Seymour v. Charles A. Bleich, D.D.S.

The claimant was represented by Ross Lessack, Esq. and Paul S. Ranando, Esq., Law Offices of Edward T. Dodd, Jr., 182 Grand Street, Waterbury, CT 06702.

The respondents were represented by Debra S. Dee, Esq., Rosenbaum & Brennan, 655 Winding Brook Drive, P.O. Box 695, Glastonbury, CT 06033.

This Petition for Review from the July 28, 1992 Finding and Award of Motion to Preclude of the Commissioner for the Sixth District was heard March 26, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The respondents seek review of the decision of the Sixth District Commissioner granting the claimant’s Motion to Preclude. Although their notice to contest liability was not timely filed, the respondents argue that the decision should be reversed because (1) the commissioner’s finding failed to specify a particular date of injury to enable the respondents to assert the statute of non-claim and (2) the claimant was not an employee of the respondent-employer at the time her notice of claim was served on the respondents. We affirm the trial commissioner.

The claimant’s notice of claim alleged, and the trial commissioner found, that between January 2 and June 30, 1989, the claimant sustained an injury to her low back as a result of repetitive trauma during the course of her employment with the respondent-employer. The respondents challenge the commissioner’s failure to find a specific date of injury. They argue that the commissioner should have made a finding as to the date the claimant knew or should have known her disability or condition was the result of her employment in order to ascertain when the limitation period provided in General Statutes (Rev. to 1989) Sec. 31-294 began to run. See Campbell v. Manchester Memorial Hospital, 10 Conn. Workers’ Comp. Rev. Op. 151, 1182 CRD-5-91-2 (1992); Edmounds v. Machlett Laboratories, 9 Conn. Workers’ Comp. Rev. Op. 241, 1119 CRD-7-90-10 (1991).

Such a finding, however, is not necessary in this case. In Borent v. State of Connecticut, 10 Conn. Workers’ Comp. Rev. Op. 219, 1302 CRD-2-91-9 (1991), aff’d, 33 Conn. App. 495 (1994), the employer presented evidence that it had paid medical bills for the claimant’s repetitive trauma injury more than one year before his notice of claim and argued that preclusion must be denied since the claimant’s notice was not given within the one year limit set forth in Sec. 31-294. See Pelletier v. Caron Pipe Jacking, 13 Conn. App. 276, cert. denied, 207 Conn. 805 (1988). We concluded, however, that “[i]n instances where the injury claimed . . . results from repetitive trauma we have held the date of injury to be the last day of exposure to the incidents of repetitive trauma, i.e., the last day worked . . . . The claimant continued to work after the 1987 medical treatment for hearing loss. As he alleges, he was working August 2, 1988. On its face therefore the October 13, 1988 notice of claim for an August 2, 1988 injury is within the year statute of limitation period of Sec. 31-294. Pelletier . . . is not applicable, and the commissioner had jurisdiction over the subject matter to act on claimant’s motion for preclusion.” (Citations omitted.) Borent v. State of Connecticut, supra, 220.

Borent is dispositive of the respondent’s claim on appeal. Here, the January, 1990 notice of claim for a repetitive trauma injury alleged to have occurred from January 2 to June 30, 1989, the latter date being the last day the claimant worked for the respondent-employer, is sufficient on its face to permit the commissioner to grant the Motion to Preclude. Where a notice of claim for compensation facially complies with the jurisdictional element in the Sec. 31-294 time limitation, the commissioner is not required to make the finding sought by the respondents in the context of the proceedings on the claimant’s Motion to Preclude. See Pickard v. Manchester Gardens Condominium Ass’n., 10 Conn. Workers’ Comp. Rev. Op. 216, 217, 1331 CRD-1-91-9 (1992), citing Wagner v. Texaco Refining & Marketing Inc., 7 Conn. Workers’ Comp. Rev. Op. 14, 637 CRD-1-87 (1989); see also Dorsett v. General Dynamics Corp., 8 Conn. Workers’ Comp. Rev. Op. 77, 805 CRD-2-88-12, aff’d, 23 Conn. App. 827 (1990), cert. denied, 218 Conn. 901 (1991).

The respondents’ reliance on cases holding that the statute of limitations runs from the date an employee knew or should have known that her disability or condition was the result of employment, is misplaced. This doctrine is the workers’ compensation analogue to the “discovery rule” for the running of the statute of limitations in tort actions. The discovery doctrine developed in tort actions to delay the running of the statute of limitations where the connection between a defendant’s conduct and the actionable injury does not become obvious until some time after the conduct complained of has occurred. See 4 F. Harper, F. James & O. Gray, The Law of Torts (4th ed.), p. 487. Our Appellate Court has recently made clear in Borent v. State, 33 Conn. App. 495 (1994), that a workers’ compensation claim of injury due to repetitive trauma is timely, as a matter of law, if it is made within one year of the date of last exposure, usually the last date of employment, regardless of when the claimant knew of the causal connection between the injury and work. The Borent court addressed the date of injury by looking to the date of last employment alone; it did not give any weight to a date of knowledge (discovery) which preceded the last date of employment.

The respondents next contend that because the claimant’s employment relationship with the respondent-employer did not exist at the time her notice of claim was filed, she is not entitled to an irrebutable presumption of compensability under General Statutes (Rev. to 1989) Sec. 31-297(b). This claim is utterly without merit. The claimant’s burden to prove that she is an “employee” under the Workers’ Compensation Act; see Castro v. Viera, 207 Conn. 420 (1988); requires that she show that a contract of employment existed between her and the respondent-employer at the time of the injury, not at a later time when she filed her notice of claim. Here, the respondents do not challenge the trial commissioner’s finding that the claimant and respondent-employer had a contract of employment from 1985 through June 30, 1989.