Glenn v. Stop & Shop, Inc.

• Decision Date: 06 May 1975
• Citation: Glenn v. Stop & Shop, Inc., 362 A.2d 512, 168 Conn. 413 (Conn. 1975)
• Parties: William P. GLENN v. STOP AND SHOP, INC., et al.
• Court: Connecticut Supreme Court

Page 512

362 A.2d 512

168 Conn. 413

William P. GLENN v. STOP AND SHOP, INC., et al.

Supreme Court of Connecticut.

May 6, 1975.

George A. Downing, East Hartford, with whom, on the brief, were Howard B. Field III and Mark R. Perkell, East Hartford, for appellants (defendants).

Albert Zakarian, Hartford, for appellee (plaintiff).

Before HOUSE, C.J., and LOISELLE, MacDONALD, BOGDANSKI and LONGO, JJ.

BOGDANSKI, Associate Justice.

This appeal is from the finding and award of the workmen's compensation commissioner for the sixth district awarding the plaintiff disability benefits for an injury found to have arisen out of and in the course of his employment with the defendant employer. The Court of Common Pleas dismissed the appeal. From that judgment, the defendants have appealed to this court.

The material facts found by the commissioner are as follows: The plaintiff, Glenn, has been employed as a meat cutter by the defendant Stop and Shop, Inc., since March, 1970. On September 3, 1970, Glenn was lifting a piece of meat at his place of employment when he slipped and fell, injuring his elbow, knee and buttocks. He received medical attention for those injuries, and his employer accepted the accident as a workmen's compensation claim. On January 20, 1971, Glenn was involved in an automobile accident in which he received injuries to his back. After medical attention and rest, he returned to work. Glenn's work consisted of lifting pieces of meat weighing sixty to one hundred pounds on to a lift truck and then trucking it to his work station where he would cut the meat. When the meat was completely cut into pieces, he would start his work cycle again, continuing for a full, eight-hour workday. From September 3, 1970, to December 30, 1971, Glenn had periodic low-back and left-leg pain. He was able to continue with his normal work, however, through the week before Christmas, 1971. During that week, in addition to the loading, cutting and unloading of meat, he had to load and unload turkeys. When he returned to work after the Christmas holidays he had great difficulty walking, especially with his left leg, and on December 30, he was in such great pain that he had to leave work. Glenn immediately sought medical attention and was subsequently hospitalized. He was unable to return to work until March 6, 1972.

On the basis of the testimony of Doctor Mark Pohlman, a licensed physician who treated Glenn on and after December 30, 1971, the commissioner found that neither the accident at work on September 3, 1970, nor the automobile accident on January 20, 1971, were causally connected with the low-back and left-leg pain that caused Glenn to leave work on December 30, 1971. He did find, however, that 'the claimant's low back condition and resulting physical disability were caused by the repetitive heavy lifting required in his employment,' and that there was a 5 percent permanent partial disability to Glenn's back. The commissioner then concluded that Glenn's 'low back and left leg pain arose out of and in the course of his employment with . . . (Stop and Shop, Inc.) over a long period of time, with primary emphasis on the pre-Christmas period in December 1971 as being the culminating factor in . . . (his) need for medical and hospital attention.' Disability benefits were awarded for Glenn's temporary total disability from December 30, 1971, to March 6, 1972, and for the 5 percent permanent partial disability to his back. On subsequent motion by Stop and Shop, Inc., the commissioner refused to correct the finding and award.

On appeal, the Court of Common Pleas reviewed the record certified to it by the commissioner and concluded that there was evidence, including competent medical testimony to support the findings of the commissioner and that those findings reasonably supported his conclusions. On appeal to this court, Stop and Shop, Inc., has assigned error in the trial court's 'failure to overrule' the conclusions of the commissioner, in concluding that Glenn had suffered an injury arising out of and in the course of his employment and in overruling the claims of law raised in its 'reasons of appeal.' Those assignments of error indicate that Stop and Shop, Inc., misunderstood some of the principles governing judicial review of the finding and award of a workmen's compensation commissioner.

The court does not retry the case nor substitute its judgment for that of the commissioner as to the weight of the evidence on questions of fact. Practice Book § 435; General Statutes § 4-183(g). The court reviews the conclusions of the commissioner to determine whether they are inconsistent with the subordinate facts found and, when a motion to correct the finding has been denied by the commissioner, may be called upon to review the record to determine whether there was any evidence to support the findings. Practice Book §§ 435, 437; General Statutes § 4-183(g)(5); see Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 174, 355 A.2d 227, p. 230. The finding will not be corrected unless it contains facts found without evidence or omits material facts that are admitted or undisputed. Practice Book § 435; Wheat v. Red Star Express Lines, 156 Conn. 245, 248, 240 A.2d 859. On appeal to this court the decision of the court on the motion to correct is reviewable. The assignments of error, however, should specify the decision upon each paragraph of the motion desired to be reviewed. Practice Book § 443. Rather than follow that procedure, Stop and Shop, Inc., appears to be directly attacking the commissioner's ultimate conclusion on the ground of the insufficiency of the evidence. That is not a reviewable assignment of error. Mack v. Blake Drug Co., 152 Conn. 523, 525, 209 A.2d 173; Rainey v. Tunnel Coal Co., 93 Conn. 90, 93, 105 A. 333.

The conclusion that Glenn suffered an injury that arose out of and in the course of his employment is supported by the commissioner's finding that his low-back condition and left-leg pain were caused by the repetitive heavy lifting required in his employment. 'Injury' as used in the Workmen's Compensation Act includes 'an injury to an employee which is causally connected with his employment and is the direct result of repetitive trauma or repetitive acts incident to such employment.' General Statutes § 31-275.

As discussed above, the underlying finding of causation has not properly been assigned as error on this appeal. We note, however, that Stop and...