CASE NO. 4804 CRB-3-04-4
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 22, 2005
EASTER SEALS GOODWILL INDUSTRIES
HARTFORD INSURANCE GROUP
TRAVELERS PROPERTY & CASUALTY
LIBERTY MUTUAL INSURANCE GROUP
TIG INSURANCE COMPANY
SECOND INJURY FUND
The claimant was not represented at oral argument. Notice sent to Joseph Gillis, Esq., Gillis & Gillis, 2 Whitney Avenue, #502, New Haven, CT 06510.
The respondent employer and the insurer Hartford Insurance Group were represented by Laurence McLoughlin, Esq., Mathis & Associates, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.
The respondent employer and the insurer Travelers Property & Casualty were represented by James Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
The respondent employer and the insurer CHAWCT were not represented at oral argument. Notice sent to Kristen Falls, Esq., Letizia, Ambrose & Falls, P.C., 1 Church Street, New Haven, CT 06510.
The respondent employer and the insurer ESIS were represented by Margaret McGrail, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.
The respondent employer and the insurer Liberty Mutual Insurance Group were not represented at oral argument. Notice sent to Kristen Stein, Esq., Law Offices of Brennan & Turret, 1 Century Tower, 265 Church Street, Suite 802, New Haven, CT 06510-7014.
The respondent employer and the insurer TIG Insurance Co. were represented by Jason E. Indomenico, Esq., Howd & Ludorf, 65 Wethersfield Avenue, Hartford, CT 06114-1190.
The respondent Second Injury Fund was not represented at oral argument. Notice sent to Kenneth Kennedy, Esq., Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120
These Petitions for Review from the April 8, 2004 Finding and Award of the Commissioner acting for the Third District were heard November 19, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr., and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent employer, through and together with its insurers Hartford Insurance Group and Travelers Property & Casualty, have filed two separate petitions for review from the April 8, 2004 Finding and Award of the Commissioner acting for the Third District. They each argue on appeal that the trier erred by extending liability to their periods of coverage under § 31-299b, on both medical and due process grounds. We find no error, and affirm the trier’s evidentiary findings, while noting that further proceedings will be necessary in this case to determine any apportionment of liability under § 31-299b.
The claimant began working for the respondent employer Easter Seals Goodwill Industries in 1987 as a part-time interpreter. In 1989, she moved on to the position of job coach, which was a full-time position. That position required her to unfold cardboard, label bottles, carry heavy trays, and grasp and pinch approximately 1,000 to 1,500 hangers per day as part of her inspection duties. She also spent about two hours each day filling out written reports. In 1996, she began complaining to Dr. Arons about pain in her right elbow. She then took on a new position at Easter Seals, that of vocational resource specialist/case manager. Her caseload in the new job demanded even more writing and paperwork, which the claimant testified aggravates her right elbow. She also testified that both the positions of job coach and vocational rehabilitation specialist demanded that she perform various types of repetitive work, and that she has had ongoing and worsening pain in her right elbow since 1996.
In 2002, Dr. Arons started to recommend that the claimant undergo surgery on her right elbow. Currently, her symptoms include right elbow pain, elbow locking and swelling. Dr. Arons reported that there was plenty of documentation to show that the claimant 2’s work was causing her to suffer from lateral epicondylitis (chronic tennis elbow), which would no longer improve with conservative treatment. Testifying by deposition on July 8, 2003, Dr. Arons stated that the claimant’s condition first developed in 1996, and had progressively worsened over time. Claimant’s Exhibit A. Dr. Arons did not identify one specific incident as the cause of her tennis elbow syndrome, but rather her continuing work activities over the years with the respondent, which resulted in repetitive trauma to her elbow.
The trial commissioner found that the claimant’s testimony was credible, and that she had been experiencing repetitive trauma in the course of her employment with Easter Seals since December 1, 1989. The trier also found that Dr. Arons’ reports were credible and persuasive with regard to the claimant’s right elbow condition. The trier specifically accepted the opinion that the claimant’s elbow condition was the result of repetitive trauma that occurred during “the claimant’s work activities with the respondent over the years.” Findings, ¶ G. The trier thus ordered the respondent to pay any benefits to which the claimant was entitled, including medical and surgical bills. Subsequently, the respondent ESIS filed a Motion to Correct which the trier granted. The corrected finding specifically directed that the respondent Travelers pay the claimant these benefits, thereby establishing Travelers as the initially liable carrier under § 31-299b C.G.S. In the meantime, petitions for review had already been filed by the respondent Travelers, which was on the risk as Easter Seals’ workers’ compensation insurer from August 5, 2002 through August 5, 2003, and by the respondent Hartford Insurance Group, which was on the risk as a workers’ compensation insurer for a period of time prior to 1996.
