Knapp v. City of New London

The claimant was represented by Nathan Julian Shafner, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge St., Groton, CT 06340.

The respondent employer and Rollins Hudig Hall were represented by Christine Murphy, Esq., McGann, Bartlett & Brown, 281 Hartford Trnpk., Vernon, CT 06066.

The respondent employer and Travelers Insurance Co. were represented by Robert S. Cullen, Esq. and Christine Harrigan, Esq., 1952 Whitney Ave., Hamden, CT 06517.

This Petition for Review from the March 16, 1994 Finding and Award of the Commissioner acting for the Second 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 claimant has petitioned for review from the Finding and Dismissal of the commissioner acting for the Second District. The trial commissioner dismissed the claimant’s claim because of lack of timely notice. The claimant filed his claim for workers’ compensation on October 25, 1991, alleging that he sustained permanent partial binaural hearing loss. The commissioner found that the claimant’s hearing loss occurred prior to 1985, and that subsequent to 1985, because he was promoted to foreman, he was no longer exposed to repetitive trauma in the form of noise exposure. In support of his appeal, the claimant contends that he was exposed to loud noise throughout his employment.1 We affirm the commissioner.

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).

In the instant case, the commissioner found that the claimant worked as a laborer for the employer from 1967 until 1985, during which time he operated various machinery. The claimant went to Dr. Gaito for a hearing exam in the late 1970’s, at which time the doctor advised the claimant that he had sustained a partial hearing loss which was work-related. The claimant went to Dr. Gaito for another hearing exam in 1984. In 1984, the employer provided the claimant with hearing protection. In 1985, the claimant was promoted to the position of foreman, and no longer ran heavy machinery. The commissioner found that the claimant’s hearing loss did not appreciably change from 1984 to 1991. The commissioner concluded that the claimant “was not exposed to loud noise after 1985 due to his being promoted to a position as foreman.”

The claimant contends that there is no evidence to support the commissioner’s findings that the claimant was not exposed to loud noise after 1985. The claimant further contends that his testimony regarding continued exposure to noise after 1985 is uncontradicted. However, the commissioner is not required to credit the entirety of the claimant’s testimony. See Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). Although the claimant testified that he was exposed to loud noise after 1985 when he supervised workers while they were operating equipment, there is also evidence in the record that the claimant was not exposed to injurious levels of noise after 1985. Specifically, the claimant testified that as a foreman he no longer worked with machinery, and that when he approached workers who were using machinery they would turn off the equipment while he spoke to them. The claimant further testified that he obtained hearing protection in 1984 and used it as often as he could. (Transcript, 2/5/93, p. 46-47). Moreover, Dr. Gaito testified that the results of the claimant’s 1984 and 1991 audiograms were substantially the same. (Deposition of Dr. Gaito, p. 29).

As we stated above, the date of injury of a repetitive trauma is the last day of exposure, which is usually the last day of employment. Borent v. State, 33 Conn. App. 495, 499 (1994). In the instant case, there was ample evidence in the record to support the determination that the claimant’s injurious exposure to repetitive trauma ceased in 1985. As the conclusion was reached from the facts found and did not result from incorrect applications of law or from inferences illegally or unreasonably drawn from those facts, the commissioner’s conclusion must stand. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Thus, the commissioner properly dismissed the claim for failure to file notice within one year pursuant to §31-294c(a).

The trial commissioner’s dismissal of the claimant’s claim is affirmed.

Commissioners Roberta Smith D’Oyen and Amado J. Vargas concur.

1 We note that the claimant has attached three pages of hearing charts, apparently from a medical guide. However, pursuant to §31-301(b), we are limited to reviewing the record of the hearing before the commissioner. As there has been no motion to submit additional evidence, we will not consider the attachments on appeal. BACK TO TEXT