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Veilleux v. Complete Interior Systems, Inc. et al.

CASE NO. 5231 CRB-8-07-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 22, 2008

ANDRE A. VEILLEUX

CLAIMANT-APPELLANT

v.

COMPLETE INTERIOR SYSTEMS, INC.

WALLBOARD SYSTEMS, INC.

EMPLOYERS

and

STAR INSURANCE COMPANY

HARTFORD INSURANCE GROUP

MARYLAND CASUALTY

UTICA NATIONAL INSURANCE

INSURERS

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Frank Russo, Esq., and Jon D. Berman, Esq., Berman & Russo, Attorneys at Law, 819 Clark Street, South Windsor, CT 06074.

The respondents Complete Interior Systems, Inc., Wallboard Systems, Inc., Star Insurance Company, Maryland Casualty, and Utica National Insurance were represented by Robert Dombrowski, Esq., Morrison Mahoney LLP, One Constitution Plaza, 10th Floor, Hartford, CT 06103.

The respondents Wallboard Systems and Hartford Insurance Group were represented by John W. Greiner, Esq., Law Offices of David J. Mathis, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.

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

This Petition for Review from the May 3, 2007 Finding and Dismissal of the Commissioner acting for the Eighth District was heard December 14, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. This present case concerns the nature of a “repetitive trauma” claim. The claimant filed a claim for benefits asserting work related cervical spine injuries sustained in the course of his employment installing sheetrock. His Form 30C was filed more than one year after he ceased employment and his claim was dismissed by the trial commissioner as being untimely pursuant to § 31-294c C.G.S, since the injuries were due to repetitive trauma. On appeal, the claimant argues that although his ailments did not rise to the level of an occupational disease that “for jurisdictional purposes only” the trial commissioner was compelled to determine whether this repetitive trauma “resembled” an occupational disease. Upon review we find no support in the statute for the premise that the jurisdictional notice requirements under Chapter 568 are somehow bifurcated from the substantive jurisdictional requirements to obtain benefits. Therefore, we affirm the trial commissioner and dismiss this appeal.

The following facts are relevant to our legal considerations in this appeal. The claimant commenced his employment at Wall Board Systems, Inc., in 1992 and worked there and at Complete Interior Systems, Inc., until he suffered a compensable low back injury in 2002.1 He had been examined by a neurologist in 1994, and related information pertaining to a pre-employment motor vehicle accident to the physician at that time. His treating physician for the back injury, Dr.Gerald Becker, determined following review of a November 2003 MRI that the claimant suffered from cervical myelopathy. The claimant adamantly maintains that his first knowledge of any cervical injury and its possible relationship to his work as a sheet rock installer was when Dr. Becker examined him and ordered the November 2003 MRI. On December 18, 2003 the claimant had cervical surgery performed on him by Dr. Gerald Becker and Dr. William Druckemiller. On March 17, 2004 a Form 30C was received by the Commission asserting a repetitive trauma claim for a cervical spine injury. The form represented that the claimant was last injured in mid February 2002. On April 12, 2004 counsel for the claimant filed a hearing request regarding the cervical spine claim.

Various witnesses offered expert opinions concerning the claimant’s cervical myelopathy at the formal hearing for this claim. Dr. Becker opined that claimant’s cervical myelopathy was the result of repetitive trauma over his ten years of employment with Wall Board Systems and Complete Interiors Systems. He believed the injury qualified as an occupational disease. The respondent’s examiner, Dr. Robert Margolis, testified that the C3-4 injury was more than likely due to the repetitive nature of the work activities that claimant had performed for the respondents. He had also opined that while the claimant’s injuries were of a repetitive trauma nature, that they were not an occupational disease. To contest this opinion, the claimant offered additional testimony of Mr. Hank Lerner, a licensed professional counselor and rehabilitation specialist. Mr. Lerner presented various exhibits pertaining to proper drywall installation techniques. He opined that he believed that neck compression is a risk factor in drywall installation.

