State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Dorsey v. UTC/Norden Systems

CASE NO. 2268 CRB-7-95-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 6, 1996

STANLEY DORSEY

CLAIMANT-APPELLEE

v.

UTC/ NORDEN SYSTEMS

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEE

and

CIGNA PROPERTY & CASUALTY

INSURER

RESPONDENT-APPELLANTS

APPEARANCES:

The claimant was represented by Lindalea Ludwick, Esq., and Michelle Ragozzino, Esq., Early, Ludwick & Sweeney, One Century Tower, 265 Church St., P.O. Box 1866, New Haven, CT 06508-1866.

The respondent employer and CIGNA Property & Casualty were represented by Richard Aiken, Esq., and Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

The respondent employer and Liberty Mutual Insurance Co. were represented by Scott Wilson Williams, Esq., Maher & Williams, 1300 Post Rd., P.O. Box 550, Fairfield, CT 06430.

This Petition for Review from the January 13, 1995 Finding and Award of the Commissioner acting for the Seventh District was heard December 1, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

AMADO J. VARGAS, COMMISSIONER. The respondent employer and CIGNA Property & Casualty (hereinafter referred to as “respondents”) have petitioned for review from the Finding and Award of the commissioner acting for the Seventh District. In that decision, the commissioner ruled that the claimant filed a timely notice of claim for permanent partial binaural hearing loss. The commissioner found that the claimant retired from the respondent employer on March 11, 1990, but did not become aware that he had suffered a hearing loss which may have been connected to his work until he went to a doctor on January 5, 1993. The commissioner thus found the claimant’s January 14, 1993 notice of claim to be timely. In support of their appeal, the respondents contend that the claimant’s lack of knowledge regarding his hearing loss does not extend the time period for filing a timely notice of claim for repetitive trauma. We agree, and thus reverse the trial commissioner’s decision.

The trial commissioner found the following relevant facts. The claimant worked for the respondent employer from 1971 until his retirement on March 11, 1990. The claimant worked as a powerhouse operator and also worked in the air conditioning facility, which exposed him to very noisy equipment on a daily basis. The claimant stated that his work environment normally involved very loud noises and that for the last two years of his employment he and other employees were offered ear protectors to be used while working. The claimant was not aware that he had suffered any hearing impairment when he retired on March 11, 1990. The claimant first visited Dr. Naci for his hearing on January 5, 1993 at the insistence of his wife who advised him that he could not hear very well. The commissioner concluded that “the first time the Claimant was aware that he was suffering from a hearing loss and that it could have been caused by his work, was on or about January 5, 1993.” (Finding No. C).

The issue on appeal is whether a claimant’s lack of knowledge regarding a repetitive trauma injury extends1 the one-year statute of limitations for filing a notice of claim beyond one year after the last date of exposure.2 Section 31-294c, which sets forth the statute of limitations for the filing of workers’ compensation claims, provides in pertinent part:

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, 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. Peters v. State of Connecticut, 10 Conn. Workers’ Comp. Rev. Op. 32, 34, 1103 CRD-3-90-8 (Jan. 13, 1992).

The claimant urges us to follow the trial commissioner’s interpretion of the one-year statute of limitations contained in § 31-294c so as to extend the notice period for repetitive trauma to one year following the first manifestation of a symptom of the repetitive trauma. The statute does not support such an interpretation. Specifically, 31-294c provides:

As used in this section, ‘manifestation of a symptom’ means manifestation to an employee claiming compensation, or to some other person standing in such relation to him that the knowledge of the person would be imputed to him, in a manner that is or should be recognized by him as symptomatic of the occupational disease for which compensation is claimed. (Emphasis added).

It should be emphasized that pursuant to § 31-294c a claimant must file a claim for an accidental injury within one year of the injury, regardless of whether the claimant had not realized the severity of the injury until after the one year statute of limitation had passed. Keegan v. Aetna Life & Casualty, 13 Conn. Workers’ Comp. Rev. Op. 340, Case No. 1793 CRB-1-93-8 (April 27, 1995), aff’d., 42 Conn. App. 803 (1996). Similarly, the one year statute of limitations should apply to claims for repetitive trauma commencing at the time of last exposure, regardless of when a manifestation of the condition occurs.

