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Reynolds v. Architectural Steel

CASE NO. 3434 CRB-03-96-09

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 18, 1998

RICHARD REYNOLDS

CLAIMANT-APPELLANT

v.

ARCHITECTURAL STEEL

EMPLOYER

and

HOME INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Charles R. Douthat, Esq., 26 Trumbull St., P.O. Box 1496, New Haven, CT 06506.

The respondents were represented by Scott Wilson Williams, Esq., Maher & Williams, 1300 Post Rd., P.O. Box 550, Fairfield, CT 06430-0550.

This Petition for Review from the September 16, 1996 Finding and Dismissal of the Commissioner acting for the Third District was heard May 23, 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 claimant has petitioned for review from the September 16, 1996 Finding and Dismissal of the Commissioner acting for the Third District. In that decision the trial commissioner found that the claimant sustained an accidental injury to his head on February 29, 1984 and did not file a notice of claim until May of 1993. The trial commissioner thus concluded that the claimant failed to file a timely notice of claim as required by § 31-294c. In support of his appeal, the claimant makes the following contentions: (1) the employer furnished medical care for said injury within one year of the injury; (2) notice of his claim should be deemed timely because the claim was filed within one year after the claimant first had knowledge that his seizures were related to his head injury; and (3) the claimant’s seizure disorder constituted an occupational disease.

The trial commissioner found the following relevant facts. The claimant was employed by the respondent employer as a truck driver and yard foreman. On February 29, 1984, the claimant was moving a steel beam with a crow bar which slipped and struck him in the head. The claimant sustained a laceration to his forehead and was knocked unconscious. A co-worker cleaned the laceration and applied a bandage to the claimant’s forehead. The co-worker suggested that the claimant go to an emergency room, but the claimant did not do so. The claimant missed work on the following day, and experienced headaches and weakness in his legs for several days following the incident.

Soon after the accident, on March 9, 1984, the claimant experienced a grand mal seizure during his sleep, and was taken to the hospital where he was treated by Dr. Sawicki. The claimant alleges that he suffered approximately two to three seizures per year. In 1992 the claimant was evaluated by a neurologist, Dr. Spencer, who ordered an MRI, and diagnosed a right supraorbital arachnoid cyst in the brain area. Dr. Spencer opined that the claimant’s seizure disorder was due to the head injury of February 29, 1984. Dr. Spencer explained her diagnosis to the claimant on June 3, 1992.

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 a claim that is not timely filed. Discuillo v. Stone & Webster, 242 Conn. 570, 575 (1997); Keegan v. Aetna Life & Casualty Ins. Co., 42 Conn. App. 803, 806 (1996).

We will first address the claimant’s contention the employer furnished the claimant with medical care for his injury on the day that the accident occurred. Section 31-294c provides an exception to the requirement that a notice of claim be filed within one year, if “within the applicable period an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as provided in 31-294d.” Our Supreme Court has explained that the medical care exception was “based upon the fact that if the employer furnishes medical treatment he must know that an injury has been suffered which at least may be the basis of such a claim.” Galgano v. Torrington, 11 Conn. Workers’ Comp. Rev. Op. 133, 136, 1280 CRD-5-91-8 (June 30, 1993), quoting Gesmundo v. Bush, 133 Conn. 607, 612 (1947). In Kulis v. Moll, 172 Conn. 104 (1976) the Supreme Court held that an employer’s act of driving an employee to a hospital did not constitute furnishing of medical care pursuant to § 31-294c. In the instant case, we find no error in the trial commissioner’s determination that the co-worker’s application of a bandage on the claimant did not constitute the furnishing of medical care pursuant to § 31-294c.

In further support of his appeal, the claimant contends that his injury constituted an occupational disease because being hit with a steel beam is more likely to occur in the steel industry in which the claimant worked. We disagree. In order to constitute an occupational disease, the disease must be “‘peculiar to the occupation’ and ‘in excess of the ordinary hazards of employment....’” Discuillo, supra, at 578. “Thus, an occupational disease ‘does not include a disease which results from the peculiar conditions surrounding the employment of the claimant in a kind of work which would not from its nature be more likely to cause it than would other kinds of employment carried on under the same conditions.’” Crochiere v. Board of Education, 227 Conn. 333, 352-53 (1993). Being hit with a heavy object such as a steel beam is a danger common to many types of work, including not only the steel industry but also the construction industry, ship building, bridge building and certain manufacturing industries.

Section 31-275(16) defines personal injury, in pertinent part, as an “accidental injury which may be definitely located as to the time when and the place where the accident occurred....” In the instant case, it is undisputed that the claimant sustained an injury to his head on February 29, 1984. We find no error in the trial commissioner’s determination that the claimant’s accident constituted an accidental injury rather than an occupational disease. In Discuillo, supra, the Supreme Court concluded that a stress-induced heart attack constituted an accidental injury rather than an occupational disease, even though such an injury “does not necessarily coincide with the everyday usage of the word ‘accident.’” Discuillo, supra, at 580. Certainly, being hit with a steel beam does coincide with the everyday usage of the word ‘accident.’ We thus agree with the trial commissioner’s determination that the claimant was required to file his notice of claim within one year of February 29, 1984. See Keegan, supra, at 807.

Our Supreme Court has explained 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.” Discuillo, supra, at 581-82. Accordingly, the claimant’s argument that his lack of knowledge that his seizures were related to his head injury should extend the statute of limitations period is unpersuasive. Discuillo, supra; Keegan, supra, at 809-10.

The trial commissioner’s decision is affirmed.

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

Workers’ Compensation Commission

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