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DeNicola v. State of Connecticut/State Police, Department of Public Safety

CASE NO. 1983 CRB-3-94-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 22, 1995

ROBERT DENICOLA

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/STATE POLICE, DEPARTMENT OF PUBLIC SAFETY

EMPLOYER

RESPONDENT-APPELLANT

and

ALEXSIS

SELF-INSURED ADMINISTRATOR

APPEARANCES:

The claimant was represented by Robert Krzys, Esq., 2138 Silas Deane Highway, Rocky Hill, CT 06067.

The respondent employer was represented by Philip Schulz, Esq., Assistant Attorney General, P.O. Box 120, 55 Elm St., Hartford, CT 06141-0120.

This Petition for Review from the February 18, 1994 Finding and Award of the Commissioner acting for the Third District was heard January 27, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith D’Oyen and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the Finding and Award of the Commissioner acting for the Third District. The trial commissioner found that the claimant filed a timely notice of a compensable workers’ compensation claim. Specifically, the commissioner found that on November 5, 1992, the claimant, a state police trooper, filed a notice of claim for post-traumatic stress disorder (PTSD) which was initially caused by an August 19, 1988 incident where the claimant’s partner was shot in the head by a suspect. The commissioner concluded that the claimant’s notice was timely because the claimant had been subjected to repetitive trauma until his last day of employment on October 22, 1992. In addition, the commissioner found in the alternative that the notice of claim was timely because the claimant’s condition constituted an occupational disease. In support of its appeal, the respondent contends that the claimant’s injury constituted an accidental injury, which occurred on the day of the shooting incident, and thus his notice of claim was untimely.

At issue is whether the claimant filed a timely notice of claim. A claimant suffering a personal injury due to repetitive trauma is required by §31-294c(a) to provide written notice of his claim within one year of the date of the “accident.” As a repetitive trauma injury cannot be definitely located as to time and place, see Edmounds v. Machlett Laboratories, 9 Conn. Workers’ Comp. Rev. Op. 241, 242, 1119 CRD-7-90-10 (Oct. 31, 1991), this board has repeatedly held that “as a matter of law, the date of injury for a repetitive trauma is the last day of exposure, which is usually the last date of employment.” Borent v. State, 33 Conn. App. 495, 499 (1994) (citations omitted) (emphasis added). This construction has been endorsed by the higher courts of this state. Id., see also Crochiere v. Board of Education, 227 Conn. 333, 353-54 (1993). The claimant’s last date of employment is not necessarily the last date of exposure to repetitive trauma. Knapp v. New London, 2002 CRB-2-94-3 (decided Sept. 15, 1995). The determination of whether a claimant is exposed to repetitive trauma up until his last date of employment is a question of fact to be made by the trial commissioner. Campbell v. Manchester Memorial Hospital, 13 Conn. Workers’ Comp. Rev. Op. 157, 1754 CRB-1-93-6 (March 8, 1995).

In the instant case, the commissioner ruled that the claimant was not time-barred from filing a repetitive trauma claim for PTSD because “he continued to work his regular duties as a State Police Trooper and was exposed to stress.” However, he did not make any findings of fact regarding the nature or effect of the alleged repetitive trauma which occurred during the claimant’s employment subsequent to the shooting incident of August 19, 1988. Moreover, the medical reports in the record do not address the issue of causation between the claimant’s PTSD and the repetitive trauma which allegedly occurred subsequent to August 19, 1988. We are thus unable to determine whether repetitive trauma following the shooting incident contributed to the claimant’s medical condition, or whether the claimant’s condition was due solely to the isolated shooting incident. As there are insufficient findings of fact on this issue, we must remand this matter to the trial commissioner for a further hearing and decision. See Charette v. Jensen Mobile Home, 10 Conn. Workers’ Comp. Rev. Op. 1, 936 CRD-6-89-11 (March 19, 1991).

This matter is remanded to the trial commissioner for a further hearing and decision as indicated above.

Commissioner Amado J. Vargas concurs.

COMMISSIONER ROBERTA SMITH D’OYEN. I dissent. I agree with the respondent’s contention that the claimant failed to file a timely notice of claim.

Section 31-294c(a) specifically states: “No 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....” 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). Personal injuries are defined by § 31-275(16) C.G.S. as accidental injuries “which may be definitely located as to the time when and the place where the accident occurred,” along with repetitive trauma injuries and occupational diseases. 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 claimant’s post-traumatic stress disorder injury was causally related only to the August 19, 1988 shooting incident, which was the only work-related event at issue in this case. Therefore, I conclude that the claimant’s injury constituted an “accidental injury which may be definitely located as to the time when and the place where the accident occurred” pursuant to § 31-275(16). As such, the claimant was required to file his claim within one year following August 19, 1988.

Moreover, the record does not support the conclusion that the claimant’s injury constituted an occupational disease, and thus the three-year statute of limitation is not applicable. Specifically, the claimant failed to present any evidence that his condition constituted a “disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such” as required by § 31-275(15) C.G.S. See Crochiere v. Board of Education, 227 Conn. 333, 348 (1993).

Accordingly, I conclude that the claimant failed to file a timely claim as required by statute, and thus the commissioner was required to dismiss the claim.

Workers’ Compensation Commission

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