Pacheco v. State of Connecticut Department of Corrections

The claimant was represented by Neil Johnson, Esq., 96 Webster Street, Hartford, CT 06112.

The respondent was represented by Philip M. Schulz, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the July 24, 1998 Finding and Award of the Commissioner acting for the First District was heard March 26, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the July 24, 1998 Finding and Award of the Commissioner acting for the First District. In that decision the trial commissioner found that in addition to an accepted back injury, the claimant sustained a compensable injury to his left foot when he was assaulted at work on August 12, 1993. In support of their appeal, the respondent contend that the claimant failed to file a timely notice of claim for his foot injury.

The trial commissioner found that the claimant was assaulted while at work on August 12, 1993 which caused him to sustain injuries to his back and left foot. Specifically, a co-worker hit the claimant in the back of the head, picked him up and threw him against a door, and slammed him into a file cabinet. The trial commissioner noted that the respondent agreed to pay compensation for the claimant’s back injuries which occurred as a result of the August 12, 1993 assault. Additionally, the record indicates that a stipulation was approved on January 28, 1997 which specifically states that the respondent “accepted liability for the claimant’s back condition but disclaimed liability for claimant’s left foot and other body parts alleging that they are not causally related to his employment.” (See also 1/29/98 TR. at 5).

The trial commissioner found that although the claimant injured his left foot on August 12, 1993, “treatment emphasis was placed on injury to the low back which was more troublesome than the foot at the time.” (Finding ¶ 7). Eventually, as his back condition resolved, the claimant became more aware of his foot injury and sought treatment for this condition from the orthopedic surgeon attending to his back. The claimant was referred to another orthopedic surgeon who performed surgery on the claimant’s foot. Medical reports indicate that because of severe lower back discomfort, the back condition had taken precedence over the foot. (Finding ¶ 11).

In support of their appeal, the respondent contends for the first time that the claimant failed to file a timely notice of claim for his foot injury as required by § 31-294c. Initially, in their brief the respondent contended that no Form 30C could be located, however, subsequently the respondent discovered that the claimant had filed a Form 30C Notice of Claim and forwarded a copy to this board. Although during the formal hearing the Form 30C could not be located, the Form 30C was in fact in the file.1 (3/17/98 TR. at 53). The record indicates that said notice was filed on November 15, 1993, well within one year from the date of the assault as required by the statute.

This board decided in Landrette v. City of Bristol, 11 Conn. Workers’ Comp. Rev. Op. 149, 1279 CRD-6-91-8 (Aug. 19, 1993) that a claimant who gave timely written notice of an ankle injury was not precluded from seeking benefits for a mouth injury that arose from the same incident. Even though the claimant had not notified the respondent of his dental injury until over a year had passed after the work-related incident, we held that “once the trial commissioner determined that the mouth injury was causally related to a work injury the need for any further notice of claim was unnecessary.” Id., 151, citing Hebert v. New Departure Hyatt Bearings, 4 Conn. Workers’ Comp. Rev. Op. 94, 300 CRD-6-84 (1987), no error, 14 Conn. App. 819 (1988). The board applied the same analysis in Khazzaka v. Torrington Company, 3508 CRB-5-96-12 (May 26, 1998) and Roman v. Eyelets For Industry, 3040 CRB-5-95-4 (Feb. 14, 1997), aff’d., 48 Conn. App. 357 (1998).

In the instant case, the respondent contends that the trial commissioner failed to make sufficient findings of fact which establish that he had jurisdiction to adjudicate the compensability of the claimant’s foot. We agree. Thus, because this board may not make findings of fact, we must remand this matter to the trial commissioner.

This case is thus remanded to the trial commissioner in accordance with the above.

Commissioners George A. Waldron and John A. Mastropietro concur.

1 Upon review of the file by this board, it was found that the Form 30C was in the file but was out of order and thus difficult to find. BACK TO TEXT