Based on the foregoing facts, the trial commissioner concluded the claimant had not established that a neck compression injury from dry wall installation rises to the level of an occupational disease. The trial commissioner noted the claimant had treated for a previous cervical injury in 1994 with a diagnosis of positive findings at the C3-4 level. Despite this prior injury, the commissioner found none of the medical experts had reviewed claimant’s medical history prior to opining whether or not claimant’s injury to his cervical spine qualifies as an occupational disease. The commissioner also considered the vocational testimony of Hank Lerner at length, noting he had only dealt with one sheet rock installer with a cervical injury during his years of practice and determining the evidence submitted as to sheet rock installation were not scientific treatises linking cervical compression to the claimant’s occupation. Therefore, the trial commissioner did not find Lerner’s opinions credible as to the claimant’s injury. The commissioner also considered Dr. Becker’s testimony at length, finding he acknowledged that many other tradespeople have cervical conditions similar to the claimant’s and also acknowledged cervical myelopathy is not distinctive of sheet rock installers.

The trial commissioner thus concluded the claimant did not establish that he suffered from an occupational disease and failed to file his Form 30C within one year of sustaining a repetitive trauma injury. Consequently, he dismissed the claim as jurisdictionally barred by § 31-294c C.G.S. The claimant filed a Motion to Correct, which was denied in its entirety. This appeal ensued.

The claimant’s appeal is based upon a single premise: that the holding of Discuillo v. Stone & Webster, 242 Conn. 570 (1997) requires the trial commissioner to reach a specific finding as to whether, for jurisdictional purposes, a repetitive trauma injury “more closely resembles” an accidental injury or an occupational disease. The claimant does not believe the trial commissioner made such a determination and therefore the matter must be remanded for a factual finding on those grounds. We do not agree with this interpretation for a number of reasons. First, based on the facts herein we believe that a fair reading of the Finding and Dismissal would cause one to conclude the trial commissioner has already reached this conclusion in a manner adverse to the claimant. More importantly from an appellate perspective we believe the claimant is proceeding under an untenable interpretation of our statutes which we are obliged to address at this juncture. We cannot find any support for the concept that the occupational disease statute of limitations can be applied so as to save an untimely repetitive trauma claim which is not due to occupational disease.

We note that the interplay between the three forms of recovery available under Chapter 568 has been the focus of much of our recent precedent. As a result, in this opinion we will endeavor to clarify issues which we observe are being addressed with greater frequency before our tribunal. Three appeals in the past few months, Ciarelli v. Hamden, 5098 CRB-3-06-6 (April 1, 2008); Goulbourne v. State/Department of Correction, 5192 CRB-1-07-1 (January 17, 2008) and Chappell v. Pfizer, Inc., 5139 CRB-2-06-10 (November 19, 2007) all have discussed that while repetitive trauma is a type of personal injury defined under § 31-275(16)(A) C.G.S., that “there is not a separate statutory timeline for ‘repetitive trauma.’ ” Chappell, supra. In Chappell we discussed the claim statute (§ 31-294c C.G.S) at some length, which directs our inquiry into the present appeal. The relevant language of this statute reads as follows:

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, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within the two-year period or within one year from the date of death, whichever is later.

The Supreme Court has made clear that the terms of § 31-294c C.G.S. are to be construed in accordance with the “plain language” rule delineated in § 1-2z C.G.S. We cite from the opinion in Harpaz v. Laidlaw Transport, 286 Conn. 102, 109 (2008):

When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .

This statute clearly delineates that a claimant seeking compensation for occupational disease has a longer time period from which to file a claim than had he or she suffered another compensable injury. Support for this standard can be found by following the direction of Harpaz, supra, and reviewing the text of the definitional provisions of §§ 31-275(15) and 31-275(16)(A) C.G.S. of Chapter 568.

(15) “Occupational disease” includes any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such, and includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee in the course of his employment.
(16)(A) “Personal injury” or “injury” includes, in addition to accidental injury that may be definitely located as to the time when and the place where the accident occurred, an injury to an employee that is causally connected with the employee’s employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease. (Emphasis added)

Therefore, the statute clearly places the concept of “occupational disease” as a separate category from an ordinary “personal injury,” which the statute defines as encompassing both a single incident “accidental injury” and injuries which are the result of repetitive trauma. In reaching this conclusion we are not writing on a “clean slate,” Hummel v. Marten Transport, Ltd., 282 Conn. 477, 496 (2007); rather we are reviewing the appellate precedent on which Discuillo, supra, was based upon, as well as appellate precedent applying Discuillo.

