State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Palmieri v. Simkins Industries, Inc.

CASE NO. 5694 CRB-3-11-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 10, 2012

PASQUALE PALMIERI

CLAIMANT-APPELLEE

v.

SIMKINS INDUSTRIES, INC.

EMPLOYER

and

ACE USA

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Christopher D. DePalma, Esq., Kennedy, Johnson, D’Elia & Gillooly, LLC, 555 Long Wharf Drive, New Haven, CT 06511.

The respondents were represented by James D. Moran, Jr., Esq., Williams Moran, LLC, 268 Post Road, PO Box 550, Fairfield, CT 06824.

This Petition for Review1 from the October 24, 2011 Finding and Decision of the Commissioner acting for the Fifth District was heard March 23, 2012 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jodi Murray Gregg and Daniel E. Dilzer.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents in this matter appealed from a Finding and Decision awarding the claimant benefits for hearing loss sustained in the workplace. The respondents claim that as the claimant’s exposure to injurious noise ended more than one year prior to filing his claim for benefits, the claim is time-barred. The claimant argues the evidence credited by the trial commissioner was that the claimant continued to be exposed to injurious noise up to a point within one year of filing his claim. We have reviewed the applicable precedent governing repetitive trauma claims. We conclude we must defer to the trial commissioner’s assessment of the evidence herein. We affirm the Finding and Decision.

The trial commissioner reached the following factual findings. The claimant was employed by the respondent-employer as a pipefitter from March 1996 to August 2007. He testified that the noise at the facility, which was a paper mill, was extremely loud. The claimant underwent annual hearing tests as a result of his employment with the respondent, and he testified he began noticing hearing problems while employed there. The claimant testified that he participated in the breaking down of the factory in 2005, 2006 and 2007 with the use of power tools, and that the power tools he used were noisy.

The claimant sought treatment with Dr. David Astrachan on January 21, 2009. Dr. Astrachan issued a report on February 12, 2009, which stated the claimant reached maximum medical improvement with a binaural hearing loss of 1.3 percent. On May 14, 2009, Dr. Astrachan provided an opinion to respondent’s counsel which opined that the claimant’s entire employment history at Simkins Industries was a substantial factor in his hearing loss.

The respondents had their expert, Dr. Julian Henley, review the medical records and other relevant documents. He testified via deposition, and testified that he disagreed with Dr. Astrachan on the cause of the claimant’s hearing loss. Dr. Henley opined the claimant’s employment was not a substantial factor in the claimant’s hearing loss.

Based on this evidence, the trial commissioner found the claimant’s testimony to be fully credible and persuasive. The commissioner found the claim for bilateral hearing loss to be a compensable repetitive trauma injury. The commissioner found Dr. Astrachan’s opinions fully credible and persuasive, and did not find Dr. Henley fully credible and persuasive. As the claimant testified that he used loud and noisy power tools while employed for the duration of his employment at Simkins, the commissioner found the claimant was exposed to loud noises for the duration of his employment at Simkins. The commissioner ordered the respondents to pay all benefits attributed to the work-related hearing loss.

The respondents filed a Motion to Correct which was denied in its entirety. The gravamen of the Motion to Correct was to replace the finding as to compensability with a finding that the claimant ceased to be exposed to injurious noise after 2005, and therefore the claim was untimely when it was filed on June 27, 2008.2 3 The respondents pursued this appeal and their argument rests solely on the argument that their Motion to Correct should have been granted. They argue this Finding and Decision is at odds with the standard in DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 294 Conn. 132 (2009), as to the quantum of evidence which must be presented to support causation.