In 1987, the Compensation Review Board addressed the issue at hand in Boutin v. Industrial Components, 4 Conn. Workers’ Comp. Rev. Op. 19, 237 CRD-6-83 (March 3, 1987). The board recognized in that decision that the issue of whether the statute of limitations period was affected by a claimant’s lack of knowledge regarding a repetitive trauma injury was not clear from the language of the statute. The board explained that prior to 1947, the Workers’ Compensation Act only included two types of injuries, specifically accidents definitely located in time and place and occupational diseases. In 1947 the legislature added repetitive trauma as a separate category of injuries, but did not make any change to the statute of limitations language. Id. at 20-21. Thus, the board was left with the following quandary: although “(r)epetitive trauma is not ‘an accident’ or an ‘occupational disease,’ yet notice of claim must be made within one year of the ‘accident’ or three years from the ‘manifestation of the occupational disease symptom.’” Id. at 22.

In Boutin, the board applied the analysis set forth in Bremner v. Eidlitz & Sons, Inc., 118 Conn. 666 (1934), an occupational disease case, to claims for repetitive trauma. The board thus concluded that notice of a repetitive trauma injury is timely if it is filed within one year after the claimant “knew or should have known that he has a disabling condition arising from the employment.” Boutin, supra, at 23. The board’s reliance on Bremner is questionable, however, because the court in Bremner did not address whether the manifestation of a symptom was also applicable to personal injuries, or specifically to repetitive trauma injuries. In fact, the cases which were relied upon in Boutin predate the addition of “repetitive trauma” to the definition of “injury” pursuant to 1947 Public Act No. 191. Accordingly, the cases cited in Boutin do not provide persuasive authority for the conclusion that repetitive trauma claims may be brought within one year of the manifestation of a symptom. We now reverse the Boutin decision.

We conclude that a claimant suffering a personal injury due to repetitive trauma is required by § 31-294c to provide written notice of his claim within one year of the date of the injury, regardless of whether he contends that he was not aware that he had sustained an injury until after the one-year period has expired. This conclusion is supported by Crochiere v. Board of Education, 227 Conn. 333 (1993) and Borent v. State, 33 Conn. App. 495 (1994). 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), the Appellate Court 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, at 499 (citations omitted). In Borent, the court held that the claimant’s notice of claim for hearing loss was timely as it was filed within one year following his last date of employment, which was his last date of exposure to the incidents of repetitive trauma. Similarly, in Crochiere, the court stated that “it is settled law that the date of injury is the last date of exposure to work related incidents of repetitive trauma, or the last day worked, whichever is later.” Crochiere, supra, at 354.

In the instant case, the respondents argue that a repetitive trauma injury is by its very nature distinguishable from an occupational disease because an occupational disease has symptoms which may remain dormant for many years, whereas a repetitive trauma injury does not. We agree. Moreover, in the instant case, the commissioner did not find that the symptoms of the claimant’s hearing loss were dormant or undetectable by a reasonable person.

For the above reasons, the statute of limitations period for a repetitive trauma claim should be limited to one year following the last date of exposure. Thus, the trial commissioner was required to dismiss the claim for failure to file notice within one year following the date of last exposure pursuant to §31-294c(a).

The trial commissioner’s decision is reversed.

Commissioners Roberta Smith Tracy concurs.

JESSE M. FRANKL, CHAIRMAN, DISSENTING. I dissent. In the instant case, the claimant did not become aware that he had sustained hearing loss until January 5, 1993, and immediately filed a notice of claim on January 14, 1993. Thus, the trial commissioner properly determined that the notice of claim was timely. In Boutin, the board held that notice of a repetitive trauma injury is timely if it is filed within one year after the claimant “knew or should have known that he has a disabling condition arising from the employment.” Boutin, supra, at 23. I strongly disagree with the majority’s decision to reverse Boutin.

