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Keegan v. AETNA Life & Casualty

CASE NO. 1793 CRB-1-93-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 27, 1995

GERTRUDE O. KEEGAN

CLAIMANT-APPELLANT

v.

AETNA LIFE & CASUALTY

EMPLOYER

and

AETNA CASUALTY AND SURETY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Robert F. Carter, Esq., Carter & Civitello, Woodbridge Office Park, One Bradley Road, Suite 301, Woodbridge, CT 06525.

The respondents were represented by Richard S. Bartlett, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066.

This Petition for Review from the August 5, 1993 Finding and Dismissal of the Commissioner acting for the First District was heard August 26, 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.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the August 5, 1993 Finding and Dismissal of the Commissioner for the First District. She argues on appeal that the commissioner improperly dismissed her claim for failure to file it within one year of the date of injury. We affirm the trial commissioner’s decision.

The parties stipulated that on May 8, 1988 the claimant attended a workers’ compensation seminar in Syracuse, New York in the course of her employment with the respondent Aetna. The claimant sustained a blow to her left hip when a patron at the Syracuse airport accidentally struck her with a heavy piece of luggage. The blow caused the claimant immediate pain in her hip, which had turned black and blue by the time she got to her hotel. Upon returning to Aetna, the claimant mentioned the injury to fellow employees. She did not file a workers’ compensation claim immediately following the accident because she did not believe the injury was serious. Although the pain in her hip lasted only one week, the area has been numb ever since her injury.

The claimant experienced back pain throughout the next two years, which she attributed to a preexisting back condition. Dr. Shafer, her treating physician, agreed in March 1990 that her pain was attributable to her back condition. When her pain continued, Dr. Shafer referred the claimant to another physician, Dr. Schutzer. On September 6, 1990, Dr. Schutzer diagnosed the claimant with synovial chondromatosis of the left hip. Dr. Shafer, with whom the claimant continued to treat, opined that the claimant’s condition was asymptomatic prior to the May 8, 1988 injury, and that the injury exacerbated the formerly quiescent disease. The claimant first became aware of the connection between her hip injury and the disease in March 1991, and filed written notice of her workers’ compensation claim with Aetna on March 29, 1991.

The commissioner concluded from these facts that the claimant’s injury of May 8, 1988 was neither an occupational disease nor a repetitive trauma injury. He dismissed the claim for failure to give notice within one year of the injury as required by § 31-294. The claimant has appealed from that decision.

The claimant argues that the commissioner should have applied the three-year statute of non-claim for occupational diseases in this case rather than the one-year statute of non-claim for accidental injuries. She claims the occupational disease statute of non-claim applies to all diseases which are caused or exacerbated by work injuries, regardless of the duration of the causal event. This would provide protection against the frequent difficulty of detecting subtle pathophysiological conditions for a claimant whose disease is exacerbated by a work trauma. It would also protect this claimant, who filed a workers’ compensation claim as soon as she was aware of the connection between her work-related hip injury and her recently diagnosed disease.

The respondents counter by arguing that the claimant suffered an accidental injury on May 8, 1988, of which injury she was immediately aware, and that she chose not to file a workers’ compensation claim because she did not believe the injury was serious. They contend the mere fact that the consequences of the injury turned out to be more serious than originally anticipated is of no legal significance with respect to the applicable statute of limitations. The respondents’ analysis is correct.

The claimant in this case suffered a work-related hip injury that exacerbated a dormant preexisting condition. The commissioner correctly concluded from the stipulated facts that the claimant’s synovial chondromatosis was not an occupational disease within the meaning of § 31-275(15), as the disease itself had no connection with the claimant’s employment. See Crochiere v. Board of Education, 227 Conn. 333, 352-53 (1993); Hansen v. Gordon, 221 Conn. 29, 34-36 (1992). The claimant’s hip injury was the only work-related event at issue in this case, and § 31-275(16) clearly contemplates that such a personal injury is an “accidental injury which may be definitely located as to the time when and the place where the accident occurred.” Even though a preexisting disease that is aggravated by an accidental injury may be compensable; see § 31-275(1); Cashman v. McTernan School, Inc., 130 Conn. 401 (1943); the nature of the accidental injury itself does not change. See Connolly v. Penn Seaboard Steel Corporation, 100 Conn. 423 (1924).

