Masucci v. Ray’s Auto Body, Inc.

The claimant was represented by Ross T. Lessack, Esq., Dodd, Lessack, Ranando & Dalton, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The respondents Ray’s Auto Body, Inc. and Hartford Insurance Group were represented by Frank Ancona, Esq., Mathis & Associates, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.

The respondents Ray’s Auto Body, Inc., and American Policyholders Insurance Company were represented by Joseph J. Passaretti, Jr., Esq. and Lisa M. Mullin, Esq., Montstream and May, L.L.P., 655 Winding Brook Drive, Glastonbury, CT 06033.

The respondents Ray’s Auto Body, Inc. and Fairmont Insurance/TGI Insurance Company were represented by Melanie A. Dillon, Esq., Howd & Ludorf, 65 Wethersfield Avenue, Hartford, CT 06114-1190.

The respondents Ray’s Auto Body, Inc. and Republic Franklin Insurance Company were represented by Mark H. Pearson, Esq., 60 Trumbull Street, New Haven, CT 06510.

The respondents Ray’s Auto Body, Inc. and Mathog & Moniello were represented by James L. Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the December 5, 2002 Ruling Re: Claimant’s Motion to Preclude dated November 20, 2001 and Dismissal of Claim of the Commissioner acting for the Sixth District was heard May 30, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Howard H. Belkin and James J. Metro.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, John J. Masucci, has appealed from the December 5, 2002 Ruling Re: Claimant’s Motion to Preclude dated November 20, 2001 and Dismissal of Claim of the Commissioner acting for the Sixth District. The commissioner denied claimant’s Motion to Preclude and dismissed claimant’s claim. We affirm the decision of the trial commissioner.

The pertinent facts from the record are as follows. Claimant testified that he worked as an auto body repair person for respondent Ray’s Auto Body, Inc. for approximately 11½ years prior to filing this claim for workers’ compensation. On February 15, 1999 he left work early for an outside appointment. On February 16 and 17 the claimant called in sick. On February 18 he came to work early, at approximately 7:30 am. He did not punch in on that date because the employer did not want employees to punch in prior to 7:45 am. It was his intention to work a full day on that date. After putting his orange juice in the refrigerator, the claimant went into Dave Merchant’s office. Dave Merchant was one of the three brothers who owned the business. The claimant explained to Dave Merchant that he had been out sick the prior two days and Mr. Merchant replied “yeah oh yeah right.” May 8, 2002 Transcript, p. 11. According to the claimant, this was the entire conversation that he had with Dave Merchant on February 18. It was the claimant’s perception that Dave Merchant did not believe that claimant was sick on February 16 and 17. According to the claimant this caused him to snap “like a breakdown, it’s always so stressful in there.” Id., 11. He then left the building five to ten minutes after he had arrived and did not return to work on that day.

Claimant testified that he soon after went into rehabilitation. About a week later he called Dave Merchant and told him that he needed a little time off. Mr. Merchant told him to take his time.

Claimant testified that he went back into respondents’ place of business on a subsequent Saturday to pick up uniforms because he intended to return to work. On that date he talked to another owner, Steve Merchant, who told him that the business was going in a new direction and the job claimant was doing would be more stressful than it had been before. Steve Merchant referred the claimant to his brother and fellow owner Dave Merchant.

Claimant testified that he went to talk to Dave Merchant the following Monday, which was sometime in March. At that time Dave Merchant handed him a pink slip for unemployment purposes.

Respondents’ witness, Dave Merchant, also testified before the commissioner. His recollection of the pertinent events did not differ substantially from claimant’s testimony. Dave Merchant stated that there were no heated words between claimant and himself on February 18, 1999. When claimant left his office he thought that claimant was going to work on that date. The termination notice which was handed to claimant was dated March 8, 1999. Respondents submitted the termination notice as “Respondents’ Exhibit 2.” Dave Merchant testified that claimant was terminated as of March 8, 1999. However, he said that claimant’s last date of work was February 15, 1999, the date which also appeared on the termination notice.

The trial commissioner took administrative notice of the fact that claimant’s notice of claim was received by this commission’s Sixth District office on February 17, 2000. The notice of claim asserted “repetitive and cumulative emotional and physical stress from approximately 1/2/88 to 2/18/99, resulting in emotional and physical symptomatology, including excessive drinking of alcoholic beverages (alcoholism) resulting in disability.” Findings, ¶ A. Claimant alleged that this disability/injury arose out of and in the course of his employment with the respondent/employer.

The trial commissioner also took administrative notice of the fact that the claimant’s workers’ compensation file does not reflect a timely disclaimer contesting claimant’s repetitive injury claim. Findings, ¶ B. Additionally, the commissioner took administrative notice of claimant’s Motion to Preclude dated November 20, 2001 which was based upon respondents’ failure to file a timely disclaimer of claimant’s claim. Findings, ¶ C. In their briefs, respondents argued that the Motion to Preclude should be denied and the claim should be dismissed because claimant’s original notice of claim was untimely under § 31-294c C.G.S.1.

The trial commissioner also found that claimant’s claim was time-barred because his last day of injurious exposure to occupational stress was, at the latest, February 15, 1999. Findings, ¶ K2.

The ultimate issues presented for review by the appellant-claimant, John J. Mascussi, are as follows: Whether the trial commissioner erred in concluding that the claimant did not file his notice of claim within one (1) year as required by § 31-294c, and, whether the commissioner erred by concluding that the last day of claimant’s exposure to work related stress was February 15, 1999. Claimant argues that the commissioner erred as a matter of law by drawing inferences which were legally inconsistent with the subordinate facts.

