Opinion
CASE NO. 1182 CRD-5-91-2
JUNE 30, 1992
The claimant was represented by John Scully, Esq., and Joseph A. LaBella, Esq., both of Cooney, Scully and Dowling.
The respondents were represented by David W. Schoolcraft, Esq. and Ronald Lindlauf, Jr., Esq., both of Trowbridge, Ide, Mansfield and Shaw, P.C.
The Second Injury and Compensation Assurance Fund was represented by Robin L. Wilson, Esq., and Michael Belzer, Esq. both Assistant Attorneys General. On appeal, no brief was filed by the Second Injury Fund although a representative of the Fund did appear at oral argument.
This Petition for Review from the February 19, 1991 Finding and Dismissal of the Commissioner for the Fifth District was heard January 24, 1992 before a Compensation Review Division panel consisting of the then Commission Chairman, John Arcudi and Commissioners Robin Waller and Angelo L. dos Santos.
OPINION
At issue in this appeal is the timeliness of claimant's claim under Sec. 31-294. The commissioner found there had not been a timely notice for the repetitive trauma injury alleged.
Claimant was employed in a clerical capacity from 1967 until 1983. In 1983 her job duties were altered and she was required to lift computer print-outs which she estimated weighed 35 pounds. In early 1984 she noticed pain and soreness in her right shoulder and sought medical treatment from Dr. Michael Martin, M.D. Dr. Martin prescribed physical therapy which was given at the respondent hospital. Ultimately, in 1984, she changed physicians and underwent surgery. Claimant has not returned to work since December, 1984.
The trial commissioner also found that an informal hearing at the First District office was assigned for June 18, 1985 in a hearing notice issued April 11, 1985. No written notice of claim with the Workers' Compensation Commission or with the employer was ever filed. Further claimant did not initially indicate to her physicians that her shoulder problem was work related, but instead related it to housework. Sometime in 1985 she notified the employer that she was making a workers' compensation claim.
On appeal claimant argues that the commissioner erred in finding that the request for a hearing was not made within a year of the date of injury or within a year of the date of total or partial incapacity from work or within a year from the date claimant knew or should have known that her right shoulder problem arose from the employment. While claimant cites other legal authority to support her contention, our decision in Edmounds v. Machlett Laboratories, 9 Conn. Workers' Comp. Rev. Op. 241, 1119 CRD-7-90-10 (1991) is applicable.
For the record we note that the respondents filed a cross petition for review but as the respondents were the appellees and no reasons of appeal were filed, nor were any issues discussed in respondent's brief other than those in response to the claimant appellant's appeal, the respondent's cross appeal is deemed abandoned. Practice Book Sections 4013, 4065. See also, Reale v. Carducci, 9 Conn. Workers' Comp. Rev. Op. 31, 32 901 CRD-1-89-8 note 1, citing Muha v. United Oil Co., Inc., 180 Conn. 720 (1980); State v. Samaha, 180 Conn. 565, note 1 (1980).
Edmounds was a claim for carnal tunnel syndrome. In that opinion, we reviewed our rulings in Boutin v. Industrial Components, 4 Conn. Workers' Comp. Rev. Op. 19, 237 CRD-6-83 (1987) and Pich v. Pratt Whitney, 4 Conn. Workers' Comp. Rev. Op. 163, 354 CRD-6-84 (1988). Boutin held that a carpal tunnel injury is a claim for repetitive trauma and the limitation period begins to run "when the claimant knew or should have known that her disability condition was the result of her employment." Edmounds, supra at 242, quoting Boutin, supra at 23. In Edmounds, we noted Pich, supra, was also relevant as it held that the date of injury in repetitive trauma cases is the "last day of exposure of the trauma, i.e.[,] the last day worked."
Here the trier found that claimant last worked in December, 1984. But he made no factual finding as to when, either the claimant knew or should have known that her right shoulder disability was casually related to work, or the last day of exposure to the occupationally related repetitive trauma. Without these findings it is impossible to ascertain when the limitation period began to run.
One of the other issues presented for review is claimant's seeking to amend the findings of the trial commissioner. If paragraph #3 of her March 5, 1991 Motion to Correct paragraph #7 of the February 19, 1991 Finding and Dismissal were granted it could conceivably alter the legal outcome.
This matter was first heard in the First District office before this trial Commissioner. After his appointment as Commissioner for the Fifth District, the matter was transferred to the Fifth District. At some date uncertain this panel learned that some of claimant's exhibits were not forwarded with the appeal. What steps were taken by the appellant to assure the adequacy of the record on appeal, other than that noted, uncertain. But based on the August 10, 1988 TR at 8-16 it seems there may be evidentiary support for the correction of the factual finding sought by claimant.
As the matter is being remanded in any case, the correction sought needs to be re-examined. Further the findings do not make clear that claimant underwent two surgical procedures, the first performed December, 1984 by Dr. Kenneth Dowling, the second May, 1985 also by Dr. Dowling. Claimant allegedly became unable to work after the first surgery in 1984. The findings need to show these facts.
We therefore sustain the appeal and remand for further proceedings consistent with this opinion.
Commissioners Robin Waller and Angelo L. dos Santos concur.