The claimant argues that the trial commissioner misread the holding in Discuillo, supra. To determine whether that indeed was the case we believe the actual decision itself must be closely examined to clearly understand the factual and legal underpinnings of the decision.

Peter Discuillo was a painter, employed by the respondent Stone & Webster, who suffered a heart attack on or about November 12, 1982, and who filed his notice of claim on September 24, 1984. He was awarded benefits by the trial commissioner, but on appeal our board concluded a heart attack was an accidental injury and reversed the award due to untimely notice of claim. Discuillo v. Stone & Webster, 14 Conn. Workers’ Comp. Rev. Op. 95, 1935 CRB-2-93-12 (May 19, 1995). The claimant appealed to the Appellate Court arguing that he had suffered a repetitive trauma injury which could not be considered an accidental injury, and arguing that a scienter standard governed the time limitation for filing a claim. In Discuillo v. Stone & Webster, 43 Conn. App. 224, 227 (1996) the Appellate Court rejected these arguments and further suggested that repetitive trauma could never be the basis of an occupational disease claim. The Supreme Court then considered that issue, Discuillo v. Stone & Webster, 242 Conn. 570 (1997), and rendered the opinion which is now the focus of the present appeal.

Mr. Discuillo’s argument before the Supreme Court was that he did not file his claim until he became aware his heart attack was related to his work. He argued that a prior decision of the Compensation Review Division, Boutin v. Industrial Components, 4 Conn. Workers’ Comp. Rev. Op. 19, 237 CRD-6-83 (March 3, 1987), should govern his claim and that a scienter requirement existed for repetitive trauma claims. Id., 575-576. The Supreme Court rejected this argument, since they believed the claim must fall within the jurisdictional limitation of § 31-294c C.G.S. In rejecting the claimant’s argument that a scienter requirement existed for repetitive trauma cases unrelated to occupational disease claims, the Supreme Court relied on its reasoning in Gavigan v. Visiting Nurses Asso., 125 Conn. 290 (1939) that such claims had to be filed within one year of the actual date of injury, Discuillo, supra, 582-583.2

In reaching this conclusion the Supreme Court also clarified the lower court opinion which implied that all repetitive traumas must be considered “accidental injuries.” In an effort to resolve this issue the Court used the term “resemble” to classify whether a repetitive trauma claim should be afforded the benefit of the occupational disease time limitations under § 31-294c C.G.S.

In this regard, we first note that the plaintiff’s heart attack does not closely resemble an “occupational disease.” The term “occupational disease” is specifically defined in § 31-275(11) as including “any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such . . . .” Discuillo, supra, 578.
In conjunction with our conclusion that the plaintiff’s heart attack, even if stemming from repetitive trauma, does not resemble an occupational disease, we also conclude that the plaintiff’s particular claim does resemble an accidental injury. Id., 580.
We thus conclude that labeling the plaintiff’s heart attack as an accidental injury for jurisdictional purposes is appropriate under the facts of this case, because, of the two choices available under § 31-294, the plaintiff’s heart attack more closely resembles an accidental injury than an occupational disease. Id. (Emphasis added).3

After considering the background of this decision, we believe the use of the term “resemble” herein should be construed solely as an effort by the Supreme Court to reconcile the Appellate Court’s dicta that a repetitive trauma injury must automatically be deemed an accidental injury. The actual substance of the Discuillo decision was completely unsupportive of the claimant’s argument in the present case. The Supreme Court pointed out in Discuillo that under an evaluation of the factors underpinning an occupational disease claim that the claimant failed in his evidentiary burden to prove that heart attacks were a peculiar risk in the painting profession. Id., 578-580. The Supreme Court cited Gavigan, supra, for the concept that well over a half century of legislative acquiescence ratified the court’s interpretation that scienter only acted to toll occupational disease claims. Id., 581-583. The Court also held “we do not think it is unreasonable to conclude that for the purposes of § 31-294, a series of repetitive workplace traumas can have the unintended result of causing an ‘accidental’ injury to an employee.” Id., 580.