With respect to the trier’s conclusion that claimant’s claim is time-barred the applicable statute in this case is § 31-294c(a). It states in relevant part:

The issue in this case is whether claimant filed his notice of claim within one year as required by § 31-294c(a). The purpose of this notice statute is that upon receipt of the notice of claim the employer will have the opportunity to investigate the claim. Pelletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276, 280 (1988). “The timeliness of an employee’s claim is essential to the operation of the preclusion statute.” Id.

In order to make a claim for repetitive emotional stress, such as in this case, the claimant must prove that he was fulfilling his duties or doing something incidental to such when he sustained his alleged injuries. Fulco v. Norwich Roman Catholic Diocesan Corp., 27 Conn. App. 800, 808, 809 (1992). The injurious activity must be something that claimant regularly engaged in as part of his job duties. Id., 8093.

The date of injury of a repetitive trauma is the last date of exposure, which is usually the last date of employment. Borent v. State, 33 Conn. App. 495, 499 (1994), Tobin v. Kimberly-Clark Corporation, 16 Conn. Workers’ Comp. Rev. Op. 39, 2045 CRB-7-94-5 (October 18, 1996).

In this case a dispute has arisen as to the date on which the one-year notice period began to run. In claimant’s Motion to Correct, dated December 17, 2002, he asked the trial commissioner to find that the stress that claimant was feeling on February 18, 1999 was similar to the stress that he felt on other days. He sought this correction in order to establish that he had suffered continuing job stress up through at least February 18, 1999. Claimant’s Motion to Correct also asked the commissioner to find that claimant was employed with respondent through March 8, 1999, based on his appearance on respondents’ premises on March 6, 1999 to pick up uniforms, and his assertion that he returned to the workplace on March 8, 1999 intending to perform his job. The trial commissioner considered these arguments and denied claimant’s Motion to Correct on December 23, 2002, which equates to a factual finding that the claimant’s proposed corrections were not sufficiently credible. Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (Feb. 28, 2003).

The trial commissioner found that there was evidence in the record to establish that claimant was not exposed to injurious stress after February 15, 1999. Findings, ¶ K. At trial, claimant testified about the stress that he felt when he was at work. He talked about stress relating to review of his work, claiming that one owner might tell him that a job was perfect, while another owner might later make him redo it. May 8, 2002 Transcript, p. 12.

The claimant testified “that upon arriving at work on February 18, 1999 he went to the offices of Dave Merchant, president and co-owner of the respondent. A short conversation ensued concerning his absences and the claimant indicated that he ‘snapped.’” Findings, ¶ 8.

The trial commissioner’s findings shed light on how he reached his conclusions. He found the following: “On his return to work on the morning of February 18, 1999, the claimant did not punch in, did not sign out his tools, did not perform any of his job duties and after a brief discussion with a co-owner of respondent, left the premises.” Findings, ¶ F. The fact that claimant did not do any actual work relating to automobile repair on the 18th shows that he did not work on that date and was not exposed to occupational stress on that date. Similarly, the fact that claimant only engaged in a brief discussion with Dave Merchant about his sick days is proof that the claimant did not experience stress related to his job duties on that date. “The claimant returned to the respondents premises on March 6, 1999 and March 8, 1999. He did not perform any job duties on these dates.” Findings, ¶ G. Similarly, the fact that claimant did not perform work duties on these days supports the finding that the claimant was not exposed to occupational stress on these dates.

The trier’s findings in this matter are a result of the credibility and weight he assigned to the evidence of the case. We will not overturn the findings and conclusions of a trial commissioner unless they are without evidentiary support, contrary to law or based on unreasonable or impermissible factual inferences. Kish v. Nursing and Home Care, 248 Conn. 379 (1999); Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). In this case there was ample evidence in the record to support the determination that any injurious exposure to work-related repetitive trauma claimant might have been exposed to did not occur after February 15, 1999. The trial commissioner made appropriate conclusions that were consistent with the subordinate facts; therefore, his decision will not be overturned.

We thus affirm the December 5, 2002 Ruling Re: Claimant’s Motion to Preclude dated November 20, 2001 and Dismissal of Claim of the Commissioner acting for the Sixth District.

Commissioners Howard H. Belkin and James J. Metro concur.

1 Respondents also raised the issue that the commission lacked subject matter jurisdiction under § 31-275(16)(B)(ii) C.G.S. (excluding from the definition of personal injury any mental or emotional impairment that did not arise from a physical or occupational disease) and § 31-284(a) (compensation not paid when the personal injury is caused by willful or serious misconduct of the injured employee or his intoxication). We need not reach these issues, given the disposition of the first argument. span class="back">BACK TO TEXT

2 Ultimately the commissioner did not make a finding regarding respondents’ assertions under §§ 31-275(16)(B)(ii) and 31-284(a), as the motion to preclude was denied and the claim was dismissed under § 31-294c. Findings, ¶ L. span class="back">BACK TO TEXT

3 It should be noted to the reader that the Fulco case, supra, predates the 1993 amendments to the Connecticut Workers’ Compensation Act. In 1993 the legislature amended § 31-275(16)(B)(ii) C.G.S so that it no longer recognizes emotional stress injuries without some type of associated physical injury or occupational disease. As noted above, the trial commissioner did not reach that issue in his decision, nor need we address it further here. span class="back">BACK TO TEXT