Section 294c(a) C.G.S. provides in part that “[n]o proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury.” This statute is jurisdictional in nature, and prevents a workers’ compensation commissioner from considering any claim that is not timely filed. Gesmundo v. Bush, 133 Conn. 607, 611 (1947); Walsh v. Waldron & Sons, 112 Conn. 579, 584 (1931); Connolly, supra, 426. Section 294c(a) explicitly requires a claimant to provide written notice of a claim for compensation within one year from the date of the accident which caused the personal injury. The language is not ambiguous, and must be applied in its plain and ordinary meaning. All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 194-95 (1989).

Here, the claimant did not provide written notice of injury to her employer until almost three years after the date of her accidental injury. Thus, notice was not timely provided under § 31-294c(a), and the commissioner was required to dismiss the claim. “The making of the claim and the time thereof are matters going to the maintenance of the right of action. . . . Where a statute gives a right of action which does not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right . . . [and] must be strictly complied with.” Walsh, supra, 584, quoting Simmons v. Holcomb, 98 Conn. 770, 774, 775 (1923). It is not the place of this Board to ignore or manipulate the notice requirements of § 31-294c in order to accommodate a claimant’s particular situation. The fact is, under the Workers’ Compensation Act, a claimant is required to file a written claim within one year of any accidental injury arising out of and in the course of his or her employment if the claimant expects to preserve his or her right to be compensated for the results of that injury, whether they are foreseen by the claimant or not.1

The trial commissioner’s decision is affirmed.

Commissioner Nancy A. Brouillet concurs.

COMMISSIONER ANGELO L. dos SANTOS, Dissenting. The claimant was not aware that she suffered from a hip disease until September, 1990, and was not aware that her May 8, 1988 hip injury had exacerbated this disease until March 1991. Prior to that date, she had assumed her hip injury was not serious and, therefore, she had not filed a workers’ compensation claim. Recognizing the importance of § 31-294c, this commissioner is also cognizant of the remedial purpose and humanitarian spirit behind the Workers’ Compensation Act. See, e.g., Muldoon v. Homestead Insulation Co., 231 Conn. 469, 481 (1994).

In this claim, we are dealing with a conscientious employee who did not want to increase the costs of insuring workers’ compensation risks to her employer by filing a workers’ compensation claim for what she assumed to be a bump on the hip. The purpose behind the act was not to require an employee to file a claim for every minor injury he or she suffers, regardless of its apparent insignificance. By applying § 31-294c in this manner, the majority creates a harsh result that unfairly penalizes claimants who choose not to make an issue out of every paper cut or stubbed toe that they suffer. Additionally, by requiring a claimant to file a claim for every minor injury, the cost of maintaining insurance for employers’ workers’ compensation risks will increase substantially.

Instead, this commissioner would apply the rationale used in Mulligan v. F. S. Electric, 231 Conn. 529 (1994). There, our Supreme Court held that the date of a claimant’s incapacity was the date of practical importance where the claimant’s compensable accidental injury did not result in immediate disability. Id., 543-45; see also Rousu v. Collins Co., 114 Conn. 24 (1931). The reasoning used in Mulligan should also apply to the § 31-294c time period for filing a notice of claim. Such a holding would avoid the unfortunate result reached by the majority, and is supported by the legislative history of P.A. 80-124, the purpose of which was to treat workers affected by occupational diseases in the same manner as those suffering from traumatic injuries. Mulligan, supra, 544, citing 23 H.R. Proc., Pt. 12, 1980 Sess., pp. 3457-58 (remarks of Rep. Walter J. Henderson). Given that § 31-294c gives a claimant three years from the first manifestation of a symptom of occupational disease in which to file a claim, this Board should at least consider the date of incapacity in applying the one-year notice period for an accidental injury that initially seems innocuous. For these reasons, I dissent.

1 We note that the claimant preserved equal protection and due process claims under the Fourteenth Amendment of the United States Constitution. This Board is not empowered to hear such claims, so we did not consider them here. See Trantolo v. Trantolo & Trantolo, P.C., 8 Conn. Workers’ Comp. Rev. Op. 69, 70, 823 CRD-6-89-2 (April 17, 1990). BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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