The holding in Boutin, supra, has been repeatedly followed by this board: “We have held that in a repetitive trauma injury, the injury process is not completed until the last day worked. The limitation period begins to run on that date or on the date when the first known manifestation of a disabling symptom occurs.” Dorsett v. General Dynamics Corp., 8 Conn. Workers’ Comp. Rev. Op. 77, 79, 805 CRD-2-88-12 (May 8, 1990) (citations omitted), aff’d, 23 Conn. App. 827 (1990), cert. denied, 218 Conn. 901 (1991); see also Smith v. Aetna Life & Casualty, 14 Conn. Workers’ Comp. Rev. Op. 336, 338, 2006 CRB-1-94-3 (Sept. 20, 1995); Santry v. Fermont Division, D.C.A., 13 Conn. Workers’ Comp. Rev. Op. 230, 232, 1768 CRB-4-93-6 (April 13, 1995); Edmounds v. Machlett Laboratories, 9 Conn. Workers’ Comp. Rev. Op. 241, 242, 1119 CRD-7-90-10 (Oct. 31, 1991); O’Leary v. New Britain, 3 Conn. Workers’ Comp. Rev. Op. 108, 236 CRD-6-83 (Dec. 2, 1986).

The respondents contend on appeal that § 31-294c requires a claimant to file a claim for a repetitive trauma injury within one year following the last date of exposure to the cause of the repetitive trauma, regardless of whether the claimant knew of should have known that he had a disabling condition arising from his employment. In support of this argument, the respondents cite Crochiere v. Board of Education, 227 Conn. 333 (1993) and Borent v. State, 33 Conn. App. 495 (1994). The respondents’ reliance on these cases is misplaced. The decisions in Borent, supra, and Crochiere, supra, did not address the issue of whether the one-year statute of limitations for repetitive trauma claims may be extended if there is no known manifestation of a symptom until after one year following the last exposure to the repetitive trauma.

The doctrine that the statute of limitations runs from the date of a known manifestation is “the workers’ compensation analogue to the ‘discovery rule’ for the running of the statute of limitations in tort actions.” Seymour v. Bleich, 12 Conn. Workers’ Comp. Rev. Op. 312, 314, 1484 CRB-6-92-8 (June 24, 1994) (citing 4 F. Harper, F. James & O. Gray, The Law of Torts (4th ed.), p. 487). “The discovery doctrine developed in tort actions to delay the running of the statute of limitations where the connection between a defendant’s conduct and the actionable injury does not become obvious until some time after the conduct complained of has occurred.” Id., see also Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 521 (1989)3.

The interpretation of § 31-294c to allow claims to be filed within one year following the first manifestation of a symptom is consistent with the legislative histories of relevant4 statutes. The legislative history regarding changes to the statute of limitations for workers’ compensation injuries reveals that the legislature was concerned with legitimate claims which had been barred due to the late filing of notice where the claimant’s symptoms did not appear until after the notice period had expired. Thus, the legislature in 1959 deleted a provision in the statute of limitations5 which required notice of an occupational disease claim to be filed no later than five years after the claimant left his employment. One senator made the following remarks:

Finally, the bill changes the statute of limitations to prevent people from being barred from obtaining benefits because they discovered their condition too late to be able to make claim. It provides that the present five year statutes (sic) be eliminated. That statute prevented workers from making claim for benefits after they had been out of the employ of the employer against whom they claimed more, than the five years. This prevented the people at the New Haven Clock Company from obtaining benefits for radiation poisoning. It has also prevented claims (for) beryllium poisoning and it might prevent claims for ... other diseases, the manifestations of which cause (sic) some years after exposure.
8 Sen. Proc., Pt. 6, 1959 Sess., p 2816 (remarks of Senator Buzaid).

Moreover, Representative Satter stated:

I would say that this law consistently provides that any manifestations of an injury which occurs sometime later is nevertheless compensable even if its is after the 1 yr. (one year) statute of limitations.
8 H.R. Proc., Pt. 12, 1959 Sess., p. 5082 (emphasis added).