Having considered the legal reasoning in Discuillo, supra, and the “plain meaning” of § 31-294c C.G.S., were we to adopt the position that a repetitive trauma claim could be brought years after the accident which caused the personal injury, we would by implication cause much of the statute governing occupational disease to be rendered superfluous, as one could obtain benefits without the burden of compliance with the evidentiary standards of § 31-275(15) C.G.S.4 We cannot presume the General Assembly intended to grant claimants who did not have an occupational disease the same jurisdictional time limitations to bring their claims, and we do not find Discuillo stands for this proposition.5

Since the actual result of Discuillo is inconsistent with offering relief to the claimant in this instance, he focuses on a footnote from the decision. He cites footnote 10 in his brief;

We emphasize that our characterization of the plaintiff’s injury is based upon the specific facts of this particular case. We therefore disagree with the Appellate Court to the extent that it suggested that repetitive trauma injuries must automatically be treated as accidental injuries for purposes of § 31-294. Discuillo v. Stone & Webster, supra, 43 Conn. App. 226-27. We also disavow any implication that might be drawn from Crochiere v. Board of Education, supra, 227 Conn. 354, to that effect. 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. Likewise, we do not decide that all heart attacks derived from repetitive trauma must be considered accidental for purposes of § 31-294, but we leave open the question of what factual predicate, if any, would compel a different conclusion.

We do not share the claimant’s opinion regarding the scope of this clarification. Since Discuillo was decided we have affirmed occupational disease claims based on long term exposure to a toxin. See Chappell, supra.6 Our decision in Chappell clearly delineates what type of evidence a claimant must present to satisfy a trial commissioner that his repetitive trauma injury rises to the level of an occupational disease. The claimant failed to satisfy the trial commissioner in this case, and even if we were to extend the broadest possible jurisdictional net, the facts found by the trial commissioner indicate that he had determined that the claimant’s injury lacked any similarity to an occupational disease.

While the claimant asserts “a fact specific comparison analysis was never undertaken by the trial commissioner,” actually the trial commissioner made a thorough finding of the facts and reached reasonable conclusions based on those facts. Collectively they constitute a rejection of claimant’s evidence.7

Based on the facts in the record, and the conclusions reached based on those facts the claimant’s position that the trial commissioner would reach a determination following a remand that his injuries “resembled” an occupational disease claim is untenable. “. . . , we may disturb the legal conclusions of the trial commissioner only if they result from an incorrect application of the law to the facts found, or from an inference unreasonably or illegally drawn from those facts.” Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002), citing Fair v. People’s Savings Bank, 207 Conn. 535 (1988). We can find no permissible inference in the claimant’s favor from the facts found herein even were we to apply the legal standard he suggests for which Discuillo stands. The relief he seeks—a remand to determine whether his injury “resembles an occupational disease”—would be an exercise in futility as we can find no facts on the record found by the trial commissioner that would justify such a determination. Moreover, the trial commissioner’s ruling on the claimant’s Motion to Correct, which sought to substitute findings of fact supportive of jurisdiction, was a de facto ruling on the same issues the claimant seeks to have considered on remand.

Notwithstanding that a remand would effect no substantive change in the outcome of this case; the claimant argues that the holding in Discuillo demands such a remand occur. We are not persuaded for two reasons. First, we believe such an argument is akin to the “magic words” standard rejected by the Supreme Court in Struckman v. Burns, 205 Conn. 542 (1987); we can infer from the denial of the claimant’s Motion to Correct the trial commissioner did not find the claimant’s injury “resembled” an occupational disease. Secondly, we cannot find support for requiring a remand from decisions of this panel or the appellate courts applying Discuillo, which have not applied this case in the manner which the claimant asserts was binding precedent.

