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Bonin v. Thames Valley Steel

CASE NO. 1492 CRB-2-92-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 14, 1997

HARRY P. BONIN

CLAIMANT-APPELLEE

v.

THAMES VALLEY STEEL

EMPLOYER

and

LIBERTY MUTUAL INS. CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Nathan J. Shafner, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge St., P. O. Drawer 929, Groton, CT 06340.

The respondents were represented by David C. Davis, Esq., McGann, Bartlett & Brown, 281 Hartford Tpke., Vernon, CT 06066.

This Petition for Review from the January 12, 1996 Ruling on Motion to Correct of the Commissioner acting for the Second District was heard August 30, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the January 12, 1996 Ruling on Motion to Correct of the Commissioner acting for the Second District. They argue on appeal that the commissioner erred by granting the claimant’s Motion to Preclude. We affirm the trial commissioner’s decision.

The claimant was employed by the respondent Thames Valley Steel on April 20, 1990. He alleges that on and prior to that date, he suffered emotional injuries, learning of their relationship to his employment on April 25, 1990. He filed a Form 30C notifying the respondents of his injury on May 3, 1990, in which he listed the date of injury as April 25, 1990. The respondents failed to file a Form 43 disclaimer within 28 days of their receipt of that notice, as required by § 31-297(b) C.G.S. (now § 31-294c(b)). The claimant filed a motion to preclude the respondents from contesting liability. The trial commissioner in his August 7, 1992 decision originally construed the claimant’s claim as one for occupational disease, but ruled that his alleged injury did not actually qualify as an occupational disease. Because the Notice of Claim specified an injury date after his employment had ceased, he held that the notice was insufficient to support preclusion.

The claimant petitioned for review from that decision, but was allowed to stay his appeal pending a decision on the merits. While the case was pending, this board issued its decision in Quinn v. Knapp, 12 Conn. Workers’ Comp. Rev. Op. 334, 1470 CRB-8-92-7 (July 8, 1994). The claimant then filed a Motion to Correct with the trial commissioner in light of that decision, and the commissioner granted that motion on January 12, 1996. He corrected his order to reflect that the claimant was alleging either an occupational disease or a repetitive trauma injury, and that his Form 30C was not defective because it substantially complied with § 31-297(b). Because the respondents had not filed a disclaimer of liability, he granted the claimant’s Motion to Preclude. The respondents then appealed that decision to this board, while the claimant withdrew his petition for review.

The respondents raise two issues on appeal: that the claimant’s Form 30C was insufficient to support preclusion as a matter of law, and that the claimant’s notice was not served on the employer in accordance with § 31-321 C.G.S. The latter claim is simply premised on the fact that, in his testimony, the claimant could not identify the person who signed for the certified letter containing his Form 30C. However, the claimant need not prove that the receiver of the notice had the authority to do so. All he had to do to satisfy § 31-321 was to send notice by certified mail to his employer’s place of business, which he did. It is not the claimant’s fault if his employer did not have a responsible agent or employee in the office at the time of delivery. Black v. London & Egazarian Associates, Inc., 30 Conn. App. 295, 301 (1993).

The respondents’ primary claim of error concerns the inaccurate date of injury in the Form 30C. In Quinn, supra, the claimant allegedly suffered from a work-related stress condition, and had ceased working on February 6, 1992. His notice of claim, although timely filed, listed a date of injury of February 7, 1992. The respondents then filed an untimely disclaimer, prompting the claimant’s Motion to Preclude. This board first noted that the repetitive trauma injury suffered by the claimant legally occurred on the last date of exposure to the stressful incidents, which is usually the last date of employment. Id., 335, citing Borent v. State, 33 Conn. App. 495, 499-500 (1994).