It appears from the legislative history that the legislature was concerned with protecting legitimate claims where the manifestation of a known symptom did not occur until after the one year time limit had expired. This concern is compatible with the holding in Boutin that a claim for repetitive trauma may be timely if it is filed within one year after the claimant “knew or should have known that he has a disabling condition arising from the employment.” Boutin, supra, at 23.

The lack of legislative action to change Boutin and its progeny is extremely significant, as our Supreme Court has stated: “we presume that the legislature is aware of our interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation.” McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 119 (1987) (citations omitted).

In addition, the purpose of the Workers’ Compensation Act:

is to be liberally construed to provide coverage for employees who are injured on the job. Ash v. New Milford, 207 Conn. 665, 672, 541 A.2d 1233 (1988) (act is remedial and should be construed liberally to achieve its humanitarian purpose). As this court has stated on numerous occasions: “The [act] is to be construed with sufficient liberality to carry into effect the beneficent purpose contemplated in that legislation, and not to defeat that purpose by narrow and technical definition.”
Muldoon v. Homestead Insulation Co., 231 Conn. 469, 483 (1994)(citing Massolini v. Driscoll, 114 Conn. 546, 553, 159 A. 480 (1932)).

In addition, the Workers’ Compensation Act is the exclusive remedy for injuries sustained by an employee arising out of and in the course of his employment, and it has replaced rights of action which had been available under common law. Wesson v. Milford, 5 Conn. App. 369, 372 (1985). Thus, the claimant in the instant case may very well be left without a remedy under the majority’s narrow interpretation of § 31-294c by which the majority has barred his claim.

Furthermore, this Board may not disturb the conclusions of the commissioner “from the facts found ... unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). In the instant case, the record supports the trial commissioner’s determination that the first time that the claimant was aware that he was suffering from a hearing loss and that it could have been caused by his work was on or about January 5, 1993. In addition, as the respondents did not file a motion to correct the findings, the findings as found by the trial commissioner must stand. Colucci v. Mattatuck Manufacturing Co., 9 Conn. Workers’ Comp. Rev. Op. 234, 1000 CRD-5-90-4 (Oct. 30, 1991).

Accordingly, I would affirm the trial commissioner’s decision for all of the above reasons.

1 The issue on appeal is only whether lack of knowledge extends the statute of limitations period. It is settled that a claimant’s knowledge of a repetitive trauma injury does not serve to shorten the one-year period commencing from the date of last exposure because the injury process is not completed until the last day of exposure. See Seymour v. Bleich, 12 Conn. Workers’ Comp. Rev. Op. 312, 314, 1484 CRB-6-92-8 (June 24, 1994); Dorsett v. General Dynamics Corp., 8 Conn. Workers’ Comp. Rev. Op. 77, 79, 805 CRD-2-88-12 (May 8, 1990), aff’d, 23 Conn. App. 827 (1990), cert. denied, 218 Conn. 901 (1991); Campbell v. Manchester Memorial Hospital, 13 Conn. Workers’ Comp. Rev. Op. 157, 1754 CRB-1-93-6 (March 8, 1995). BACK TO TEXT

2 “The claimant’s last date of employment is not necessarily the last date of exposure to repetitive trauma. Knapp v. New London, 14 Conn. Workers’ Comp. Rev. Op. 325, 2002 CRB-2-94-3 (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).” Denicola v. State of Connecticut, 14 Conn. Workers’ Comp. Rev. Op. 356, 1983 CRB-3-94-2 (Sept. 22, 1995). BACK TO TEXT

3 “In Connecticut, a cause of action accrues when the plaintiff suffers actionable harm. Actionable harm occurs when the plaintiff discovers or should discover, through the exercise of reasonable care, that he or she has been injured and that the defendant’s conduct caused such injury.” Champagne at 521 (citations omitted). BACK TO TEXT

4 When the legislature expanded the definition of injury in 1947 to include repetitive trauma, there was no discussion regarding the statute of limitations which would be applied to this newly added injury of repetitive trauma. BACK TO TEXT

5 At that time, the statute of limitations was codified in § 1330e C.G.S. BACK TO TEXT

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