We find the last time the concept of “resembling an occupational injury” was used in an appellate decision was in Dorsey v. United Technologies Corp., 47 Conn. App. 810 (1998).8 Dorsey was remanded to the Appellate Court from the Supreme Court in the immediate wake of Discuillo. The previous Appellate Court opinion, Dorsey v. United Technologies, 45 Conn. App. 707 (1997), had failed to consider the possible application of an occupational disease standard to the facts of the case, and had relied on the Appellate Court’s Discuillo v. Stone & Webster, 43 Conn. App. 224 (1996) decision which had implied all repetitive trauma claims automatically had the accidental injury statute of limitations. On remand, however, the Appellate Court concluded “the plaintiff’s hearing loss was not found to be a ‘natural incident’ of his occupation . . . ”, Dorsey, supra, 812, and therefore, they did not resemble an occupational disease. We note for the record that the claimant points to not one decision since Discuillo where a claimant received the relief he asserts was required under the terms of that decision—obtaining the longer jurisdictional standard to file a claim despite failing to prove an occupational disease.

Two years later the Supreme Court again discussed the issue of repetitive trauma injuries at great length in Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596 (2000). Russell turned on the adequacy of a notice of claim and the effectiveness of a disclaimer, and the Court discussed Discuillo in detail:

[w]e begin by noting again that repetitive trauma injuries are defined by the act as injuries that are the “direct result of repetitive trauma or repetitive acts incident to . . . employment. . . .” General Statutes § 31-275(16)(A). In contrast, accidental injuries are those injuries that “may be definitely located as to the time when and the place where the accident occurred . . . . “General Statutes § 31-275 (16)(A). Therefore, as both the board and our courts have recognized, “the process of injury from a repetitive trauma is ongoing until [the last date of exposure].”

Id., 612-613.

There is no mention in Russell of whether the commissioner should have undertaken to determine whether the claim herein “resembled” an occupational disease; although given the facts of that case such a finding could have been beneficial to the claimant.

The next year this Board decided Maginnis v. U.S. Airways, 4116 CRB-1-99-8 (February 21, 2001), appeal dismissed, A.C. 21666 (March 28, 2001). Maginnis is directly on point with this case as the claimant made an identical legal argument concerning Discuillo which we rejected. We did so as the trial commissioner had made a factual finding adverse to the claimant similar to the findings in the present case.

The claimant also makes a more complex legal argument, specifically that under Discuillo, supra, the trial commissioner was required to make a factual determination as to whether the repetitive trauma injury (hearing loss) for jurisdictional purposes should be deemed to fit into either the “accidental injury” or the “occupational disease” category in § 31-294c. It should be noted that in Discuillo, the court did stress that repetitive trauma injuries are not automatically categorized as “accidental injuries” rather than “occupational diseases” for purposes of determining jurisdiction under § 31-294c, and that the trial commissioner should make a factual determination as to whether a repetitive trauma injury should be treated as an occupational disease for jurisdictional purposes. Id., 580 fn. 10. In the instant case, the trial commissioner did precisely that when he considered the evidence presented by the claimant that his hearing loss should be deemed to be an occupational disease, and was not persuaded. As that determination is supported by the record and did not result from an incorrect application of the law to the subordinate facts or from an illegal inference, we cannot disturb that determination. Fair, supra. Id.9

Finally, two years later in Malchik v. Division of Criminal Justice, 266 Conn. 728 (2003), the Supreme Court considered the very issue we now consider herein—whether the occupational disease standard could be applied to save a repetitive trauma claim which was untimely under the § 31-294c C.G.S. requirements for accidental injury. The court cited Discuillo as governing this case, but did not use the term “resembles an occupational disease.” Malchik, supra, 735-737. Instead, the court upheld the trial commissioner who had determined “the plaintiff offered ‘no credible evidence’ tying coronary artery disease to his occupation.” Id. In Malchik, the test applied was not whether a claim could jurisdictionally qualify as an “occupational disease” while not meeting the legal standards for an award. Instead, the Court applied a single test as to whether the claimant established a claim under § 31-275(15) C.G.S. Since Mr. Malchik’s coronary disease was not peculiar to criminal investigators, he was not permitted to avail himself of the longer time period to file his claim as if he had an occupational disease. To the extent the dicta in Discuillo may suggest otherwise, we believe Malchik confirms that there is no bifurcation between the notice aspects of a claim for occupational disease and the substantive requirements for such a claim. Mr. Malchik and Mr. Veilleux both failed to convince the trier of fact they sustained an occupational disease. We find no reason to treat their cases dissimilarly.

