. City of New London, 14 Conn. Workers’ Comp. Rev. Op. 325, 2002 CRB-2-94-3 (September 15, 1995).

In Campbell v. Manchester Memorial Hospital, 13 Conn Workers’ Comp. Rev. Op. 157, 1754 CRB-1-93-6 (March 8, 1995), this board declined to rule in favor of a respondent who contended that a trial commissioner was not required to equate the date of injury in a repetitive trauma claim with the last day of employment. In Campbell, though, a factual basis existed to support the trial commissioner’s findings that the last day of the claimant’s exposure to workplace trauma was the last day of her employment. Campbell, supra, at 160. Had the facts warranted it, an opposite finding would also have been permissible. Because the commissioner is the finder of fact during a formal hearing, and has the power to determine the credibility of the evidence, Fair v. People’s Savings Bank, 207 Conn. 535, 540 (1988), it would not be proper for this board to disturb the commissioner’s findings here.

Campbell is also similar to the instant case insofar as evidence exists in the record to support the commissioner’s factual findings. Testimony from both Dr. Ciccarelli and Dr. Tolisano support the trial commissioner’s finding that claimant’s work subsequent to December 9, 1988 did not expose her to further incidents of repetitive trauma. As the challenged finding is both supported by evidence and a sufficient legal basis for the trial commissioner’s conclusion, we will not disturb it on review. See Fair, supra, 539.

The trial commissioner’s decision is affirmed.

Commissioner George A. Waldron concurs.

ROBIN L. WILSON, COMMISSIONER, CONCURRING. I agree with the entire majority opinion, writing separately only to stress that the recent decision of our Appellate Court in Discuillo v. Stone & Webster, 43 Conn. App. 224 (1996), supports the majority opinion of this board in Dorsey v. UTC/Norden Systems, 2268 CRB-7-95-1 (decided Sept. 6, 1996). Repetitive trauma injuries have the same one-year notice period as accidental injuries under § 31-294 C.G.S., with the clock beginning to run from the date of last exposure to the incidents of repetitive trauma. It does not matter if a claimant is aware of the causal relationship between his job and his injury before the exposure ceases, or if he is unaware of said relationship until long after the exposure has ceased. The one-year notice period stands firm. See Discuillo, supra, 226-27.

1 § 31-294 (now § 31-294c) provides that “[n]o proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident . . . which caused the personal injury . . . .” BACK TO TEXT