Murchison v. Skinner Precision Industries, Inc.

Citation291 A.2d 743,162 Conn. 142
CourtSupreme Court of Connecticut
Decision Date04 January 1972
PartiesBertha MURCHISON v. SKINNER PRECISION INDUSTRIES, INC., et al.

Paul J. McQuillan, New Britain, with whom, on the brief, was Frederick W. O'Dell, New Britain, for appellant (plaintiff).

Edward S. Pomeranz, Hartford, with whom, on the brief, was Douglas L. Drayton, Hartford, for appellees (defendants).

Before HOUSE, C.J., and COTTER, THIM, SHAPIRO and LOISELLE, JJ.

SHAPIRO, Associate Justice.

The plaintiff, the appellant herein, received an award from the workmen's compensation commissioner from which the defendants, the appellees herein, appealed to the Superior Court. The appeal was sustained and from a judgment rendered thereon the plaintiff has appealed to this court. She has assigned error, claiming that the court erred in failing to review the transcript of all the testimony heard by the commissioner before reaching a conclusion that there was no evidence of repetitive trauma as found by the commissioner; in erroneously applying the law by finding that direct medical testimony was required to show a causal connection between her employment and the injury; and in failing to remand the case to the commissioner for further proceedings.

The material facts found by the commissioner are as follows: The plaintiff Bertha Murchison, for five to six years prior to and into part of 1967, had been employed primarily as a machine operator by the defendant Skinner Precision Industries, Inc. Following a change in her work methods her work procedure consisted of taking a small metal piece from racks stacked to her left, performing an operation on it, then removing the piece and placing it in a rack to her right. She did this while seated and with her legs straddling the base of the machine. The complete operational eycle began with the plaintiff twisting her body to the left to pick up the piece, turning back to the machine in front of her, turning to the right to place the piece in a rack and then making a full twist to her left to begin the sequence over again. When a rack containing the peces needed replacing, she did this from her seated position by reaching out, lifting the rack and placing it in another area. Each rack, when loaded with the work material, weighed twenty to twenty-five pounds.

Prior to the change in her work methods, the plaintiff worked while standing or sitting. After the change in her work methods, she performed her work only while in a sitting position. At various times during the eight-hour work day she would leave her machine because of discomfort in sitting in one position for long periods of time. She complained to the foreman that the work position was uncomfortable and that her back bothered her. He provided her with another type of chair but she preferred the one she had been using.

During the latter part of August, 1967, she notice a numbness and pain in her left leg which had developed gradually after her work methods were revised by her employer. The numbness and pain increased until, finally, she sought medical assistance from her family physician, who referred her to an orthopedic surgeon. The latter Maxwell E. Hagedorn, diagnosed her condition as 'herniated lumbar discs, L4, L5 and L5, S1, right.' He first prescribed conservative treatment. On December 7, 1967, the plaintiff orally notified her employer's nurse that she had pain in her back, that she had seen a doctor and that she might have a disc condition. She informed her foreman that she was going to the hospital for her back problem. Thereafter, Hagedorn performed surgery to alleviate the plaintiff's condition.

On these facts, the commissioner concluded that the 'repetitive twisting from one side to the other and back again was the cause of the claimant's personal injury, which required corrective surgery,' citing Garofola v. Yale & Towne Mfg. Co., 131 Conn. 572, 574, 41 A.2d 451; that since 'the repetitive trauma . . . progressively increased the injury over a period of several months, the effective date of the injury' was November 27, 1967, when the 'claimant' left her employment; and that the 'claimant received the injury to her back on or before November 29, 1967; it arose out of and in the course of her employment' and that she was to receive compensation benefits. These conclusions must stand unless they could not reasonably or logically be reached on the subordinate facts. They 'must be tested by the subordinate facts and must stand unless . . . (they) resulted from an incorrect application of law of them or because of an inference illogically or unreasonably drawn from them. D'Angelo v. Connecticut Light & Power Co., 146 Conn. 505, 508, 152 A.2d 636; DiLauro v. Bassetti, 133 Conn. 642, 644, 53 A.2d 512.' Metall v. Aluminum Co. of America, 154 Conn. 48, 52, 221 A.2d 260, 262.

