CASE NO. 770 CRD-7-88-9Workers’ Compensation Commission
FEBRUARY 21, 1990
The claimant was represented by Robert J. Guendelsberger, Esq., Guendelsberger Associates.
The respondent was represented by Richard T. Stabnick, Esq., and Jason M. Dodge, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the September 20, 1988 Finding and Dismissal of the Commissioner for the Seventh District was heard October 27, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Andrew P. Denuzze.
OPINION
JOHN ARCUDI, CHAIRMAN.
Central to claimant’s appeal from the September 20, 1988 Seventh District Finding and Dismissal is the confusion over the dates of occurrences. The basic claim is that claimant first injured his back when lifting a load of paper to a cutting apparatus on September 18, 1987. He reported this injury to the employee’s personnel director but continued to work for another four weeks until October 15, 1987 when he was absent from work due to a non-work related illness, influenza. The employee was at work again on October 16 when he suffered back pain; after reporting that fact to his superiors, he left to see his family physician, Dr. Matthew M. Farrell of Brookfield.
The employer submitted a typed First Report of Injury. The handwriting at the foot of the report indicated its date to be “10/15/87.” The document did relate that the employee reported a back injury on September 18, 1987. Then the employer report shows in answer to question 7, “date disability began 10/15/87.” However, the employer’s personnel director, Ralph W. Garofalo testified (May 25, 1988 TR 43) that claimant was working and left early to see the doctor on October 16. The personnel director also testified (May 25, 1988 TR, 48) that the employer’s First Report of Injury Form should have been dated October 16. The Garofalo testimony on that point was confirmed by the claimants’ foreman, Frederick P. Eriquezzo (August 22, 1988 TR, 12-13).
To compound the confusion counsel for claimant in his opening statement (March 23, 1988 TR, 2) also referred to October 15, 1987 as the date that claimant’s disability began. Throughout the three evidentiary hearings there continued to be references to October 15 as the date claimant left work to seek medical treatment despite the Garofalo and Eriquezzo testimony described above.
Understandably, then, the mistaken date became incorporated in the commissioners’ finding.
Finding # 6 states:
6. The claimant continued to work without any lost time until October 15, 1987 when, according to said Frederick T. Erequezzo, the claimant called in that he was sick with the flu, but when claimant claims he further aggravated his back injury and left work early for the purpose of seeking his personal physician, Dr. Matthew M. Farrell.
Finding # 7 states:
7. Claimant returned to respondent-employer’s place of business on October 15, 1987 with a note from Dr. Matthew M. Farrell advising claimant to stay out of work for two (2) weeks of bed rest due to back pain, which note the claimant delivered to Ralph W. Garofalo, who prepared the employer’s First Report of Injury (Claimant’s Exhibit dated October 15, 1987, in which the date of injury is set forth as September 18, 1987.
In his concluding Paragraph #9 the commissioner found on the basis of all the evidence before him that “the claimant had not met his burden of proving that he sustained a compensable injury on September 18, 1987 and/or October 15, 1987. . .” It was not necessary for the commissioner to explain why the claimant’s case failed to persuade, but given the findings he did make as cited above, it appears that the confusion in the dates was instrumental in the conclusion of non-persuasion.
Indeed it would be difficult for any trier of facts to conclude that the claimant was injured at work on October 15 when he was home sick with the flu on the day in question and had telephoned the employer to communicate that fact. It may very well be that other testimonial submissions also lacked credibility, but we cannot be certain just what evidentiary item or items were those which failed to convince the trier.
The claimant sought in his Motion to Correct to have the findings changed so that the proper October 16 date would appear in those paragraphs that made reference to October 15, but the commissioner denied that motion. Our examination of the transcripts indicate it was error to deny the motion. Had he granted the motion and still remained unpersuaded, we could not disturb his dismissal of the claim, because then it would be clear that other evidential elements or the lack of them had been the reason for denial of the claim.
However under the present state of the record it is necessary to grant the appeal and remand the matter to the Seventh District for further proceedings. Then the commissioner may correct his findings, take more evidence if necessary, and render a new decision on the basis of that corrected finding and any other evidence he may receive.
Commissioner Robin Waller and Andrew P. Denuzze concur.