CASE NO. 3446 CRB-03-96-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 5, 1998
CLINTON PUBLIC SCHOOLS
ITT HARTFORD INSURANCE GROUP
The claimant was represented by Penn Rhodeen, Esq., 278 Orange St., New Haven, CT 06510.
The respondents were represented by Joseph E. Skelly, Jr. Esq., Edward H. Henfey & Associates, 55 Farmington Ave., Suite 500, Hartford CT 06105.
This Petition for Review from the September 25, 1996 Finding and Dismissal of the Commissioner acting for the Third District was heard June 13, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the September 25, 1996 Finding and Dismissal of the trial commissioner acting for the Third District. In that decision, the trial commissioner ruled that the claimant’s claim for a mental injury, which did not arise from a physical injury or occupational disease, was precluded by P.A. 93-228 (now § 31-275(16)(B)) which became effective July 1, 1993. In support of his appeal, the claimant contends that P.A. 93-228 does not apply to his claim. We find no error.
The trial commissioner found the following relevant facts. The claimant was employed as a school teacher for the respondent employer from 1968 until October 12, 1993. The claimant alleged that in 1989 he began to experience difficulties with the principal and that in the 1990-1991 school year he began experiencing difficulties with other teachers. In 1991 the claimant was transferred to a teaching position in a high school where he alleges that the administration was unresponsive and that there was very little accountability or discipline. In 1992 the claimant was treated with medication by Dr. Scully, however there was no evidence presented to indicate that Dr. Scully diagnosed depression. The claimant continued in his teaching position and completed the 1992-1993 school year on June 23, 1993. The claimant returned to his teaching position in September of 1993. On October 2, 1993, the claimant consulted with Dr. Swift, who diagnosed depression and referred the claimant to a psychiatrist, Dr. Tessler, for medication.
The claimant stopped working for the employer on October 12, 1993. In April of 1994 the claimant submitted a workers’ compensation claim for his diagnosed condition of depression. Because P.A. 93-228 became effective July 1, 1993 and eliminated claims for mental injuries such as the claimant’s, the trial commissioner concluded that he did not have jurisdiction over the claim.
The issue on appeal is whether P.A. 93-228 applies to the claimant’s claim of injury. Public Act 93-228 limited the definition of “personal injury” in § 31-275 C.G.S. so as to exclude a “mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease.” The legislation further excluded any “mental or emotional impairment which results from a personnel action, including, but not limited to, a transfer, promotion, demotion or termination.” These provisions are now codified in § 31-275(16)(B). The claimant contends that P.A. 93-228 does not apply to his claim because the claimant was suffering from depression prior to July 1, 1993. Specifically, the claimant contends that “(b)oth his psychiatrist and his psychotherapist were of the opinion that his mental injury was a work-related repetitive trauma injury and that he was suffering from it as of June 1993.” (Claimant’s Brief at p. 3).
We “have adhered to the date of injury rule since 1916 to determine which of two or more successive amendments to the act governs the employment relationship. Under this common law rule, the rights and obligations of the parties are governed by the provisions of the act in effect at the time of the injury.” Rice v. Vermilyn Brown, Inc., 232 Conn. 780, 787 (1995). Our Supreme Court has repeatedly recognized the “date of injury rule” as “a presumption of legislative intent within the workers’ compensation context....” Gil v. Courthouse One, 239 Conn. 676, 686 (1997). Moreover, the “legislature is presumed to know of our interpretation of the workers’ compensation statutes and to know that it must make its intention clear if it intends to override the date of injury rule.” Gil, supra, at 686.
Accordingly, we must determine the date of the claimant’s injury in order to determine whether P.A. 93-228 applies. “It is settled law that the date of injury is either the last day of exposure to the work related incidents of repetitive trauma or the date of accident. The last day of exposure is usually the last date of employment.” Discuillo v. Stone & Webster, 43 Conn. App. 224, 226-7 (1996), aff’d. 242 Conn. 570 (1997); see also Crochiere v. Board of Education, 227 Conn. 333 (1993); Knapp v. New London, 44 Conn. App. 465, 469 fn. 3 (1997); Borent v. State, 33 Conn. App. 495, 499 (1994).
In the instant case, the claimant’s last day of employment was October 12, 1993 and his depression was not diagnosed until October of 1993. The claimant contends that his internist, Dr. Scully, prescribed medication for his depression since 1992. (Claimant’s Brief at p. 2). However, the trial commissioner did not make this finding, but rather found that there “was no evidence presented to indicate that Dr. Scully diagnosed depression.” (Finding No. 9). The trial commissioner further found that the claimant was not treated by Dr. Scully between February and June of 1993. (Finding No. 11). Under the facts as found by the trial commissioner, it was reasonable for the trial commissioner to apply the date of injury rule in determining whether P.A. 93-228 applies. Moreover, because the alleged injury was a repetitive trauma injury, the trial commissioner correctly determined the date of injury to be October 12, 1993. See Discuillo, supra; Crochiere, supra; and Knapp, supra.
In support of his appeal, the claimant cites Bennett v. Beiersdorf, Inc., 889 F.Supp. 46 (D.Conn. 1995). In that decision, the federal court examined the effect of P.A. 93-228 where the plaintiff claimed that she had suffered negligent infliction of emotional distress during her employment from 1992 to 1994. The court explained that “to the extent (the claim) is based on injury occurring before July 1, 1993, it is barred by the exclusivity provision of the WCA.” Id. at 51. The court further explained that “the WCA does not bar an action to recover for such impairment incurred after July 1, 1993.” Id. at 50. Based upon the reasoning of the court, it is arguable that a claimant should be permitted to recover workers’ compensation benefits for emotional distress sustained prior to July 1, 1993. However, in the case at hand, as of July 1, 1993 the claimant was not disabled from work and had not been diagnosed with depression. (Finding B). Thus, we find no error in the trial commissioner’s determination that the claimant’s date of injury occurred after July 1, 1993.
Finally, we will address the claimant’s contention that the trial commissioner erred in denying his Motion to Correct and Amended Motion to Correct. We find no error. On review of the denial of a Motion to Correct, this board may not alter a commissioner’s findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed material facts. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995). A Motion to Correct also may be denied properly where the legal conclusion of the commissioner would not be altered by the substituted findings. Id.; Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994). In the instant case, the trial commissioner’s determination regarding the application of P.A. 93-228 would not have been altered by the requested findings of fact.
The trial commissioner’s decision is affirmed.
Commissioners James J. Metro and John A. Mastropietro concur.