Russell v. Mystic Seaport Museum

The claimant was represented by Amy M. Stone, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., P. O. Drawer 929, 475 Bridge St., Groton, CT 06340.

The respondents were represented by Medina K. Jett, Esq., 55 Farmington Ave., Hartford, CT 06105.

This Petition for Review from the February 9, 1996 Ruling on Claimant’s Motion to Preclude and Finding and Dismissal of Claim by the Commissioner acting for the Second District was heard December 13, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the February 9, 1996 Ruling on Claimant’s Motion to Preclude and Finding and Dismissal of Claim by the Commissioner acting for the Second District. He argues on appeal that the trier erred by denying his Motion to Preclude and by dismissing his repetitive trauma claim. We affirm the trial commissioner’s decision.

The trier found that the claimant has been employed by the Mystic Seaport Museum as a steamboat engineer since 1987. His job running the boat requires him to shovel coal into the boiler and to manipulate steam valves constantly. While reassembling a valve, the claimant dislocated his shoulder on May 2, 1991. He was able to pull his left arm back into the socket, at which point the sharp pain that he had felt diminished. He filed an incident report with his employer, but did not take any days off from work or seek medical treatment due to the injury. He did not file a Form 30C notice of claim for this injury, and the commissioner found that the incident form he filled out does not substantially comply with the notice requirements of § 31-294c C.G.S.

The claimant continued to experience shoulder dislocations over the next few years while carrying heavy pipes or manipulating steam valves, as well as during non-work activities. He did not miss work or seek medical treatment on account of these injuries. However, by September 1993 he decided he could no longer ignore the problem and spoke about it to his supervisor. He also sought guidance from the director of the respondent’s personnel department, who told him to see a doctor and to submit the bills to his office. After initial treatment was unsuccessful, the claimant was referred to Dr. Hallberg, an orthopedic surgeon, who performed surgery on the unstable left shoulder on October 24, 1994. Dr. Hallberg was confident that the shoulder problems up to the most recent dislocation in August 1994 related back to the claimant’s initial 1991 injury, and he reported that his patient had done well since the surgery.

The claimant first notified his employer that he was going to file a workers’ compensation claim in October 1994, and filed a Form 30C on December 2, 1994, for an alleged repetitive trauma injury “prior to 9/23/94” to his left shoulder. The respondents filed three Forms 43 to contest liability, the second of which was filed on November 14, 1994, and lists as a defense the lack of timely written notice for a May 2, 1991 injury. None of those forms referenced a 1994 repetitive trauma injury. The trier ruled that the claimant’s Form 30C failed to state a specific date of injury, as “prior to 9/23/94” gives essentially no date of injury at all. Further, any repetitive trauma would have ceased on October 21, 1994, the last date of the claimant’s employment prior to surgery. See Borent v. State, 33 Conn. App. 495, 499 (1994). Thus, the commissioner denied an oral motion to preclude that the claimant had raised.

Moreover, the commissioner found that the claimant’s May 2, 1991 left shoulder injury was not the result of repetitive trauma, but a specific injury. The subsequent dislocations of his shoulder were recurrences of that injury. As the claimant did not file a timely notice of claim for the May 2, 1991 injury, the trial commissioner dismissed the claim for workers’ compensation benefits. The claimant has petitioned for review from her decision.

We will first address the denial of the Motion to Preclude. The commissioner found that the claimant’s notice of claim did not state the date of injury with sufficient certainty to warrant the granting of that motion. In a repetitive trauma case, a date of injury must be listed in the notice of claim, although a “trifling inaccuracy” in that notice does not prevent a trial commissioner from granting preclusion if it is otherwise warranted. Bonin v. Thames Valley Steel, 1492 CRB-2-92-8 (decided Feb. 14, 1997); Quinn v. Knapp, 12 Conn. Workers’ Comp. Rev. Op. 334, 335, 1470 CRB-8-92-7 (July 8, 1994). We have overlooked discrepancies of one day (Quinn) and five days (Bonin) in allowing a commissioner’s decision to grant a Motion to Preclude to stand, as there was no likelihood that the employer was misled by the error in either case.

On the other hand, we have held that the use of an injury date preceding the last date of trauma exposure by two months was insufficient to support a Motion to Preclude. Fleming v. New Haven Register, 14 Conn. Workers’ Comp. Rev. Op. 263, 265, 1945 CRB-3-94-1 (Sept. 6, 1995). We have also reversed a commissioner’s decision to grant a Motion to Preclude in a repetitive trauma case where the claimant was away from the workplace for several weeks preceding the date listed on his Form 30C, which date happened to be the date open heart surgery was performed, and which form contained a description that focused on the claimant’s surgery rather than the workplace exposure that allegedly caused it. Belletto v. Wilson Motors, Inc., 15 Conn. Workers’ Comp. Rev. Op. 223, 224-25, 2257 CRB-4-95-1 (April 29, 1996).