The holding in Malchik is consistent with another concept relied upon by the Supreme Court in Harpaz, supra. “We are obligated to search for a construction of the statute that makes a harmonious whole of its constituent parts.” Id., 130. To allow a claimant the benefit of the longer jurisdictional period to file, based solely on the appearance of his claim, would be in disharmony with the statutory requirements under § 31-275(15) C.G.S. which requires a claimant to advance substantive proof he or she qualifies for the longer time period. The Supreme Court’s holding in Hanson v. Transportation General, Inc., 245 Conn. 613 (1998) clearly directs us not to intercede under these circumstances. “Because of the statutory nature of our workers’ compensation system, policy determinations as to what injuries are compensable and what jurisdictional limitations apply thereto are for the legislature, not the judiciary or the board, to make.” Id., 618.

In conclusion, the “plain meaning” of the relevant statutes does not provide for a bifurcation between the jurisdictional notice requirements for an occupational disease claim and the evidentiary standards for such a claim. The facts found by the trial commissioner in this case were completely unsupportive of the argument that the claimant’s injuries were an occupational disease and the commissioner rejected the relief sought by the claimant when he denied his Motion to Correct.10 The appellate precedent governing these issues does not compel the relief the claimant seeks. For those foregoing reasons we affirm the trial commissioner and dismiss this appeal.

Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.

1 A Form 30C for the low back injury was received by the Commission on January 22, 2003. A Stipulation and a Voluntary Agreement for the claimant’s low back injury were approved by the Commission in 2004. BACK TO TEXT

2 In Gavigan v. Visiting Nurses Asso., 125 Conn. 290, 292 (1939), Chief Justice Maltbie interpreted the notice statute and held,

If the word “accident” in itself could be taken to refer to the time when an injury became compensable, the modifying clause “which caused the personal injury” would be meaningless; and the limitation requiring notice in the case of an occupational disease to be given within one year from the “first manifestation of a symptom of the occupational disease” would be entirely out of harmony with the provision concerning injuries due to accident if the “date of the accident” were to be given the meaning claimed by the plaintiff.” BACK TO TEXT

3 We note that the Discuillo v. Stone & Webster, 242 Conn. 570 (1997) decision predates the enactment of § 1-2z C.G.S. The General Assembly has subsequently enacted a “plain meaning” rule with regard to legislative interpretation. The relevant statute, § 31-294c does not call for the sort of determination by a trial commissioner demanded by the claimant. As we describe in greater detail, unlike Hummel v. Marten Transport, Ltd., 282 Conn. 477, 495-501 (2007), the issue has not been the subject of further appellate decisions which could be deemed to overcome the enactment of § 1-2z C.G.S. BACK TO TEXT

4 Therefore, we respectfully reject the argument that the trial commissioner’s decision herein “essentially eviscerates the holding in Discuillo.” Claimant’s Brief, p. 6. To the contrary, we believe the claimant’s interpretation of Discuillo, would essentially renounce that opinion’s rejection of the scienter standard promulgated in Boutin v. Industrial Components, 4 Conn. Workers’ Comp. Rev. Op 19, 237 CRD-6-83 (March 3, 1987). BACK TO TEXT

5 “Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject . . . is significant to show a different intention existed. . . .” Hatt v. Burlington Coat Factory, 263 Conn. 279, 310 (2003). BACK TO TEXT

6 We also believe that the decision in Estate of Doe v. Department of Correction, 268 Conn. 753 (2004) suggests that a single accidental injury, such as a needle stick, could potentially be sufficient to establish an occupational disease claim. This would be in some sense a more expansive view of potential jurisdictional eligibility for occupational disease claims than Discuillo, supra, which we interpret as correcting a misstatement in the previous Appellate Court opinion suggesting that repetitive trauma could never be the basis of an occupational disease claim. Given the Supreme Court corrected this misstatement on appeal while upholding the substantive result, we do not believe the Supreme Court’s decision was “superfluous” as to how we have applied it to the instant appeal. BACK TO TEXT

7 The relevant findings of fact and conclusions in the May 3, 2007 Finding and Dismissal are as follows:

52. Mr. Lerner acknowledged that no Connecticut studies or scientific information was found by him in his Internet search involving drywall ceiling installers.

