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Jones v. Nuclear Energy Services

CASE NO. 3022 CRB-7-95-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 20, 1996

KAREN JONES

CLAIMANT-APPELLEE

v.

NUCLEAR ENERGY SERVICES

EMPLOYER

and

NATIONAL UNION FIRE INSURANCE

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by David J. Scully, Esq., Kernan & Henry, One Century Tower, 265 Church St., P.O. Box 2156, Waterbury, CT 06722.

The respondents were represented by James T. Baldwin, Esq., formerly of Cotter, Cotter & Sohon, P.C., 500 Boston Post Rd., Milford, CT 06460.

This Petition for Review from the March 16, 1995 Finding and Order of the Commissioner acting for the Seventh District was heard January 26, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Robin L. Wilson.

OPINION

GEORGE WALDRON, COMMISSIONER. The respondents have petitioned for review from the March 16, 1995 Finding and Order of the commissioner acting for the Seventh District. In that decision, the commissioner ruled that the claimant filed a timely notice of claim for carpal tunnel syndrome in both of her hands. The commissioner found that the claimant last worked for the employer on July 18, 1992, but that the claimant did not become aware that she had sustained carpal tunnel syndrome which could be connected to her work until February of 1993 at the earliest. Based upon the claimant’s lack of knowledge, the commissioner found the claimant’s notice of claim filed on August 18, 1993 to be timely. In support of their appeal, the respondents contend that the claimant’s lack of knowledge should not extend the time period for filing a timely notice of claim beyond one year following the last date of exposure.

The trial commissioner found the following relevant facts. The claimant worked for the respondent employer from March of 1991 until July 18, 1992. The claimant used a lap-top computer at her desk, and in the fall of 1991 “her hands and arms began to ache and tingle and go numb.” Subsequently, during the later part of 1991 and into 1992, the claimant’s condition worsened. In January and February of 1993, the claimant treated with her own treating physician, Dr. Cohen, for her pregnancy. In February of 1993, she was informed by Dr. Cohen that she had carpal tunnel syndrome. At that time, she was “unaware that repetitive trauma, or her work did or could cause carpal tunnel.” (Finding No. 8). In the summer of 1993, the claimant treated with Dr. Finn, M.D., a neurosurgeon, for back and neck problems, who diagnosed carpal tunnel in July of 1993. In August of 1993, the claimant sought an opinion from Dr. Straznicky, who informed her that in his opinion her carpal tunnel was caused by the use of the computer at work. He confirmed this opinion in a report dated November 15, 1993.

The trial commissioner concluded that the claimant’s carpal tunnel condition was not diagnosed by a doctor until February of 1993. The trial commissioner further concluded that the carpal tunnel was not recognized as being related to the claimant’s work until July of 1993 by Dr. Finn. He thus found the claimant’s notice of claim filed on August 18, 1993 to be timely pursuant to § 31-294c.

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).

This board has recently held that a claim for repetitive trauma must be filed within one year following the last date of exposure. Dorsey v. UTC/Norden Systems, Case No. 2268 CRB-7-95-1 (decided Sept. 6, 1996). In that decision, the board held that a claimant’s lack of knowledge does not extend the one-year period for filing a claim, and thus reversed Boutin v. Industrial Components, 4 Conn. Workers’ Comp. Rev. Op. 19, 237 CRD-6-83 (March 3, 1987). Moreover, in a recent decision where the claimant sustained a heart attack which he “did not relate” to job stress until two years after the injury, the Appellate Court stated that even if the injury were to be considered a repetitive stress injury the one-year period for filing a claim commenced on the last date of exposure, which was the last day of the claimant’s employment. Discuillo v. Stone and Webster, 43 Conn. App. 224, 225-27 (1996). In the instant case, the claimant’s last exposure to repetitive trauma during the course of her employment occurred on July 18, 1992.1 Accordingly, in order to be timely, the notice of claim had to have been filed on or before July 18, 1993. Dorsey, supra. The claimant’s notice of claim filed on August 18, 1993 is therefore untimely pursuant to § 31-294c.

The trial commissioner’s decision is reversed.

Commissioner Robin L. Wilson concurs.

JESSE M. FRANKL, CHAIRMAN, DISSENTING. I disagree with the majority’s analysis regarding the timeliness of the claimant’s notice of claim. Specifically, I dissented in Dorsey, supra, because I disagreed with the board’s decision to overturn Boutin v. Industrial Components, 4 Conn. Workers’ Comp. Rev. Op. 19, 237 CRD-6-83 (March 3, 1987). This board had repeatedly held that in a repetitive trauma injury, the limitation period begins to run on the date of last exposure “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). This interpretation of § 31-294c is supported by the legislative history of relevant statutes, and is further supported by the humanitarian purpose of the Workers’ Compensation Act. See Dorsey, supra, (dissenting opinion). Accordingly, I would affirm the trial commissioner’s decision.

1 We note that the claimant last performed employment duties for the employer on July 18, 1992, when she left on short-term disability for an unrelated medical condition. (See Finding No. A as amended by granting of motion to correct; see also Transcript of 1/30/95 at p. 70). BACK TO TEXT

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