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Holmes v. G.A. Masonry et al.

CASE NO. 3338 CRB-8-96-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 16, 1997

DONALD HOLMES

CLAIMANT-APPELLEE

v.

G.A. MASONRY

EMPLOYER

and

WAUSAU INSURANCE CO.

INSURER

and

KIEWIT & SONS

EMPLOYER

and

AETNA LIFE & CASUALTY

INSURER

RESPONDENTS-APPELLEES

and

L.G. DEFELICE

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Scott N. Roberts, Esq., 349 Mitchell St., P.O. Box 883, Groton, CT 06340.

The respondents G.A. Masonry and Wausau Insurance were represented by Robert McGann, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066.

Respondents Kiewit & Sons and Aetna Insurance were represented by Cynthia Garrity, Esq., Law Offices of Michael Riley, P.O. Box 2138, Hartford, CT 06145, who did not appear at oral argument.

The respondents L.G. DeFelice and Liberty Mutual Insurance were represented by Timothy Ward, Esq., Law Offices of Nancy S. Rosenbaum, 655 Winding Brook Dr., P.O. Box 695, Glastonbury, CT 06033.

The Second Injury Fund was represented by Michael Giammatteo, Esq., Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford CT 06141-0120.

This Petition for Review from the May 10, 1996 Finding and Award of the Commissioner acting for the Eighth District was heard February 28, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer L.G. DeFelice, its insurer Liberty Mutual Insurance (hereinafter “respondents”), and the Second Injury Fund (“Fund”) have petitioned for review from the May 10, 1996 Finding and Award of the Commissioner acting for the Eighth District. In that decision the trial commissioner concluded that the claimant provided timely notice of claim for a repetitive trauma injury to his back. Specifically, the trial commissioner concluded that because a hearing was held within one year following the date that the claimant first had knowledge of the repetitive trauma injury, that therefore an exception to the one-year statute of limitations was applicable pursuant to § 31-294c. In support of their appeals, the respondents and the Fund contend that the claimant’s lack of knowledge is not a legally sufficient basis for extending the one-year statute of limitations period for a repetitive trauma injury.

The trial commissioner found the following relevant facts. The claimant sustained an accidental injury to his back and left leg while employed by G.A. Masonry on January 15, 1988 when he was operating a fork lift which turned over. This injury was the subject of an approved voluntary agreement. The claimant lost approximately four weeks of work following that injury, and returned to G.A. Masonry in March of 1988. Subsequently, the claimant was employed by DeFelice at a construction site for two seasons between March 28, 1988 and October 17, 1989. The claimant’s employment with DeFelice involved operating heavy equipment including a scraper, a bulldozer and a loader. These job duties at DeFelice aggravated his back condition and caused a repetitive trauma injury to his back. The claimant was temporarily totally disabled as of May 13, 1991. The claimant underwent fusion surgery to his lumbar spine on October 1, 1991 and a second fusion in November of 1994.

The trial commissioner found that Dr. Becker, who performed said surgeries together with Dr. Druckemiller, did not inform the claimant that his back condition was in part caused by the repetitive trauma from his construction duties at DeFelice until August 15, 1991. The claimant acknowledged that his back condition continued to deteriorate subsequent to his employment with G.A. Masonry. The claimant attributed this deterioration to his original January 15, 1988 injury. Moreover, Dr. Becker’s initial evaluation of May 19, 1990 indicated that the claimant’s back condition was the result of the January 15, 1988 injury. Subsequently, in a July 22, 1995 report, Dr. Becker opined that the claimant sustained substantial trauma to his back during his employment with DeFelice. (Finding No. 41; Finding C).

The trial commissioner concluded regarding apportionment of the claimant’s temporary total disability and medicals, that DeFelice was responsible for two-thirds of the liability, and that G.A. Masonry was responsible for the remaining one-third. Furthermore, the trial commissioner apportioned the claimant’s permanent partial disability as follows: fifty percent to the claimant’s preexisting medical condition; twenty-five percent to the January 15, 1988 injury at G.A. Masonry; and twenty-five percent to the employment at DeFelice.