53. With regard to Claimant’s Exhibit L, Mr. Lerner acknowledged that no statistical studies existed as to an accurate number of neck injuries sustained by drywall installers (Tr. 3/21/06 pg. 31 line 1-line 14).

54. Mr. Lerner acknowledged that he had dealt with only one client in all of his years of vocational rehabilitation work who installed sheet rock ceilings and worked with drywall.

55. Mr. Lerner further acknowledged that Claimant’s Exhibit L was only a preliminary analysis with no updated studies found by the authors of Claimant’s Exhibit L.

56. Mr. Lerner acknowledged that he found Claimant’s Exhibit L in an online search and that notwithstanding that 187,000 drywall installers work in the United States, only 26 were interviewed by the questioner.

57. Mr. Lerner further acknowledged that the questions underlying the basis for Claimant’s Exhibit L only dealt with subjective pain of those questioned, not any treatment modalities and that, in fact, further study of Claimant’s Exhibit L was primarily based on a task analysis done by video tape with no scientific documentation of injuries claimed or actually sustained.

58. Mr. Lerner also acknowledged that Claimant’s Exhibit L was not limited to cervical injury but discusses risk factors to many other body parts.

59. Mr. Lerner did acknowledge that Claimant’s Exhibit L was filed as a preliminary analysis with no indication that a final conclusory report was ever completed or print or requested by the originating parties, i.e. AFL-CIO and the building industry.

H. Mr. Lerner relied upon Claimant’s Exhibit K, which was supplied by claimant’s counsel.

I. Mr. Lerner acknowledged having only one sheet rock installer with a cervical injury in his many years of practice as a vocational rehab specialist.

J. I find Claimant’s Exhibit K not to be a scientific treatise on cervical compression injuries but rather only a reference with regard to the proper techniques for handling sheet rock by those in the trade.

K. I further find Claimant’s Exhibit L not to be a scientific treatise establishing cervical compression in sheet rockers but rather a reference to pain complaints by a very small number of sheet rockers and tradesman in the sheet rock industry who were questioned involving injuries to various body parts with the highest percentage of pain complaints involving the elbow, forearm, low back and the smallest percentage of complaints involving neck pain.

L. I find Mr. Hank Lerner’s opinion and conclusion regarding Mr. Veilleux’s cervical injury as due to his work and therefore an occupational disease not to be credible.

N. Dr. Becker acknowledged cervical myelopathy is not distinctive of sheet rock installers (Cl. Exh. D depo Dr. Becker pg. 31 ln. 1-21).

O. I find that the claimant has not submitted any definitive scientific or medical studies regarding the number of cervical injuries sustained by sheet rock installers that would permit a conclusion that such work and possible risk factors result in medical claim(s) for cervical injuries thereby warranting a finding that such injuries and risk factors justify a finding that claimant’s cervical injury is so unique that it should qualify as an occupational disease claim. BACK TO TEXT

8 This board’s opinion in Dorsey v. UTC/Norden Systems, 15 Conn. Workers’ Comp. Rev. Op. 447, 2268 CRB-7-95-1 (September 6, 1996) reversed the decision in Boutin, supra, applying a scienter standard to repetitive trauma claims. BACK TO TEXT

9 We believe we must extend stare decisis to the Maginnis v. U.S. Airways, 4116 CRB-1-99-8 (February 21, 2001) decision. “Stare decisis, although not an end in itself, serves the important function of preserving stability and certainty in the law. Accordingly, ‘a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. Maltbie, Conn. App. Proc., p. 226.’ Herald Publishing Co. v. Bill, 142 Conn. 53, 62 (1955).” Buser v. G.R. Cummings Co., 4963 CRB-5-05-6 (June 8, 2006) citing Mitchell v. J.B. Retail Inventory Specialists, 3458 CRB-2-96-10 (March 31, 1998). BACK TO TEXT

10 The claimant asserts error from the trial commissioner’s denial of its Motion to Correct. Since the Motion to Correct essentially sought to interpose the claimant’s conclusions as to the facts presented, we find no error. See Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). BACK TO TEXT

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