Maginnis v. U.S. Airways

The respondents were represented by Michael Vocalina, Esq., Berchem, Moses & Devlin, Attorneys At Law, 75 Broad Street, Milford, CT 06460.

This Petition for Review from the August 20, 1999 Finding and Dismissal of the Commissioner acting for the First District was heard June 16, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the August 20, 1999 Finding and Dismissal of the Commissioner acting for the First District. In that decision, the trial commissioner dismissed the claimant’s hearing loss claim on the basis that the claimant did not file a timely notice of claim. In support of his appeal, the claimant argues that he presented medical evidence indicating that his hearing loss constituted an occupational disease, and that the trial commissioner failed to make a factual determination as to whether the claimant’s hearing loss constituted an occupational disease.

The trial commissioner found that the claimant was employed by U.S. Airways from 1969 to October 7, 1991. The claimant alleged that he was exposed to jet engine noise, and suffered hearing loss and tinnitus due to the noise exposure. Although the claimant was aware that he suffered hearing loss in the 1990’s, and perhaps the 1980’s, he alleged that his hearing loss due to noise exposure at work was first diagnosed on July 17, 1997. Finding ¶ 3. The claimant terminated his employment with the respondent employer on October 7, 1991. He filed a Form 30C on June 16, 1998. At the formal hearing, the claimant contended that his hearing loss should be considered to be an occupational disease based upon the opinion of Dr. Storey, who cites the National Institute for Occupational Safety & Health and other agencies which consider this type of hearing loss to be an occupational disease. Finding ¶ 9.

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); see also § 31-275(15) (defines an occupational disease as “any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such . . . .”). In the instant case, the trial commissioner was not persuaded by the evidence presented by the claimant that his hearing loss constituted an occupational disease. Specifically, the trial commissioner found as follows: “The claim as to occupational disease is DISMISSED.” Finding ¶ F.

Whether a claimant meets his burden of proving that an injury is an occupational disease is a factual question for a trial commissioner to determine. See Pelosi v. Anchor Fasteners, 3542 CRB-5-97-2 (June 2, 1998). This board may not disturb a trial commissioner’s factual determination unless the conclusions are contrary to law, or based on impermissible or unreasonable factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). In the instant case, there is no incontrovertible evidence that hearing loss is either peculiar to the claimant’s occupation or to his specific workplace. Because the trial commissioner was not persuaded that the claimant’s hearing loss constituted an occupational disease, the trial commissioner correctly applied the one-year statute of limitations to the claimant’s repetitive trauma claim under § 31-294c. Indeed, “most of our decisions quantify hearing loss from repeated noise exposure as a repetitive trauma injury.” Crabb v. N.B. Jon-Son, Inc., 3296 CRB-1-96-3 (Nov. 19, 1997), citing Dorsey v. UTC/Norden Systems, 15 Conn. Workers’ Comp. Rev. Op. 447, 2268 CRB-7-95-1 (September 6, 1996), aff’d., 45 Conn. App. 707 (1997); Blassingame v. Acme Steel Company, 16 Conn. Workers’ Comp. Rev. Op. 20, 3007 CRB-6-95-3 (October 8, 1996), aff’d., 45 Conn. App. 914 (1997) (per curiam); compare Santry v. Fermont Division, 13 Conn. Workers’ Comp. Rev. Op. 230, 1768 CRB-4-93-6 (April 13, 1995); see also Discuillo, supra; Pelosi, supra. Thus, the trial commissioner properly dismissed the claim as untimely, as it was not filed within one year following the last date of injurious exposure.

The claimant also makes a more complex legal argument, specifically that under Discuillo, supra, the trial commissioner was required to make a factual determination as to whether the repetitive trauma injury (hearing loss) for jurisdictional purposes should be deemed to fit into either the “accidental injury” or the “occupational disease” category in § 31-294c. It should be noted that in Discuillo, the court did stress that repetitive trauma injuries are not automatically categorized as “accidental injuries” rather than “occupational diseases” for purposes of determining jurisdiction under § 31-294c, and that the trial commissioner should make a factual determination as to whether a repetitive trauma injury should be treated as an occupational disease for jurisdictional purposes. Id., 580 fn. 10. In the instant case, the trial commissioner did precisely that when he considered the evidence presented by the claimant that his hearing loss should be deemed to be an occupational disease, and was not persuaded. As that determination is supported by the record and did not result from an incorrect application of the law to the subordinate facts or from an illegal inference, we cannot disturb that determination. Fair, supra.