We then stated that, although a date of injury must be listed in a notice of claim in order to aid its investigation, a trifling inaccuracy in that notice would not prevent a trial commissioner from granting preclusion in a repetitive trauma case. Compare Bell v. Dow Corning STI, Inc., 13 Conn. Workers’ Comp. Rev. Op. 109, 112, 1777 CRB-4-93-7 (Jan. 30, 1995) (in accidental injury cases, an inaccurate injury date normally gives insufficient information for the employer to properly investigate the claim). “Practical reasons exist for distinguishing between accidental injury cases and repetitive trauma cases regarding the precision with which the claimant lists the date of injury in the notice of claim. . . . In [repetitive trauma] cases, the injury process, by definition, has occurred over time. Knowledge of the precise date of injury . . . will not facilitate any subsequent investigation of the claim, as the investigation must necessarily focus on the weeks, months, or years preceding the ‘date of injury.’” Quinn, supra, 336-37. We thus affirmed the commissioner’s ruling granting the Motion to Preclude.

Subsequent to that decision, we have issued two rulings which on the surface might appear to vary from that rule. Belletto v. Wilson Motors, Inc./Ben Wilson Nissan, 2257 CRB-4-95-1 (decided April 29, 1996); Fleming v. New Haven Register, 14 Conn. Workers’ Comp. Rev. Op. 263, 1945 CRB-3-94-1 (Sept. 6, 1995). However, a closer look shows that they are consistent with Quinn, supra. In Belletto, the claimant alleged a repetitive stress injury that led to hypertension and eventual complications, but listed the date of injury in his notice of claim as the date open heart surgery was performed, which was several weeks after he had last gone to work. Noting that the description of the injury in the Form 30C focused on the surgery and resulting leg swelling rather than the trauma that led to the claimant’s hypertension, we concluded that it would have been difficult for the employer to deduce from the injury described in the notice that it was allegedly related to workplace stress. Thus, we held that said notice was insufficient to support the claimant’s Motion to Preclude.

We also found a Motion to Preclude inappropriate in Fleming, supra. There, the claimant alleged anxiety, severe depression and emotional distress necessitating psychiatric treatment, with an October 1986 date of injury. He had suffered a seizure in January 1987, arguably because of these symptoms. The last date of his employment with the respondent was December 9, 1986. Noting that the date of injury for repetitive trauma is the last date of exposure or employment, and that the claimant did not allege a separate date of exposure in that case, we held that the failure to include the correct date of injury rendered the Form 30C insufficient to support preclusion. Id., 265.

In both Fleming and Belletto, the date of injury in the notice of claim was significantly different from the last date of the repetitive trauma, and the circumstances of the claimants’ injuries were complicated enough that their employers could have failed to appreciate the connection between the alleged injuries listed in the Forms 30C and prior stress at the workplace. In Quinn, supra, that was not the case; there was only a one-day discrepancy in the notice of claim, and extenuating circumstances did not blur the obvious alleged connection between repetitive trauma injury and employment. The instant matter is far more similar to Quinn than it is to Belletto or Fleming. The five-day difference between the claimant’s last date of employment and the date of injury on his notice of claim was not likely to mislead the employer as to the nature of his alleged injury, especially under the circumstances of this case. We therefore hold that the trial commissioner did not err in granting the claimant’s Motion to Correct and his Motion to Preclude the respondents from contesting the compensability of his injury.

The trial commissioner’s decision is affirmed.

Commissioner George A. Waldron concurs.

ROBIN L. WILSON, COMMISSIONER, CONCURRING. I agree with the majority’s decision, but write separately to add a point that I believe is important. The legal fiction that our Supreme and Appellate Courts have enunciated in Crochiere v. Board of Education, 227 Conn. 333 (1993), and Borent v. State, 33 Conn. App. 495 (1994), with regard to the triggering of the statute of limitations in a repetitive trauma claim was designed to extend the triggering date because of the nature of a repetitive trauma injury. In such cases, the injury process has by definition occurred over time.

This panel is mindful of cases where a repetitive trauma claim is made to circumvent the § 31-294c notice requirement because a claimant has failed to file a Form 30C for a specific accidental injury and attempts to save his claim by disguising his accidental injury as repetitive trauma in order to extend the available time for filing his claim. As the facts in the case at bar clearly present a true repetitive trauma claim, it appears that this board’s reasoning and holding in Quinn, supra, is applicable here, and that the claimant’s five-day error is “de minimis.”

Workers’ Compensation Commission

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