Pelosi v. Anchor Fasteners

The claimant was represented by Ross Lessack, Esq., Dodd, Lessack, Ranando & Dalton, P. C., 700 West Johnson Ave., Cheshire, CT 06410.

The respondents were represented by Kevin Blake, Esq., Cotter, Cotter & Sohon, 500 Boston Post Road, Milford, CT 06460; P. O. Box 5660,Bayview Station, Bridgeport, CT 06610.

This Petition for Review from the February 18, 1997 Finding and Award of Dismissal of the Commissioner acting for the Fifth District was heard October 17, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the February 18, 1997 Finding and Award of Dismissal by the Commissioner acting for the Fifth District. He argues on appeal that the trier erred by failing to find that the respondent employer provided medical care pursuant to § 31-294c(c) C.G.S. via annual hearing tests, and by failing to find that the claimant’s hearing loss constituted an occupational disease under § 31-275(15). We affirm the trial commissioner’s decision.

The trier found that the claimant was employed by the respondent Anchor Fasteners from February 2, 1981 to September 26, 1989. On January 3, 1992, the claimant filed a written request for a hearing on repetitive noise exposure that allegedly resulted in binaural hearing loss. He testified at the formal hearing that the noise level in the department he worked at was high, and employees often complained about it. Anchor Fasteners provided ear protection to the claimant, and also sent its employees to Easter Seals annually to have their hearing tested. The claimant said that he was never told the results of the tests, although he did sign the test results. The reports from 1985-88 indicated a moderate high frequency hearing loss, and the 1989 report showed an additional mild loss with respect to common sounds in the left ear. The claimant first saw a doctor with respect to his hearing problem in June 1992.

Judith Melchionna, a human resources employee for Anchor Fasteners, testified that employees are given annual hearing tests pursuant to Occupational Safety and Health Administration (OSHA) regulations. The respondent did not have an on-premises physician, and if the hearing test revealed a significant hearing loss, the company nurse who reviewed the tests would prepare a separate report and go over the results with the employee. The employees were given the original test results, which the claimant testified he could not understand. The trial commissioner found that the hearing tests were conducted at the employer’s direction by an audiologist who worked for Easter Seals, who in turn sent the results to a company in Missouri for interpretation. No evidence was introduced to show that the audiologists had medical training.

The commissioner also found that the hearing test results that the claimant received on June 15, 1989 indicated “in plain simple English” that he had a binaural high frequency hearing loss and a lower frequency hearing loss in his left ear. The trier ruled that the purpose of the annual hearing tests mandated by OSHA was entirely different from the medical care and treatment referred to in § 31-294c, and did not constitute the furnishing of medical care under that section. He also found that the claimant’s hearing loss was not peculiar to his occupation as a setup man and press operator, and did not constitute an occupational disease within the meaning of § 31-275(15). As the claimant did not file notice within one year of the date of his last exposure to noise on September 26, 1989, the commissioner concluded that his claim was untimely and dismissed it for lack of jurisdiction. The claimant has appealed that decision.

In order to establish that a particular condition constitutes an occupational disease, the burden is on the claimant to demonstrate that the condition “is so distinctively associated with the employee’s occupation that there is a direct causal connection between the duties of the employment and the disease contracted.” Discuillo v. Stone & Webster, 242 Conn. 570, 579 (1997), quoting Hansen v. Gordon, 221 Conn. 29, 35 (1992). The trial commissioner ruled that the claimant did not meet that burden here. The claimant argues that this determination was erroneous, because the claimant was subjected to noise levels at his job that were in excess of the noise levels found at most other places of employment. However, the commissioner specifically found otherwise in Paragraph M of his findings. Compare Hansen, supra (commissioner found dental hygienists were at a particular risk of contracting hepatitis because of contact with blood and other secretions, which met the definition of occupational disease).

This board is not empowered to overturn the commissioner’s factual findings unless they omit material, undisputed facts, or unless they contain facts found without evidence. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995). There is no incontrovertible evidence in this case showing that hearing loss is either peculiar to the claimant’s occupation or to his specific workplace. We cannot go back and draw our own inferences from the evidence regarding the facts of this case, nor can we change the commissioner’s findings on this matter. Id. Thus, we hold that the one-year statute of limitations applies to the claimant’s repetitive trauma claim under § 31-294c, rather than the three-year notice period allowable for occupational disease claims. See Discuillo, supra; Crabb v. N.B. Jon-Son, Inc., 3296 CRB-1-96-3 (decided Nov. 19, 1997).

The claimant’s failure to provide a notice of claim within one year of September 26, 1989 would not be fatal to his claim, however, if the employer furnished medical care as required by § 31-294d for the claimant’s alleged injury within the one-year period. In order to satisfy that requirement, the commissioner must conclude that the employer’s involvement in treating the claimant’s injury shows that the employer was informed “that an injury has been suffered upon which a claim for compensation will or may be founded.” Griffith-Patton v. State of Connecticut/Department of Agriculture, 13 Conn. Workers’ Comp. Rev. Op. 177, 180, 1888 CRB-1-93-11, aff’d, 41 Conn. App. 911 (1996) (per curiam), cert. denied, 237 Conn. 930 (1996), quoting Gesmundo v. Bush, 133 Conn. 607, 612 (1947). It is the trial commissioner’s decision to determine if this level of awareness has been achieved on the employer’s part. “The Supreme Court has explained that the furnishing of medical care exception ‘is, no doubt, based upon the fact that if the employer furnishes medical treatment he must know that an injury has been suffered which at least may be the basis of such a claim.’” Riccio v. Town of Windsor, 15 Conn. Workers’ Comp. Rev. Op. 279, 2232 CRB-1-94-12 (June 20, 1996), quoting Kulis v. Moll, 172 Conn. 104, 109 (1976) (emphasis in original).

Here, the trial commissioner concluded that the OSHA-required hearing tests provided by Anchor Fasteners did not amount to medical care within the meaning of § 31-294d, and thus did not constitute an exception under § 31-294c(c). This conclusion is strongly supported by both the testimony of the witnesses and the circumstances of this case. Nowhere is it apparent that the employer had any knowledge that the claimant had suffered a work-related hearing loss that was the basis of a potential workers’ compensation claim; instead, the claimant received the same hearing test as his co-workers on an annual basis. Where the commissioner’s findings are supported by the facts, and his conclusions legally and logically follow from those findings, this board may not disturb them. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997); Webb, supra.

We also note that this case differs from the situation in Pagliuco v. United Illuminating Co., 5 Conn. Workers’ Comp. Rev. Op. 27, 427 CRD-4-85 (March 29, 1988), which the claimant cites in his brief. Pagliuco involved a company nurse (working under a physician’s supervision) who placed a claimant on light duty for several days after the claimant filed a record of occupational injuries with his employer. Id., 27-28. Here, the claimant’s hearing tests were not conducted in response to his complaint of an injury. The instant case is more similar to Riccio, supra, where this board concluded that the employer’s provision to the claimant of an annual physical examination was not “medical care” within the meaning of § 31-249c(c). Similar to the employer in Riccio, the employer here facilitated an annual hearing examination to its employees without any reason to believe that an injury had actually been suffered in any given case. We do not believe that the commissioner has committed error by finding that these hearing tests did not satisfy the medical care exception to the one-year notice requirement.