Khazzaka v. Torrington Co.

The claimant was represented by Ross Lessack, Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., Westgate Office Center, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The respondents were represented by Kristen Sotnik Falls, Esq., Letizia, Ambrose & Cohen, P.C., One Church Street, New Haven, CT 06510.

This Petition for Review from the January 13, 1999 Finding and Award of the Commissioner acting for the Fifth District was heard September 10, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, COMMISSIONER. The respondents have petitioned for review from the January 13, 1999 Finding and Award of the Commissioner acting for the Fifth District. They contend on appeal that the trier erred by finding that the claimant was not precluded by § 31-294c from claiming benefits. We affirm the trial commissioner’s ruling, as this board has already issued a decision addressing this issue.

This case originates in the surgical department at the respondent Torrington Company, where the claimant was occupied belting surgical wraps. This task required her to hold a belt with her left thumb while she used tweezers to insert a spring into the wrap, after which she would push down the spring with her right thumb and then turn it. The claimant began developing pain and clicking in her right thumb in August 1993. She reported her condition to her supervisor, which led to the respondents acceptance and payment of benefits for a trigger finger right thumb injury. The claimant treated with Dr. Hendrikson over the next ten months, and had surgery on March 24, 1994. She also began to complain about her left thumb, which the doctor diagnosed with flexor tenosynovitis. She returned to work on June 20, 1994, where she began doing inspection work that, though less strenuous, still required the use of a staple gun. She continued at this job for several months before leaving the respondent’s employ in September 1994.

The claimant subsequently began seeing Dr. Hendrikson again in June 1995, with complaints of pain in her right hand and right fifth finger, and occasional pain in her left hand and left second and third fingers. She later added complaints of pain and numbness in her right third and fourth fingers and her right elbow. The doctor diagnosed nerve compression, flexor tenosynovitis and carpal tunnel compression, which he opined were all related to the claimant’s job at the Torrington Company through August 1993. The claimant did not file a request for an informal hearing regarding these injuries until October 6, 1995. The trial commissioner originally ruled that this notice of claim was timely under § 31-294c. See December 13, 1996 Finding and Award. This board was obligated to reverse that ruling, as the informal hearing request was made over a year after the date of the claimant’s last possible exposure to workplace repetitive trauma in September 1994. Khazzaka v. Torrington Co., 3508 CRB-5-96-12 (May 26, 1998).

This was not the end of the case, however. We also held that pursuant to Landrette v. City of Bristol, 11 Conn. Workers’ Comp. Rev. Op. 149, 1279 CRD-6-91-8 (Aug. 19, 1993), and those cases that have followed its reasoning, the claimant might still maintain her claim. By virtue of the respondents’ acceptance of the claimant’s right thumb injury in 1993, it would not be necessary for the claimant to file a separate notice of claim for any other conditions related to that same repetitive trauma. We reasoned that, although a repetitive trauma injury “is not clearly defined and demarcated the same way a sudden accidental injury usually is,” a period of repetitive trauma is as much a compensable event as a fall down a flight of stairs (the accidental injury in Landrette). As a commissioner has jurisdiction to hear all matters arising from a claimant’s injury once it has been accepted; Hebert v. New Departure Hyatt Bearings, 4 Conn. Workers’ Comp. Rev. Op. 94, 95, 300 CRD-6-84 (1987), no error, 14 Conn. App. 819 (1988) (per curiam); we held that, as long as the trier found that the claimant’s current hand injuries and carpal tunnel syndrome were caused by the same repetitive trauma that led to her accepted trigger thumb, the claimant’s failure to file a timely Form 30C for those injuries would not be fatal to her claim. We then ordered the matter remanded to the trial commissioner for findings on that issue.

The respondents appealed our decision to the Appellate Court, which dismissed the appeal on September 30, 1998 for lack of a final judgment below. Another formal hearing was held by the trial commissioner on November 3, 1998. His subsequent Finding and Award adopted all of the findings of fact in his previous Finding and Award, and went on to find Dr. Hendrikson’s report credible. The trier stated that “any light duty work performed subsequent to August, 1993 did not aggravate or cause the claimant’s conditions as set forth in paragraph H. above,” namely, her bilateral carpal tunnel syndrome, her right cubital tunnel and ulnar nerve compression, her right fifth trigger finger, and her right third and fifth finger and left thumb flexor tenosynovitis. Findings, ¶¶ H, I. He thus concluded that a notice of claim for these injuries was unnecessary, and ruled them compensable. The respondents have again sought review before this board.

The respondents do not challenge the factual findings of the trial commissioner on appeal. Instead, they raise two arguments: (1) that the claimant failed to satisfy § 31-294c by filing a timely notice of claim or satisfying any of the statutory exceptions to the notice requirement, and (2) that this board’s analysis in the previous Khazzaka decision was incorrect because cases such as Landrette, supra, and Roman v. Eyelets for Industry, 3040 CRB-5-95-4 (Feb. 14, 1997) aff’d., 48 Conn. App. 357 (1998), involved specific, accidental injuries, while the instant case involves a repetitive trauma claim where no written notice was provided for the original accepted injury. The first set of issues was clearly before this board in the previous decision, and need not be readdressed. We have already held that the claimant did not satisfy § 31-294c or its statutory exceptions with respect to her current claim. See Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 293 (1999) (determination made by appellate court establishes law of case upon retrial, and will be treated as correct until the question comes before a higher court).

As for the second argument, the claimant doubtless did not bother to file a Form 30C for her original right thumb injury because her employer began providing treatment for it as soon as the claimant reported it to her supervisor, accepted its compensability, and paid benefits. A First Report of Injury was also completed. See Dec. 13, 1996 Finding and Award, ¶ 8-12. Presumably, therefore, the respondents investigated that injury, and decided that it was indeed related to her employment. When other symptoms later arose from the same trauma that caused the original injury, the law did not demand that we should require more of this particular claimant than we required of the claimants in Roman and Landrette, who both found it necessary to file a Form 30C before claiming benefits. There was an accepted right thumb injury, the trier reasonably found that this injury and the claimant’s current symptoms all resulted from the same trauma, and the later injuries were also deemed compensable. We made our determination of the law relevant to that factual scenario in Khazzaka I. As the appellants have not challenged the trial commissioner’s findings, and we are aware of no new evidence or higher court decision that casts doubt upon our prior holding; see Bowman, supra, 294; we shall stand by our previously articulated reasoning.