We note that on appeal we must provide deference to the factual determinations of the trial commissioner. In Anderson v. Target Capital Partners, 5615 CRB-6-10-12 (January 3, 2012), we pointed out what our precedent has held when considering such questions, citing Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008) and Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010), aff’d, 126 Conn. App. 902 (2011) (Per Curiam), where this tribunal held as follows:

When a party files a Motion to Correct this is an effort to bring factual evidence to the trial commissioner’s attention in an effort to obtain a Finding that is consistent with such facts. When a trial commissioner denies such a motion, we may properly infer that the commissioner did not find the evidence submitted probative or credible. Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008). On appeal, our inquiry is limited to ascertaining if this decision was arbitrary or capricious. Id. The leading case on this point is Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003).

We have found in some cases that a trial commissioner erred in denying a Motion to Correct because the trial commissioner reached an erroneous decision on an application of law. We reached that decision in a case involving a repetitive trauma injury and an issue concerning whether the claim was time-barred due to an allegedly late filing. We believe our analysis in Volta v. United Parcel Service, 5612 CRB-7-10-12 (January 31, 2012) may be illuminating on the issues at hand.

In Volta, the claimant filed a repetitive trauma claim and the respondents failed to file a timely disclaimer. The claimant filed a Motion to Preclude. After reviewing the factual evidence, the trial commissioner concluded that the claimant’s injurious exposure had ended more than one year prior to his claim having been filed and “the notice of claim filed in 2008 was untimely and therefore deprived the Workers’ Compensation Commission of subject matter jurisdiction. The trial commissioner denied the claimant’s Motion to Preclude and dismissed the repetitive trauma claim.” Id. The claimant filed a Motion to Correct asserting error in the initial decision, but the trial commissioner denied that motion.

On appeal the claimant argued that the trial commissioner should not have considered jurisdictional issues in what was essentially a defense challenging causation. We pointed out that since Menzies v. Fisher, 165 Conn. 338 (1973), our law has stood for the proposition that a Motion to Preclude could not “trump” a challenge to subject matter jurisdiction. We continued our analysis, however, based on the specific challenges in asserting a nonclaim defense to a repetitive trauma injury, focusing on the precedent in Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596 (2000). The Russell court stated,

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. Consequently, our determination of when the statute of limitations begins to run for certain types of repetitive trauma injuries is irrelevant to a determination of whether the plaintiff’ notice of claim complied with § 31-294c (a). (Emphasis added.)

Id., 616.

Finding that the claimant’s notice adequately described an injury compensable under Chapter 568; we concluded the decisions in Donahue v. Veridiem, Inc., 291 Conn. 537 (2009) and Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102 (2008) required this tribunal to vacate the trial commissioner’s decision that the claim was jurisdictionally invalid. We directed that if the respondents did not accept compensability “this matter must be set down for further proceedings in order to provide the claimant the opportunity to establish a prima facie claim of compensability subject to the limitations set forth in Harpaz, supra, and Donahue, supra.” Volta, supra.

In the present case, unlike Volta, the respondents filed a timely disclaimer and there was no Motion to Preclude. Nonetheless, our analysis in Volta outlined the long precedent from cases such as Russell, supra, and Borent v. State, 33 Conn. App. 495, (1994). We find that Borent continues to be the touchstone case as to the timeliness of claims filed for repetitive trauma injuries. In Borent, a case decided long before Harpaz and Donahue elevated the impact of a Motion to Preclude, the trial commissioner found that the last date of exposure for workplace hearing loss was not consistent with the last day of employment. The commissioner found the claim time-barred. On appeal, this tribunal concluded the evidence presented supported a finding that the claimant continued to be exposed to repetitive trauma until his final day of employment. Borent, supra, 497-498. “[W]here the injury claimed, as in many hearing loss cases, results from repetitive trauma we have held the date of injury to be the last date of exposure to the incidents of repetitive trauma, i.e., the last day worked.” Id., 498. Given the similarity to the underlying injuries in both claims, we find Borent offers relevant guidance in this matter.

