Smith v. AETNA Life & Casualty

The claimant was represented by Barbara J. Morelli, Esq., Asselin & Associates, One Courthouse Square, Willimantic, CT 06226.

The respondents were represented by Michael J. McAuliffe, Esq., and Stephen G. Ekern, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the March 23, 1994 Finding and Dismissal of the Commissioner acting for the First District was heard February 24, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the March 23, 1994 Finding and Dismissal of the Commissioner for the First District. On appeal, he argues that the commissioner incorrectly determined that his claim was time-barred under § 31-294c C.G.S. We affirm the trial commissioner’s decision.

The commissioner found the following facts. The claimant, who had been employed by the respondent since 1962, became involved with a project known as “Top Secret” in 1986. He became increasingly concerned that the project was being corrupted by an outside vendor, which could have had a nationwide impact. After the transfer of a co-worker, he became the sole custodian of the project in 1991. The claimant was trying to do his best on the project, and felt a great deal of stress from the situation. On May 8, 1991, his psychiatrist removed him from work, stating that he was totally disabled.

The claimant filed a Form 30C for work-related stress on August 24, 1992. The respondent contested both the causal relation of the claimant’s depression to his work and his total disability. It further alleged that the claim was time-barred, as it was not filed within one year of the injury. The commissioner agreed with the latter contention, finding that the claim was the result of repetitive trauma, and that it should have been filed within one year of May 8, 1991, the last date of the claimant’s employment. He therefore dismissed the claim, from which the claimant has appealed.

The claimant argues that the commissioner erroneously determined that the one-year statute of limitations began running on May 8, 1991, in light of Crochiere v. Board of Education, 227 Conn. 333 (1993), and Boutin v. Industrial Components, 4 Conn. Workers’ Comp. Rev. Op. 19, 237 CRD-6-83 (March 3, 1987). He also argues that the commissioner erred by denying his Motion to Correct and his Motion to Submit Additional Evidence.

The commissioner found, and the claimant does not dispute, that the claimed injury was the result of repetitive trauma, and not occupational disease. See Crochiere, supra, 352-53. In repetitive trauma cases, § 31-294c requires a notice of claim for compensation to be filed within one year from the date of injury. Crochiere, supra, 353; Seymour v. Bleich, 12 Conn. Workers’ Comp. Rev. Op. 312, 314, 1484 CRB-6-92-8 (June 24, 1994). “[A]s a matter of law, the date of injury of a repetitive trauma is the last day of exposure, which is usually the last day of employment.” Borent v. State, 33 Conn. App. 495, 499 (1994). As noted above, the commissioner found that the claimant’s employment ceased on May 8, 1991, the date Dr. Grayson removed him from work.

The claimant argues that Crochiere supports the use of a later date of injury. In Crochiere, the claimant was a music teacher who continued to be exposed to negative media publicity surrounding allegations of sexual misconduct even after he physically left school. In fact, the plaintiff’s mental stress occurred almost entirely between the time of his suspension in June, 1987 and his termination four months later. In that case, it was clear that the plaintiff’s exposure to repetitive trauma happened after he left the job site.

Here, in contrast, there was no finding made that the claimant suffered additional repetitive trauma after he left the workplace on May 8, 1991. The fact that he may have experienced some stress when he later received letters or phone calls from Aetna did not require the commissioner to find that exposure continued after the date he left the workplace. The commissioner instead found that the claimant was totally disabled by his psychiatrist after May 8, 1991, which was thus the last date of his employment. Those findings are clearly supported by the evidence, and we need not disturb them. Webb v. Pfizer, Inc., 1859 CRB-5-93-9 (decided May 12, 1995).

The claimant also argues that under Boutin, supra, the one-year statute of limitations does not begin to run in repetitive trauma cases “until the employee knew or should have known that he has a disabling condition arising from the employment.” Id., 23. He contends he was unaware of the relation between his injury and his employment until at least September 1991, and that his notice of claim was therefore timely. He argues that a remand is necessary for additional findings on this issue.

The question of whether Boutin applies is grounded in fact, of course. In Boutin, the claimant was unaware that her carpal tunnel syndrome was work-related until one year after her initial right arm surgery. She could not have filed a notice of claim any earlier. In this case, no finding has been made that the claimant was unaware of the cause of his injury at the time he became disabled. The claimant sought to add a finding in his Motion to Correct stating that he was unaware of the causal relationship between his work and his disability on May 8, 1991, but that correction was denied.

The September 10, 1993 transcript shows that the claimant testified that he left Aetna about two months after both his assumption of the Top Secret project and the death of his father. He then testified that he hadn’t been sure as to the cause of his depression at that time. (Transcript, p. 45, 48). The commissioner was not required to give any particular weight to this testimony, however, as it was his prerogative to determine its credibility. Webb, supra. The absence of a finding as to the claimant’s delayed knowledge of the cause of his injury merely indicates that the commissioner declined to rely on this testimony. The fact that the Motion to Correct was denied also supports that conclusion. We do not think that further findings are necessary on this issue, as the commissioner has already heard and disregarded the proffered testimony.

There was no error in the denial of the claimant’s Motion to Correct, as most of the corrections sought by the claimant would have had no impact on the outcome of this case. Webb, supra; Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994). A few other corrections were either already in the findings, inconsistent with findings properly supported by other evidence, or dependent on testimony that the commissioner had discretion to disregard. See Plitnick, supra. For that reason, we affirm the denial of the Motion to Correct.

Similarly, there was no error in the denial of the Motion to Submit Additional Evidence. The claimant sought to introduce a letter of resignation by the claimant dated February 4, 1994, in order to prove that he was still an employee after May 8, 1991. The commissioner denied that motion. This is not a Motion to Submit Additional Evidence under Admin. Reg. § 31-301-9; rather, we are simply reviewing the commissioner’s decision not to admit the evidence. In this area the commissioner has broad discretion, and we may not set aside his ruling absent a clear abuse of that discretion. York v. General Dynamics Corp., 13 Conn. Workers’ Comp. Rev. Op. 166, 1770 CRB-2-93-6 (March 9, 1995).

As the respondent pointed out in its brief, the claimant could have testified at the September 10, 1993 formal hearing that he believed he was still an Aetna employee. Moreover, the credibility of his letter of resignation would be questionable given its potential effect on his workers’ compensation claim. Thus, we cannot say that the commissioner abused his discretion in denying the request to submit additional evidence.