The respondents and the Fund contend that pursuant to § 31-294c, the claimant failed to file a timely notice of claim for the repetitive trauma injury incurred while employed by DeFelice. 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....

Section 31-294c provides several exceptions to the notice of claim requirement, including where “there has been a hearing or a written request for a hearing” within one year of the injury. This statute is jurisdictional in nature, and prevents a workers’ compensation commissioner from considering any claim that is not timely filed. Discuillo v. Stone & Webster, 242 Conn. 570, 575 (1997); Peters v. State of Connecticut, 10 Conn. Workers’ Comp. Rev. Op. 32, 34, 1103 CRD-3-90-8 (Jan. 13, 1992).

The trial commissioner concluded that due to the claimant’s lack of knowledge, the one-year statute of limitations period regarding his claim for repetitive trauma during his employment with DeFelice did not commence until August 15, 1991. The trial commissioner thus concluded that an informal hearing held on May 19, 1992 satisfied the exception to filing a written claim pursuant to § 31-294c.

The Appellate Court specifically addressed the issue of whether “lack of knowledge regarding a repetitive trauma injury extends the one year statute of limitations for filing a notice of claim beyond one year after the last date of exposure.” Dorsey v. United Technologies Corp., 45 Conn. App. 707, 711 (1997). The court recognized that repetitive trauma injuries are not specifically referenced in § 31-294c, which provides for one year to file a claim for an accidental injury and three years to file a claim for an occupational disease. The court concluded that “the statute of limitations in repetitive trauma cases runs one year from the date of last injurious exposure, regardless of when the plaintiff developed knowledge that the injury resulted from his employment.” Id. at 711 (emphasis added).

Subsequently, the Connecticut Supreme Court again addressed the above issue in Discuillo, supra. The Supreme Court held that “for purposes of jurisdiction, every claim must fit within the existing jurisdictional provisions of § 31-294. In other words, for purposes of jurisdiction, every cognizable claim must be considered as stemming from either an ‘accident’ or an ‘occupational disease’ as those terms are used in § 31-294c.” Discuillo, supra, at 577. In Discuillo, the court examined the definition of “occupational disease” and concluded that the claimant’s heart attack constituted an accidental injury rather than an occupational disease. Id. at 578-9.1 In the instant case, the claimant does not contend that his injury constituted an occupational disease, and thus we need not address that issue.

In the instant case, the claimant’s exposure to repetitive trauma ceased on October 17, 1989, his last day of employment with DeFelice. Thus, pursuant to Discuillo, supra, and Dorsey, supra, in order to be timely, the claimant was required to file a notice of claim, or meet one of the exceptions set forth in § 31-294c, on or before October 17, 1990. The trial commissioner’s determination that there was a hearing held on May 19, 1992 is thus not sufficient to find timely notice for his claim against DeFelice.

We note that the claimant contends in his brief that the facts in this case are distinguishable from either Dorsey, supra, or Discuillo, supra. Specifically, the claimant contends that in the case at hand, it was reasonable for the claimant to believe that the deterioration of his back while working at DeFelice was caused solely by the January 15, 1988 compensable injury. Significantly, even the claimant’s physician, Dr. Druckemiller, had advised the claimant in early 1990 that due to the January 15, 1988 injury, “it was only a matter of time before his back condition would deteriorate to the extent that the claimant would require surgery.” (Finding No. 35). Similarly, Dr. Becker in his initial evaluation of May 19, 1990 “reported that it was his impression that the claimant’s back condition was the result of his work related injury of January 15, 1988.” (Finding No. 38). While the claimant’s argument is compelling, the decisions in Discuillo, supra, and Dorsey, supra, provide no exceptions to the requirement that a claim for repetitive trauma must be filed within one year following the last date of injurious exposure.

Accordingly, the trial commissioner’s decision as to DeFelice is reversed.

Commissioners James J. Metro and John A. Mastropietro concur.

1 The court in Discuillo, supra, explained that an occupational disease is specifically defined by § 31-275(11) as including “any disease peculiar to the occupation in which the employee was engagedand due to causes in excess of the ordinary hazards of employment as such....” The court also explained 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. Specifically, the court stated, “We leave open... 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. BACK TO TEXT

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