Santry v. Fermont Division, D.C.A.

The claimant was represented by Albert E. Derosiers, Esq., Cousins & Johnson, 2563 Main St., Stratford, CT 06497.

The respondents were represented by James L. Sullivan, Esq., Maher & Williams, P.O. Box 550, 1300 Post Road, Fairfield, CT 06430-0550.

This Petition for Review from the June 21, 1993 Findings and Award of the Commissioner acting for the Fourth District was heard June 10, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the June 21, 1993 Findings and Award of the Commissioner for the Fourth District. They argue that the commissioner improperly determined that the respondent employer received timely notice of the claimant’s claim for compensation within the meaning of § 31-294 C.G.S. We affirm the trial commissioner’s decision.

The claimant began his employment with the respondent in 1972, and continued to be employed by the respondent through the time of the formal hearings on this matter. Due to the proximity of his office to an engine test station, the claimant was exposed to extremely loud mechanical noise for at least five or six hours a day every work day from 1972 until 1981. The claimant was then promoted to plant superintendent, which resulted in less exposure to the generator noise, but caused him to be exposed to the continuous thumping of punch presses for ten hours per day. All of the claimant’s significant noise exposure ceased in 1985 when he became the Director of Sales and Marketing for the respondent.

The respondent hired an outside firm to perform hearing tests on its employees in 1990. The claimant received a “medical referral” form from the respondent on October 16, 1990, which recommended that the claimant seek medical attention for a hearing loss. This form did not state the cause of the hearing loss, however. The commissioner found that the claimant first had knowledge of the relationship between his employment and his hearing loss on November 29, 1991, when he was advised of this relationship by his treating physician. Prior to that date, the claimant had believed that his hearing loss was simply related to the aging process. The commissioner further found that the claimant’s hearing loss was an occupational disease and that the claimant had filed his notice of claim on November 12, 1991. He also found that the respondent had tolled the statute of limitations on October 16, 1990 by furnishing hearing tests to the claimant. Based on these findings, the commissioner ruled that notice was timely and determined that the claimant was entitled to benefits for an eleven (11%) percent binaural hearing loss. The respondents have appealed from that award.

The respondents dispute three of the commissioners’ findings: that the claimant first knew of the relationship between his hearing loss and his employment on November 29, 1991; that the claimant’s hearing loss was an occupational disease rather than a repetitive trauma injury; and that the employer’s hearing examination tolled the statute of limitations pursuant to § 31-294c (c). We need address only the first issue.

For the purpose of this appeal, we will assume arguendo that the claimant’s hearing loss was a repetitive trauma injury with a one-year notice requirement under § 31-294c (a), and that said time limit was not tolled by the employer’s hearing examination. In a repetitive trauma case, the date of injury is normally the last day of exposure, which is usually the last day of employment. Borent v. State, 33 Conn. App. 495, 499 (1994). However, where the connection between the employment and the injury does not become apparent until long after the harmful conduct occurred, the § 31-294 statute of limitations begins to run on the date that the employee knew or should have known that he or she has a disabling condition arising out of and in the course of his or her employment. Boutin v. Industrial Components, 4 Conn. Workers’ Comp. Rev. Op. 19, 23, 237 CRD-6-83 (March 3, 1987); see also Seymour v. Bleich, 1484 CRB-6-92-8 (decided June 24, 1994). That method of calculation is applicable to the case at hand.

“As an allegation that a claim was untimely filed raises a jurisdictional question . . . we must point out that mere suspicion that a disease or an aggravation is work related does not cause the limitations period to begin to run. It must be a known manifestation of a symptom.” Prisco v. North & Judd, 10 Conn. Workers’ Comp. Rev. Op. 154, 156, 1190 CRD-8-91-3 (June 30. 1992), citing Bremner v. Eidlitz & Son, Inc., 118 Conn. 666 (1934); see also Mingrone v. Burndy Corporation, 9 Conn. Workers’ Comp. Rev. Op. 252, 254, 1109 CRD-7-90-9 (Nov. 21, 1991). Thus, in the instant case the commissioner was required to determine when the claimant knew, rather than merely suspected, that his hearing loss was work-related in order to decide when notice of the claim was due. The commissioner accordingly found that the claimant first knew his injury to be work-related on November 29, 1991, the date his treating physician informed him of the relationship between his job and his hearing loss.

The respondents argue that the commissioner’s finding is unsupported by the evidence, as the claimant was provided with the results of the employer-ordered audiometric tests on October 25, 1990. Those tests indicated that the claimant had suffered a hearing loss due to excessive exposure to noise. The claimant testified, however, that the results of the respondent’s test only suggested to him that his hearing loss was work-related rather than age-related. He stated that he did not actually know of the connection until his treating physician informed him of such on November 29, 1991.

It is the commissioner’s role to consider the credibility of witnesses and determine the facts. Adzima v. UAC/Norden Division, 177 Conn. 107, 117 (1979); Tovish v. Gerber Electronics, 32 Conn. App. 595, 598 (1993), appeal dismissed, 229 Conn. 587 (1994). “The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Adzima v. UAC/Norden Division, supra, 178. This Board is not entitled to substitute its own conclusions for those of the commissioner. Fair v. People’s Savings Bank, 207 Conn. 535, 541 (1988).

Here, the commissioner reasonably concluded from the claimant’s testimony that the claimant’s suspicion of a work-related injury did not rise to the level of a “known manifestation of a symptom” until November 29, 1991. See Prisco v. North & Judd, supra, 10 Conn. Workers’ Comp. Rev. Op. 156. Thus, the notice period began running on that date. As written notice of claim was provided to the respondent on November 12, 1991, the claimant’s notice was timely under either a one-year or three-year statute of limitations.