Romano v. Logistec of Connecticut

The claimant was represented by David Kelly, Esq., Montstream & May, Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The respondents were represented by John Greiner, Esq., Murphy & Beane, P. O. Box 590, 2 Union Plaza, New London, CT 06320.

This Petition for Review from the February 18, 2000 Finding and Dismissal of the Commissioner acting for the Third District was heard October 27, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Leonard S. Paoletta and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the February 18, 2000 Finding and Dismissal of the Commissioner acting for the Third District. In that decision, the trial commissioner dismissed the claimant’s claim under § 31-312 C.G.S. for mileage reimbursement and wage replacement for the time spent at an independent medical examination, on the basis that the claimant had never filed a workers’ compensation claim. In support of his appeal, the claimant argues that the trier erred by finding that he did not file a timely claim under the Workers’ Compensation Act. Specifically, the claimant argues that because his alleged injury was hearing loss due to repetitive noise exposure, he has one year from the date of last exposure to file a timely claim and because he is still employed with the respondent employer, he may still file a timely claim. We find no error.

Initially, we note that the respondents have filed a Motion to Dismiss the claimant’s appeal due to the claimant’s late filing of Reasons of Appeal. We note that the respondents have not alleged any prejudice. Furthermore, we recognize that the Reasons of Appeal were not filed inordinately late, and that the claimant filed a timely Motion to Correct and a timely brief. Thus, in our discretion we deny the Motion to Dismiss. Chang v. Pizza Hut of America, Inc., 4122 CRB-6-99-9 (Nov. 28, 2000).

The trial commissioner found the following relevant facts. The claimant, an employee of the respondent employer, filed a claim for occupational hearing loss under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) on September 26, 1997. The claimant has never filed a Form 30C Notice of Claim and no compensation or medical benefits were sought or tendered under the Workers’ Compensation Act (“Act”) as of the date of the formal hearing. The claimant seeks reimbursement under § 31-312 C.G.S. for submitting to an independent medical examination on November 11, 1998.1 Specifically, the claimant seeks reimbursement for mileage and for twelve hours of missed work. The trial commissioner dismissed the claimant’s request, as no claim under the Act had ever been filed.

In support of his appeal, the claimant contends that because his alleged hearing loss injury was due to repetitive noise exposure, he has one year from the date of his last exposure to file a timely claim. The claimant further argues that because he is still employed with the respondent employer, he may file a timely claim. The claimant does not argue that his notice of claim filed under the LHWCA on September 26, 1997 constitutes timely notice under our Act. See Buck v. General Dynamics Corp./Electric Boat Division, 3324 CRB-2-96-4 (Jan. 21, 1998), in which this board held that the filing of a claim under the LHWCA did not by itself indicate that the claimant intended to pursue benefits under Chapter 568.

Section 31-294c(a) provides that no claim under the Workers’ Compensation Act can be maintained unless a written notice for compensation is given within one year of the date of an accident. Notice may be given to either a commissioner or the employer, “and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, . . . and the name and address of the employee and of the person in whose interest compensation is claimed.” Hearing loss from repeated noise exposure is normally deemed to be a repetitive trauma injury, and thus in order to be timely, a claim must be filed within one year following the last date of injurious exposure. See Discuillo v. Stone & Webster, 242 Conn. 570, 579 (1997); 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).

In the instant case, the trial commissioner did not make any findings regarding the claimant’s allegation that he has sustained continued exposure to repetitive trauma during his employment, and the trial commissioner denied the claimant’s Motion to Correct regarding this allegation. As the claimant has not filed a Notice of Claim under the Act we certainly see no error in the trial commissioner’s denial of the claimant’s Motion to Correct. See Sendra v. Plainville Board of Education, 3961 CRB-6-99-1 (Jan. 20, 2000) (commissioner not required to grant corrections which would not affect the outcome of the case). If and when the claimant chooses to pursue a claim under the state Act, he may file a Form 30C Notice of Claim. As noted by the respondents in their brief, the respondents would of course be allowed proper credit for all payments made under the LHWCA. See McGowan v. General Dynamics Corporation/Electric Boat Division, 15 Conn. App. 615 (1988), aff’d, 210 Conn. 580 (1989)(per curiam).2 We note that the respondents argue in their brief that payments already made under the LHWCA exceed the amount sought by the claimant under § 31-312 C.G.S.

In conclusion, as the trial commissioner specifically found that the claimant had not filed a claim under the Workers’ Compensation Act, the claimant’s request for payment under § 31-312 C.G.S. was properly denied.

Commissioners Leonard S. Paoletta and Ernie R. Walker concur.

1 The respondents state in their brief that the examination was performed pursuant to § 7 of the Longshore and Harbor Workers’ Compensation Act. BACK TO TEXT

2 In McGowan, supra, the Appellate Court declined to implement a category-by-category credit scheme that would have allowed a claimant to recover a total award greater than that available under either the federal LHWCA or our Workers’ Compensation Act alone. The importance of prohibiting “double recovery” for a claimant’s injuries was emphasized by the court, as was the exclusive remedy provision of our Act. Id., 618-19, 621-22. BACK TO TEXT