In the instant case, September 23, 1994 was not found to be either the last date of the claimant’s employment or exposure to incidents of trauma or the date of a particular shoulder separation. The commissioner could reasonably have determined that the sight of that date on the Form 30C would not provide legally sufficient notice to allow the respondents to investigate and respond to the claim in a timely manner, or that it might mislead the respondents. There is a certain amount of discretion that the trier has as fact-finder that this board may not usurp. See Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Further, under the circumstances of this case, the respondents’ Forms 43 may have been sufficient to constitute adequate notice to contest this case. After all, the “5/2/91” date of injury listed on all three Forms 43 was undeniably related to this particular claim. We do not find error in the commissioner’s decision to deny the claimant’s Motion to Preclude.

We next address the commissioner’s decision regarding the nature of the instant claim. The commissioner noted Dr. Hallberg’s description of the claimant’s shoulder separations as “recurrent episodes” of the May 1991 injury several times in her findings, and concluded that the claimant’s left shoulder injury was not the result of repetitive trauma. It was the claimant’s burden to prove that he suffered a repetitive trauma injury, of course. See Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). The respondents were not required to prove a negative, i.e., that the claimant did not suffer a left shoulder injury, in order to prevail in this case.

The claimant testified that his shoulder dislocations subsequent to 1991 occurred in many different situations, ranging from carrying pipes at work to reaching to turn off his alarm clock at home. Although Dr. Hallberg testified that these dislocations “probably [have] produced some wear and tear on the shoulder,” see Finding, ¶ 33, one could reasonably have concluded from his testimony that the subsequent dislocations were merely flare-ups of a condition caused by the initial May 2, 1991 injury. See Uva v. Valleries Transportation Service, Inc., 13 Conn. Workers’ Comp. Rev. Op. 106, 1625 CRB-7-93-1 (Jan. 31, 1995) (only evidence was that back injury was a recurrence, and trier erred in finding that it was a new injury caused by repetitive stress). Whether we would agree with that conclusion if we were trying the case is irrelevant; on review, we must affirm a commissioner’s decision as to the nature of an injury if it is supported by the record. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

Finally, we reach the claimant’s argument that the employer’s first report of injury and/or the employee’s incident report filed immediately after the May 2, 1991 injury constitute sufficient notice of claim under § 31-294c. The purpose of § 31-294c is to “alert the employer to the fact that a person has sustained an injury that may be compensable, . . . and that such person ‘is claiming or proposes to claim compensation under the Act.’” Black v. London & Egazarian Associates, Inc., 30 Conn. App. 295, 303 (1993), quoting Rehtarchik v. Hoyt-Messinger Corp., 118 Conn. 315, 317 (1934). The latter half of that statement is what is significant here.

Section 31-316 C.G.S. requires employers to keep records of employee’s injuries and report them to this Commission. Those reports often state much of the information required by § 31-294c, including the name of the injured employee, the date of the accident, and the injury suffered. However, a first report of injury does not inform its recipient that a workers’ compensation claim is or will be filed, and will not be construed otherwise absent very unusual circumstances. See, e.g., Hayden-Leblanc v. New London Broadcasting, 12 Conn. Workers’ Comp. Rev. Op. 3, 5, 1373 CRD-2-92-1 (Jan. 5, 1994) (trier found sufficient notice where insurer denied workers’ compensation coverage and employer incorrectly told claimant that she was too late to file a claim). That is the purpose of a Form 30C Notice of Claim.

There is no indication in this case that the respondents had any idea that the claimant intended to file a workers’ compensation claim from either his own incident report or the injury report filed by the employer. All those documents do is report that an injury occurred. In hindsight, it appears that the lack of intent to file a claim was borne out by the claimant’s inaction for over two years after the May 1991 shoulder injury. Now that the statute of limitations to file a claim has lapsed, we cannot go back and say that those reports of injury demonstrated anything more than compliance with a procedure designed to ensure compliance with § 31-316. As was the case in Otero v. Bridgeport, 13 Conn. Workers’ Comp. Rev. Op. 248, 250, 1713 CRB-4-93-4 (April 17, 1995), the fact that the claimant reported his injuries to his employer is not by itself enough to constitute substantial compliance with § 31-294.