On July 9, 1969, the defendants appealed from the commissioner's award. On November 4, 1969, the defendants filed a motion seeking to correct the award which was denied by the commissioner on January 27, 1970. The defendants filed their reasons of appeal on February 4, 1970, which, in addition to claiming error in the refusal by the commissioner to correct the award, included claims that he erred because the award was not supported by the subordinate facts or warranted by the evidence; that there was no evidence that the plaintiff had sustained an accidence that the definitely located as to time and place of occurrence, nor was there evidence that the plaintiff had sustained an injury causally connected with her employment and as the direct result of repetitive trauma or acts incident to such employment; that he erred in not dismissing the claim because the only medical evidence was to the effect that the plaintiff's injury did not arise out of and in the course of her employment; and that the claim should have been dismissed, since, by the law and the evidence, that was the only reasonable, legal and logical conclusion that was warranted. As stated earlier, the court sustained the defendants' appeal. The plaintiff has assigned error on three grounds which we shall discuss.

The first assignment of error involves the claim that the court erred in failing to review the transcript of all the evidence heard at the commissioner's hearing held on May 21, 1969, before concluding that there was no evidence of repetitive trauma as found by the commissioner. At the outset, a recital of the sequence of events if necessary. After the commissioner made his finding and award for the plaintiff, the defendants appealed to the Superior Court and the defendants filed with the commissioner their motion, toegether with portions of the evidence certified by him, seeking correction of his finding and award. The commissioner denied the motion. On August 26, 1970, the court sustained the defendants' appeal and, accordingly, judgment was rendered on that date. On September 15, 1970, the plaintiff appealed to this court. On November 18, 1970, she filed a motion with the Superior Court to rectify the record on appeal 'by adding thereto a copy of the complete transcript of the formal hearing held on this matter before the Workmen's Compensation Commissioner . . . on May 21, 1969 . . .. Said transcript is necessary to present correctly the questions of law decided by the court as to which error is assigned.' The motion was granted on November 27, 1970. The record fails to show that any proceeding took place other than what we have just recited.

In an appeal to the Superior Court from a finding and an award made by a workmen's compensation commissioner, the relevant portion of Practice Book § 438 requires that where an appellant seeks to correct the commissioner's finding and award he must file 'such portions of the evidence as he deems relevant and material to the corrections asked for.' Practice Book § 439 requires that '(t)he appellee should, if he deems that additional evidence is relevant and material to the motion (to correct the finding), within one week after the appellant has filed his transcript of evidence, so notify the commissioner, and at the earliest time he can procure it file with the commissioner such additional evidence.' This court has held that '(t)he appellant must file with the commissioner, with his motion, or at the earliest time he can procure the transcript, such portions of the evidence as are relevant and material to the several corrections asked for. If the appellee claims that additional evidence is relevant and material to the corrections asked for, he should, within one week after appellant has filed his transcript, or at the earliest time he can procure the transcript, file with the commissioner such additional evidence.' Atwood v. Connecticut Light & Power Co., 95 Conn. 669, 673, 112 A. 269, 270; see Kenyon v. Swift Service Corporation, 121 Conn. 274, 278, 184 A. 643. Practice Book § 435 provides, in part, that '(s)uch appeals are heard by the court upon the certified copy of the record filed by the commissioner. The court does not retry the facts nor hear evidence. It considers no evidence other than that certified to it by the commissioner.' As was pointed out in Atwood v. Connecticut Light & Power Co., supra, 95 Conn. 674, 112 A. 271, '(t)he superior court determines the errors so assigned upon the evidence certified to it by the commissioner. It cannot consider other evidence in passing upon such errors.'

We point out that there is nothing in the record to show, nor is the claim made, that the plaintiff ever sought to have the court consider the entire testimony presented to the commissioner but rather presents it, the first time, for our attention on her motion to rectify the record on appeal. No attempt was made to open the judgment rendered so that the entire transcript would come to the trial court for examination by it. The plaintiff, in her brief, argues that 'in order to protect her substantial rights in an appellate review...

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