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Crabb v. N.B. Jon-Son, Inc.

CASE NO. 3296 CRB-1-96-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 19, 1997

RICHARD CRABB

CLAIMANT-APPELLANT

v.

N.B. JON-SON, INC.

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Richard L. Gross, Esq., Cantor, Floman, Russell & Gross, 378 Boston Post Road, P. O. Drawer 966, Orange, CT 06477.

The respondents were represented by Ellen Aspell, Esq., Law Offices of Nancy Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033.

This Petition for Review from the February 27, 1996 Finding and Dismissal of the Commissioner acting for the First District was heard December 13, 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 claimant has petitioned for review from the February 27, 1996 Finding and Dismissal of the Commissioner acting for the First District. He argues on appeal that the trier erred by dismissing his claim for occupational hearing loss. We affirm the trial commissioner’s decision.

At the time of the last hearing in January 1996, the claimant was 62 years old. He had worked in the construction trade for about 30 years, and had been exposed to loud, high-frequency noises over that time. He was last employed by the respondent employer in August 1992. On September 30, 1992, Dr. Coelho issued a letter for the claimant to use as a medical excuse for declining jury duty. Among the medical problems listed in that letter was “marked hearing loss which cannot be corrected.” The claimant filed a Form 30C for this injury on March 30, 1994.

The commissioner found that the claimant knew of his hearing loss by September 1992, and ruled that his claim was time-barred by the one-year statute of limitations in § 31-294c. The claimant has appealed that decision. He also raises as error the denial of his Motion to Correct, in which he sought to add findings that Dr. Coelho did not treat the claimant for hearing loss, that he first had his hearing tested by an audiologist on April 6, 1993, and was diagnosed with a 40.6% work-related hearing loss on June 16, 1993. According to the claimant, these findings are crucial to the issue of when the claimant first knew he had an occupationally-caused hearing impairment.

The claimant argues that the commissioner erred by assuming that the claimant was alleging a repetitive trauma injury rather than an occupational disease. Being that the Form 30C describes the alleged injury as “repetitive trauma; hearing loss to ironworker due to noise on multiple construction sites,” the claimant certainly helped to foster that impression by his own words. Although the claimant’s attorney mentioned that he was claiming this case to be either an occupational disease or repetitive trauma; January 24, 1996 Transcript, 8-9; there were neither proposed findings nor proposed corrections that would tend to establish that hearing loss is peculiar to the claimant’s occupation, as required by the definition of “occupational disease” in § 31-275(15) C.G.S. In fact, most of our decisions quantify hearing loss from repeated noise exposure as a repetitive trauma injury. See, e.g., Dorsey v. UTC/Norden Systems, 15 Conn. Workers’ Comp. Rev. Op. 447, 2268 CRB-7-95-1 (September 6, 1996), aff’d, 45 Conn. App. 707 (1997); Blassingame v. Acme Steel Company, 16 Conn. Workers’ Comp. Rev. Op. 20, 3007 CRB-6-95-3 (October 8, 1996), aff’d, 45 Conn. App. 914 (1997) (per curiam). On the record before him, there was no basis for the trier of fact to suspect that an occupational disease was present in this case.

However, there has been a recent development in our law that changes the complexion of this case. In Dorsey, supra, this board stated 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 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.” The claimant urged this board to reconsider that position, in accordance with a dissent filed by Chairman Frankl in Dorsey. As noted above, Dorsey was affirmed by our Appellate Court, which stated that a repetitive trauma injury must always be treated as an accidental injury with a one-year statute of limitations from the date of the last injurious exposure to the incidents of the repetitive trauma, regardless of whether the claimant was aware of the causal link between his employment and that injury. 45 Conn. App. 711.

Soon after the Appellate Court affirmed Dorsey, our Supreme Court issued a decision in Discuillo v. Stone & Webster, 242 Conn. 570 (1997). Discuillo concerned a painter’s heart attack claim that a commissioner found was partially caused by repetitive physical and mental job stress. Observing that there is no specific notice provision regarding repetitive trauma injuries, and that the Workers’ Compensation Commission has no power to assert jurisdiction over a case unless it is expressly derived from statute, the Court concluded that every cognizable workers’ compensation claim must be made to fit within the existing provisions of § 31-294c by being construed as either an “accident” or an “occupational disease.” The Court went on to say that the claimant’s heart attack did not resemble an occupational disease as much as it did an accidental injury, and concluded that it should be labeled as such for jurisdictional purposes.

Although the Court reaffirmed that “§ 31-294 does not contain any provision for tolling the filing period for a claim of accidental injury based on the claimant’s lack of awareness of the work-related nature of that injury;” Id., 581-82; the Court also stressed that repetitive trauma injuries are not automatically categorized as “accidental injuries” rather than “occupational diseases” for purposes of determining jurisdiction under § 31-294c. Id., 580 n. 10. “We leave open, however, the question as to what factual predicate, if any, would support a conclusion that a repetitive trauma injury should be treated as an occupational disease for jurisdictional purposes.” Id. Apparently, such a repetitive trauma injury would be subject to the broader statute of limitations that § 31-294c(a) sets forth for occupational diseases.

There have been several past cases in which the claimant argued that hearing loss constituted an occupational disease. See, e.g., Santry v. Fermont Division, 13 Conn. Workers’ Comp. Rev. Op. 230, 1768 CRB-4-93-6 (April 13, 1995); O’Leary v. City of New Britain, 3 Conn. Workers’ Comp. Rev. Op. 108, 236 CRD-6-83 (Dec. 2, 1986). The burden is on the claimant, however, to establish that such disease is “so distinctively associated with the employee’s occupation that there is a direct causal connection between the duties of the employment and the disease contracted.” Discuillo, supra, 579, quoting Hansen v. Gordon, 221 Conn. 29, 35 (1992). As discussed above, the claimant offered no evidence and proposed no findings that would tend to establish his hearing loss was an occupational disease, even though he briefly mentioned occupational disease at the formal hearing. We do not believe that a second opportunity to offer proof regarding that issue is warranted here. Thus, we must construe the claimant’s hearing loss as an accidental injury for the purposes of jurisdiction under § 31-294c.

As such, the claimant’s failure to file a Form 30C within one year of August 1992, which was the last date he worked, and was presumably the last date of his injurious exposure to loud noise at his workplace, was fatal to his claim. See Discuillo, supra, 581; Borent v. State, 33 Conn. App. 495, 499 (1994). Furthermore, the claimant would not have been helped even if Dorsey had been overruled, because the trier found that the claimant was aware of the connection between his employment and his injury prior to one year before notice of his claim was filed in March 1994. The claimant testified that he knew he had hearing loss in September 1992, and assumed it was related to his work. January 24, 1996 Transcript, p. 15-16. This testimony supports the trier’s finding, and we may not disturb it on appeal. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).

The trial commissioner’s decision is thus affirmed.

Commissioners George A. Waldron and Robin L. Wilson concur.

Workers’ Compensation Commission

Page last revised: June 13, 2005

Page URL: http://wcc.state.ct.us/crb/1997/3296crb.htm

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