CASE NO. 2242 CRB-3-94-12
JUNE 25, 1996
The claimant was represented by Robert P. Kowalczyk, Esq., Law Offices of Ronald M. Scherban, P.C.
The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the December 1, 1994 Finding and Dismissal of the Commissioner acting for the Third District was heard October 27, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.
The claimant has petitioned for review from the December 1, 1994 Finding and Dismissal of the Commissioner acting for the Third District. She argues on appeal that the commissioner improperly concluded that she did not present sufficient evidence to establish her claim of a compensable back injury. We affirm the trial commissioner's decision.
The commissioner stated in his findings that the claimant allegedly suffered a compensable lower back injury while lifting a box at work on the afternoon of Friday, June 14, 1991. She did not tell her fellow employees that she had felt a twinge in her back and was in pain, nor did she report the incident to a supervisor before she finished her shift and went home. The following Monday morning, she called her employer and said she would be out sick, without mentioning a back injury sustained at work. Although she went to the Yale Hospital Emergency Room that day, no history of a work-related injury was noted on the intake sheets. The claimant said this was an error on the part of the hospital.
The claimant returned to work on Wednesday, June 19, when she claims to have reported the injury to her supervisor. She treated with Dr. Shine on June 21, 1991, whose records clearly indicate that the claimant said she had hurt her back at work one week earlier. The claimant's supervisor stated that the claimant did not report a back injury until June 20, 1991. The commissioner found that she had apparently filed prior workers' compensation claims, and that she admitted she was aware of the company policy requiring employees to report work injuries immediately. He concluded that she did not establish her injury by a preponderance of credible evidence, and dismissed her claim.
The commissioner also noted that the claimant alleged in a separate claim a right shoulder injury arising out of the same incident at issue here. Another trial commissioner dismissed that claim on the ground that her Form 30C was filed on July 21, 1992, over one year after the alleged injury. This board affirmed that decision in Prescott v. Echlin, Inc., 14 Conn. Workers' Comp. Rev. Op. 191, 2029 CRB-3-94-4 (July 13, 1995), ruling that the evidence supported the commissioner's factual conclusions regarding the date and nature of the injury. Because the timeliness of the claimant's right shoulder injury claim was at issue there, and not her alleged back injury, we hold that the prior Prescott decision has no preclusive effect on this case. The trial commissioner's finding in the earlier decision that the claimant "was lifting a box at work and injured her back and right shoulder" was not made in a situation where the back injury was a seriously contested issue, especially since the back claim was already being pursued separately in this case. Thus, we decline to give that holding any preclusive effect here.
The claimant argues on appeal that she offered a plausible explanation why she did not inform her employer of her injury immediately (i.e., because she did not think the injury was serious), that her allegations of lifting a box were not disputed, and that the emergency room records contained no history of her injury whatsoever, which she should not be held accountable for now. There is no question, however, that it is the claimant who bears the burden of proving the existence of a compensable injury in a workers' compensation case, and the causal relationship of that injury to her disability. Clinton v. Lego Systems, Inc., 2188 CRB-1-94-10 (decided Jan. 11, 1996);Calinescu v. CFD Associates, 13 Conn. Workers' Comp. Rev. Op. 298, 300, 1794 CRB-8-93-8 (April 21, 1995). As the respondents point out in their brief, there was certainly ground for doubt in this case. The proof of the details surrounding the claimant's injury largely consisted of her own testimony, which the trial commissioner was free to credit or ignore as he saw fit. Webb v. Pfizer, Inc., 14 Conn. Workers' Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995); Calinescu, supra. He appears to have made a reasonable factual determination from the evidence in this case, and we will not disturb it here.
The trial commissioner's decision is affirmed.
Commissioners Roberta Smith Tracy and Amado J. Vargas concur.