We first address the appeal of Travelers, which argues that it should not be held liable for the claimant’s repetitive trauma injury based upon the February 15, 2002 injury date listed on the claimant’s Form 30C. In Travelers’ view, sufficient notice was not given for any alleged repetitive trauma occurring within the August 2002-August 2003 period of its insurance coverage. Travelers therefore argues that due process precluded the commissioner from ordering it to pay benefits.
Although § 31-294c(a) states that “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 accident . . . ,” there are well-recognized statutory exceptions to this rule. Under § 31-294(c), the failure to file a notice of claim will not bar maintenance of proceedings “if there has been a hearing or a written request for a hearing or an assignment for a hearing within a one-year period from the date of the accident . . . or 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 section 31-294d.” The statute goes on to say that an inaccuracy in the notice of claim will not bar proceedings “unless the employer shows that he was ignorant of the facts concerning the personal injury and was prejudiced by the defect or inaccuracy of the notice.”
The file shows that an attorney for Sizemore Law Offices filed an appearance in this case on behalf of Travelers on January 24, 2003. According to documents in our file, Travelers received notice of Dr. Arons’ July 8, 2003 deposition, though no one attended it on Travelers’ behalf. The law firm of Pomeranz, Drayton & Stabnick then filed an appearance in lieu of Sizemore Law Offices shortly before the September 15, 2003 formal hearing, at which proceeding Anne Zovas, Esq. was present on behalf of Travelers. At the outset of the hearing, the claimant’s counsel stated that the claimant had worked and continued to work at Easter Seals, and that the period of her repetitive trauma was equivalent to her period of employment. September 15, 2003 Transcript, pp. 3-4. Counsel for ESIS represented that Travelers was the last carrier on the risk, in response to which Travelers asserted that there had been no claim for an injury during their period of coverage. Id., pp. 5-6. ESIS’ counsel then stated that “there have been informal hearings at which time a claim has been made for continuing repetitive trauma. Attorney Zovas just put her appearance in, so she was probably not aware of that.” Id., p. 6.
The claimant then testified that her job duties as a vocational specialist had not diminished from 1998 to the present. In fact, she had been given the additional duty of serving as a protection and advocacy investigator. Id., p. 50. She later testified that, after considering Dr. Arons’ advice regarding proper body mechanics and his explanation regarding tennis elbow, she prepared a memo indicating the tasks she was unable to perform as part of her job coaching duties. Although her employer responded by decreasing the assignments that required repetitive use of her arms, she still had to write and type as part of that job, which continued to aggravate her condition. Id., pp. 57-59. She testified that her case management duties demanded that she write up reports for fifteen or more hours per week. Id., 69. She confirmed that her elbow symptoms had been getting worse from 1996 through the present. Id., 70.
In his July 8, 2003 deposition, Dr. Arons explained that the claimant’s tennis elbow syndrome was cumulative and progressive, and is “precipitated, aggravated and augmented and worsened by specific incidents.” Claimant’s Exhibit A, p. 10. “In this case, it’s little tears of the origin, and it can be acute or it can be repetitive and chronic through the years. And then it heals, then it breaks down by scarring, then it starts up again. So, that’s why they call it chronic tennis elbow syndrome.” Id., p. 11. Dr. Arons stated that the claimant’s symptoms waxed and waned, but her diagnosis had remained the same, and she had had it from August 20, 1996 “all through the subsequent visits up to her last visit of February ‘03,” when she demonstrated positive results on objective clinical tests such as chair-raising. Id., pp. 15, 40. He confirmed that the claimant’s condition continually recurred as a result of daily activities and other activities that were involved in her job. Id., p. 19. He also agreed that the claimant’s daily activities and work activities were equal contributors to her condition from October of 1995 “to the present.” Id., p. 27.