We more recently revisited the issue of the timeliness of a repetitive trauma claim in Goulbourne v. State/Department of Correction, 5192 CRB-1-07-1 (January 17, 2008). In Goulbourne, the trial commissioner found the claim for benefits for work-related hypertension untimely under a single date of injury theory of recovery and we remanded the matter for consideration of whether the claimant filed a timely claim for a repetitive trauma injury. We cited Discuillo v. Stone and Webster, 242 Conn. 570 (1997), as it concluded “[t]he last day of exposure to the relevant trauma is a logical choice” for determining when the time limitations to file a claim commence. Id., 581, fn. 11. We noted that in Discuillo, the Supreme Court indicated that a “last day of exposure” standard governed over concepts such as scienter for claims filed for repetitive trauma. Goulbourne, supra.4

The trial commissioner in the present case concluded that the claimant “was subjected to loud noises while employed for the duration of his employment with the Respondent.” Conclusion, ¶ 4. He based this conclusion on finding the claimant’s testimony credible “that he used loud and noisy power tools to break down the Respondent’s factory in 2005, 2006, and 2007.” Conclusion, ¶ 3. He also relied on the opinions of Dr. Astrachan, whom he found “fully credible and persuasive.” Conclusion, ¶ 5. We must review the record to ascertain if these conclusions are supported by probative evidence and are consistent with the law. Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007).

The claimant testified that his hearing problem got worse each year. May 11, 2010 Transcript, p. 7. He testified that after the machinery at the respondent’s plant was shut down he was among a crew of people who used power tools to take apart the facility. Id., p. 18. The claimant testified that these tools were air powered, gas powered and electric powered and the tools were noisy. Id., p. 27. The claimant did testify the workplace was less noisy after the plant’s machinery was shut down. Id., p. 28. The claimant also testified that he did not use hearing protection on a regular basis while employed at Simkins. January 4, 2010 Transcript, p. 19.

Dr. Astrachan’s evidence included an initial January 21, 2009 examination report wherein he diagnosed the claimant with “bilateral mild-to-severe, mid-to-high frequency sensorineural hearing loss.” Claimant’s Exhibit C. This report also referenced the claimant’s exposure to noise while employed at Simkins. On February 12, 2009, Dr. Astrachan opined that “I do believe that his hearing loss was causally related to factory noise during his employment at Simkins. . . .” Id. Dr. Astrachan further opined on May 14, 2009, as to the claimant’s hearing loss that “I do believe that his entire employment history at Simkins Industries to be a substantial contributing factor in his hearing loss.” Id.

The respondents challenge this evidence by asserting it does not meet the evidentiary standard needed to prove causation pursuant to DiNuzzo, supra. They argue that as the claimant said he had not provided audiograms to Dr. Astrachan and these audiograms were said to document stable hearing loss; that therefore “Dr. Astrachan’s causation opinion was premised upon incomplete information . . . .” and should not have been credited over Dr. Henley’s contrary opinion. Respondent’s Brief, p. 8. We disagree with this reasoning. First, we note the respondents decided not to depose Dr. Astrachan. As a result, his reports must be considered “as is” and are entitled to the weight placed on them by the trial commissioner. Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). We generally defer to the trial commissioner’s judgment in “dueling expert” cases, Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006); and the commissioner found Dr. Astrachan more persuasive and credible.

In addition, we find DiNuzzo, supra, sufficiently distinguishable from the present case so as to not find the respondent’s arguments persuasive. DiNuzzo was a case where the claimant’s surviving spouse was seeking § 31-306 C.G.S. benefits. In that case the respondent deposed the claimant’s treating physician and he admitted that he had not performed an autopsy, and without an autopsy there was no way of knowing the exact cause of the decedent’s death. The Supreme Court concluded “the plaintiff produced no evidence linking the decedent’s death to a heart attack.” Id., 144. As a result, the court concluded the claim lacked a sufficient evidentiary foundation to be upheld, and upheld the Appellate Court’s determination that the medical evidence herein was grounded in “conjecture, speculation or surmise.” Id., 136-137.

