1687 CRB-5-93-4; Troske v. Wolcott View Manor;
CASE NO. 1687 CRB-5-93-4
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 26, 1995
THERESA TROSKE CLAIMANT-APPELLEE
WOLCOTT VIEW MANOR EMPLOYER and TRAVELERS INSURANCE CO. INSURER RESPONDENTS-APPELLANTS
The claimant was represented by David Morrissey, Esq., 203 Church Street, P. O. Box 31, Naugatuck, CT 06770.
The respondents were represented by Robert S. Cullen, Esq., 1952 Whitney Avenue, Hamden, CT 06517-1209.
This Petition for Review from the March 26, 1993 Finding and Award of the Commissioner acting for the First District was heard June 24, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.
JESSE M. FRANKL, CHAIRMAN. The respondents petitioned for review from the March 26, 1993 Finding and Award of the Commissioner for the First District. They argue on appeal that the commissioner improperly found that the claimant sustained an accidental injury arising out of and in the course of her employment because he made no subordinate finding as to the date and month the injury occurred. They also argue that the commissioner found other facts without supporting evidence. We affirm the trial commissioner’s finding that the injury was compensable, but remand to the Fifth District to determine whether the respondents were prejudiced by the claimant’s failure to fix the exact date of injury.
The claimant, a licensed practical nurse, began her employment with the respondent Wolcott View Manor on March 1, 1990. She worked two twelve-hour shifts each week, from 7:00 p.m. to 7:00 a.m. beginning on Saturday and Sunday nights. The claimant alleges that she suffered a back injury while helping a patient into her bed. Although the claimant could not remember the specific date of the incident, the commissioner found that the she reported the incident to her charge nurse and to her supervisor during the same shift in which it happened. It appears from the evidence that the incident probably occurred sometime in November of 1990.
The claimant first sought medical attention for back pain on December 3, 1990, and was diagnosed with a lumbar strain. The claimant initially assumed that the pain was related to her menstrual cycle. She became aware of the connection between her back pain and the incident at work only after she saw a neurologist in April of 1991. The claimant filed a Form 30C on June 13, 1991, alleging that she injured her back at work in November 1990. No date of the month was specified.
The commissioner found that the claimant subsequently underwent spinal surgery and was disabled totally or partially. He concluded that the claimant’s back injury arose out of and in the course of her employment with Wolcott View Manor, and ordered the respondent to pay all benefits that become due under the Workers’ Compensation Act. The respondents have appealed from that ruling.
First, the respondents contend that the finding of a compensable injury cannot stand because the claimant has not proved exactly when the injury occurred. Under the Workers’ Compensation Act, an employee is entitled to compensation for personal injuries arising out of and in the course of employment. Section 31-284(a) C.G.S. Personal injuries are defined by § 31-275(16) C.G.S. as accidental injuries “which may be definitely located as to the time when and the place where the accident occurred,” along with repetitive trauma injuries and occupational diseases. The respondents argue that the claimant has not met her burden of proof as to the “time when” requirement of § 31-275(16).
There are few cases that directly discuss the importance of the time requirement in the definition of accidental injury. In Stier v. Derby, our Supreme Court stated that the statute defining personal injury “requires proof of an accidental injury which can be definitely located both as to time and place. It does not require that the time be fixed by a stopwatch or the place by a mathematical point.” Stier v. Derby, 119 Conn. 44, 49-50 (1934). Thus, injuries such as frostbite and sunstroke were held compensable when incurred in the course of employment, even though the exact moment of injury could not be determined. Id., 50.
In Miner v. Town of Watertown, 10 Conn. Workers’ Comp. Rev. Op. 100, 971 CRB-5-90-1 (April 28, 1992), this Board held that confusion over a claimant’s date of injury did not prevent the commissioner from making a finding as to that date, even though the claimant himself asserted that his shoulder injury had occurred one day earlier than the date found by the commissioner. This suggests that the definition of “accidental injury” in § 31-275(16) can be satisfied even if the wrong date of injury is pleaded. Indeed, if one looks at § 31-275(16), the definition of “accidental injury” is juxtaposed with the definitions of repetitive trauma injuries and occupational diseases. This leads us to conclude that the phrase “which may be definitely located as to the time when and the place where the accident occurred” is intended to distinguish “accidental” injuries from other compensable personal injuries, rather than as a strict jurisdictional barrier.
Our conclusion is borne out by other cases in which the date of injury is at issue. See, e.g., Quinn v. Standard Knapp, 1470 CRB-8-92-7 (decided July 8, 1994); Boutin v. Industrial Components, 4 Conn. Workers’ Comp. Rev. Op. 19, 237 CRD-6-83 (March 3, 1987). Those cases focus on the requirements of § 31-294(a) [now § 31-294c(a)] C.G.S., which provided at the (approximate) time of the claimant’s injury that written notice of a compensation claim had to be given within one year from the date of the accident, and that “[s]uch notice . . . shall state, in simple language, the date and place of the accident and the nature of the injury resulting therefrom . . . .” It is this statute rather than § 31-275(16) that is implicated most profoundly by a claimant’s failure to state the correct date of injury, as the Workers’ Compensation Commission does not have jurisdiction over a claim unless the requirements of § 31-294 are satisfied.
Here, the claimant filed notice of claim on June 13, 1991, alleging an injury to her back in November 1990. We have held that the precise date of injury is an essential requirement of written notice under § 31-294. Pickard v. Manchester Gardens Condominium Ass’n., 10 Conn. Workers’ Comp. Rev. Op. 216, 1331 CRD-1-91-9 (Dec. 17, 1992). As such, the claimant’s notice was defective. Section 31-294(b) [now § 31-294c(c)] C.G.S. provides that “in no case shall any defect or inaccuracy of such notice of claim be a bar to the maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning such personal injury and was prejudiced by the defect or inaccuracy of such notice. Upon satisfactory showing of such ignorance and prejudice, the employer shall receive allowance to the extent of such prejudice.”
The commissioner was unable to determine the exact date of injury in this case, although the possibilities were narrow enough to ensure that the one-year notice requirement of § 31-294 was comfortably satisfied. We do not think that the circumstances of this case required the commissioner to dismiss the claim because he could not determine a precise date of injury. We do hold, however, that the commissioner should have given the employer the opportunity to demonstrate prejudice as a result of the defect in notice caused by the absence of a date of injury. See Bell v. Dow Corning STI, Inc., 1777 CRB-4-93-7 (decided Jan. 30, 1995) (absence of correct date of injury often leaves employer with insufficient information to investigate claim); Pickard, supra, 218. Further proceedings will thus be necessary on that issue.
The respondents also argue that the commissioner found certain facts without evidence. As they did not bother to brief this argument separately, however, we are uncertain as to which of the facts they are challenging. They do make some allegations of inconsistent testimony, but such an argument would be to no avail because it is the commissioner’s prerogative to determine which evidence and testimony he finds credible. Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979); Phelan v. Benson, 1583 CRB-3-92-12 (decided Dec. 20, 1994). Thus, we will consider the matter no further.
The trial commissioner’s decision is affirmed. The matter is remanded to the Fifth District for further proceedings to determine prejudice under § 31-294c(c) C.G.S.
Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.