This evidence suffices to show that the claimant’s job duties during Travelers’ period of coverage continued to produce repetitive trauma. As an appellate review board, we must uphold the trier’s factual determination in that regard. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002). With respect to notice, counsel for Travelers was present during the formal hearing, and stated on the record that Travelers was contesting whether repetitive trauma had been claimed during its period of coverage. Evidence was subsequently introduced to support a finding that the period of repetitive trauma extended through the date of the formal hearing, and Dr. Arons’ February 2003 examination. We do not believe that Travelers was deprived of due process here, as it had actual notice that its period of coverage was being implicated in this claim. If that were not the case, a representative for Travelers would not have filed an appearance in January 2003.
Also, we do not believe that a claimant should bear any burden to file additional written notices of a repetitive trauma claim based on an employer’s subsequent decision to purchase insurance with another provider. Our Supreme Court has stated that we should interpret notice of claim requirements under the Act “in a manner consistent with the legislature’s intent to keep the process of initiating a claim simple and accessible to lay persons.” To bar a claimant from seeking recovery based on the absence of an updated written notice would run counter to that remedial objective. See also, § 31-343 C.G.S. (providing that “as between any such injured employee or his dependent and the insurer, every such contract of insurance shall be conclusively presumed to cover the entire liability of the insured”).
By its nature, a repetitive trauma injury involves more than one trauma at more than one moment in time, and generally occurs over a time continuum. Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 614 (2000). The statute of limitations for filing a repetitive trauma claim begins running as of the last date of an employee’s exposure to trauma during the course of employment, Id.; Borent v. State, 33 Conn. App. 495, 499 (1994). Our Supreme Court explained in Russell, however, that the date on the notice of claim need not be the last day of exposure to the trauma. “The rule that the statute of limitations period begins to run from the date of last exposure for some repetitive trauma injuries has no relevance, and bears no logical relationship, to the rule requiring sufficient time related information in a notice of claim to allow an employer to investigate a repetitive trauma injury.” Russell, supra, 616. As long as a notice of claim provides adequate information as to the alleged period of injurious exposure, the employer is sufficiently equipped to make a timely investigation of the claim. Id., 614-15. “A date specified in a notice of claim for a repetitive trauma injury that is prior to the last date of exposure is sufficient to provide notice to an employer of those injuries that allegedly have occurred up until the latest date stated in such a notice of claim.” Id., 617.
It follows that, where a repetitive trauma injury is at issue at a formal hearing, the use of a specific injury date on a written notice of claim need not prevent the claimant from incorporating a time period following that date into the claim. A finding of further traumatic exposure would be permissible as long as the evidence supports such a finding, and the employer can be shown not to have been prejudiced by the inaccuracy in the written notice.
Here, the date on the notice was February 15, 2002. As noted above, the evidence presented at the hearing showed that repetitive trauma continued beyond that date, as the claimant was performing the same job, and her doctor testified that the condition was continuing to be aggravated. We discern no prejudice to the respondent Travelers by virtue of the February 15, 2002 date of injury on the notice of claim. Thus, we affirm the trier’s award against Travelers.
Turning our attention to the appeal by the respondent Hartford Insurance Group, we observe that the trier specifically confirmed on the record that the formal hearing “was only going to address compensability, not the entire period of causation as far as 299b.” Transcript, pp. 75-76. In fact, the trier’s award does not mention apportionment of liability for this claim, as it would have been premature to do so. Any assignment of liability based on percentages of responsibility for the claimant’s repetitive trauma must await an additional evidentiary hearing. Hartford Insurance Group argues, however, that it was also improper for the trier to determine that the claimant’s injury was the “result of repetitive trauma work activities with the respondent from December 1, 1989 to the present.” Findings, ¶ B.
Looking at the evidence, both the claimant’s testimony regarding her duties as a job coach and Dr. Arons’ description of her chronic elbow problems as having been substantially caused by repeated incidents of workplace trauma over the length of her employment support an initial finding that the claimant’s repetitive trauma exposure occurred from 1989 through the present. See, e.g., Claimant’s Exhibit 1, pp. 33-35 (Dr. Arons agreed that claimant’s condition developed progressively over time rather than beginning with acute incident in 1995). Thus, we find no error in the trier’s inclusion of this finding in his award. We stress, however, that this finding does not resolve the proportional amount of exposure that Hartford Insurance Group will ultimately have pursuant to § 31-299b, as the trier has yet to determine the differentiated roles that each time period had in the development of the claimant’s condition.
The trial commissioner’s decision is accordingly affirmed. Further proceedings will be necessary to determine the matter of apportionment under § 31-299b.
Commissioners A. Thomas White, Jr., and Ernie R. Walker concur.