We noted in Buonafede v. UTC/Pratt & Whitney, 5499 CRB-8-09-9 (September 1, 2010), however, that the DiNuzzo precedent had been clarified in Marandino v. Prometheus Pharmacy, 294 Conn. 564 (2010). In Marandino, the Supreme Court held it was a trial commissioner’s prerogative to “consider medical evidence along with all other evidence to determine whether an injury is related to the employment.” Marandino, supra, at 595. (Emphasis in original.) In reviewing the facts of this case, we find them congruent with the facts in Buonafede, supra. The treating physician relied on the narrative of the claimant (whom the trial commissioner found credible) to find the claimant’s injury was caused by her employment. We also note that in Buonafede, as well as this case, the claimant’s expert witness was not deposed.

The trial commissioner in this case needed to reach a conclusion that the claimant continued to be exposed to injurious noise up to the point in which he ceased working for Simkins in order to find the claim to be timely. He did so in reliance on the claimant’s testimony that he used loud power tools until he left Simkins and on the opinion of Dr. Astrachan. While the respondents presented evidence challenging this conclusion, the trial commissioner did not find it persuasive. “[I]t is the trial commissioner’s function to assess the weight and credibility of medical reports and testimony. . . .” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999).

We affirmed similar factual findings in a previous case where the respondents asserted a nonclaim defense to a claim of hearing loss due to repetitive trauma in Campbell v. Manchester Memorial Hospital, 13 Conn. Workers’ Comp. Rev. Op. 157, 1754 CRB-1-93-6 (March 8, 1995); where we upheld the commissioner’s factual determination that the claimant faced exposure until she stopped working for the respondent. We also note that in a recent Compensation Review Board case on § 31-299b C.G.S. apportionment, Dinneen v. Acands, Inc., 5664 CRB-3-11-7 (July 3, 2012), we noted that even when causation of a claimant’s injury occurred early in his or her work history, he or she may continue to be subject to injurious exposure at a later point in their career.

In Dineen, supra, we concluded there was sufficient evidence that the claimant’s work at the appellant’s firm constituted “substantial exposure” to asbestos when he testified to spending a significant amount of time near machines using asbestos. We cited Brooks v. Electric Boat Corporation, 5485 CRB-1-09-8 (August 9, 2010), aff’d, 133 Conn. App. 377 (2012) and Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008), that the factual determination as to what constitutes “substantial exposure” is a matter for the trial commissioner to decide. Id. In the present case the trial commissioner credited the claimant’s testimony that his use of power tools exposed him to injurious noise and a medical expert who opined the entire time the claimant was employed by Simkins contributed to his injury. We find the trial commissioner could reasonably conclude this claim was brought in a timely fashion and that this conclusion is in accordance with our precedent.

We affirm the Finding and Decision.

Commissioners Jodi Murray Gregg and Daniel E. Dilzer concur in this opinion.

1 We note that motions for extension of time were granted during the pendency of this appeal. BACK TO TEXT

2 The applicable statute herein is § 31-294c (a) C.G.S., which states:

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. Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, or the date of the first manifestation of a symptom of the occupational disease and the nature of the disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. An employee of the state shall send a copy of the notice to the Commissioner of Administrative Services. As used in this section, “manifestation of a symptom” means manifestation to an employee claiming compensation, or to some other person standing in such relation to him that the knowledge of the person would be imputed to him, in a manner that is or should be recognized by him as symptomatic of the occupational disease for which compensation is claimed. BACK TO TEXT

3 The Form 30C asserted a last date of injury of August 17, 2007. BACK TO TEXT

4 We do note that Discuillo v. Stone and Webster, 242 Conn. 570 (1997) and Knapp v. New London, 44 Conn. App. 465 (1997) rejected a “last day of employment” standard as automatically governing the timeliness of a repetitive trauma claim. Goulbourne v. State/Department of Correction, 5192 CRB-1-07-1 (January 17, 2008) stands for the premise that a claimant must provide evidence to the trial commissioner of the last date of exposure to a repetitive trauma in order to establish such a claim was filed in a timely fashion pursuant to § 31-294c C.G.S. BACK TO TEXT

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