Ciriello v. Illinois Tools Works, Inc./Highland Manufacturing

The claimant was represented by Clifford Comerford, Esq., and William F. Tynan, Esq., Tynan & Iannone, 250 Wolcott Road, Wolcott, CT 06716.

The respondents were represented by Kevin Blake, Esq., Shepro & Blake, 2051 Main Street, Stratford, CT 06615.

This Petition for Review from the October 28, 2005 Finding and Award of the Commissioner acting for the Fifth District was heard April 28, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent appeals from the October 28, 2005 Finding and Award of the Commissioner acting for the Fifth District.1 In that Finding and Award, the commissioner awarded the claimant benefits for left and right knee injuries. In its appeal the respondent presents the following issue; whether the trial commissioner erred in finding the claimant’s claim timely pursuant to § 31-294c. The written notice of claim was filed September 6, 2001. That notice of claim stated that the claimant sustained repetitive traumas to both his lower extremities resulting in bilateral knee conditions. The period of trauma was identified as occurring between December 12, 1979 through September 5, 2001.

The respondent argues that the claimant’s notice is untimely because the claimant failed to file his claim within one year from the time he knew or should have known that his knee problems arose out of and in the course of his employment. Specifically, the respondent contends that given the claimant’s prior knee surgeries the claimant’s exposure to repetitive trauma was not continuous. Thus, the claimant should have filed his claim within one year from the time his exposure to repetitive stress was interrupted by the surgeries. We are not so persuaded.

The respondent argues that the claimant underwent arthroscopy for both knees some years prior to the date his claim was filed. It is the appellant’s contention that as there were periods during which the claimant was not exposed to the repetitive stress at work, the claim is not timely. In essence, we are asked to consider whether the claimant’s knee surgeries should be seen as an interruption of the causal chain and the time for filing a claim was within one year of each of the surgeries.

Our courts have held the time for filing a claim for repetitive trauma is within one year from the date of last exposure. Discuillo v. Stone & Webster, 242 Conn. 570 (1997). Generally, the date of last exposure coincides with the last day of employment. Malchik v. Division of Criminal Justice, 266 Conn. 728, 744-45 (2003). In the instant matter, the commissioner found the claimant was employed by the respondent as a tool maker and had been so employed since 1979. Evidence presented to the commissioner reflected that claimant’s work required “constant bending, stooping, kneeling, standing, and weight bearing of heavy objects.” Finding, ¶ 10. The claimant’s treating physician, Dr. Michael Kaplan opined that the repetitive acts performed by the claimant in his work were a substantial factor in the deterioration of claimant’s knees and aggravation of claimant’s pre-existing arthritis not withstanding the prior surgeries.

Although the respondent offered conflicting medical opinions, the commissioner found the opinion of Dr. Kaplan more persuasive. Weighing and assessing the credibility of the evidence presented before him is the exclusive role of the commissioner. Ryker v. Town of Bethany, 97 Conn. App. 304 (2006). We will not disturb the resulting findings and conclusions unless they result from impermissible or unreasonable inferences, are without evidentiary support or are contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

Finally, the respondent cites Discuillo v. Stone & Webster, supra, for the proposition that repetitive trauma claims are to be filed within one year from the last day of exposure. The respondent argues, however, that the factual circumstances in Discuillo did not include a period when the claimant was not exposed to the work stress. In Discuillo the claimant suffered from repetitive emotional stress, suffered a heart attack and never returned to work. In the instant matter, the respondent argues, the claimant had some interim period when he was not exposed to the repetitive stressors. We think the distinction the respondent attempts to draw between the instant matter and Discuillo is of no legal significance. Our courts have interpreted the date from which the statute of limitations begins to run and we are bound to follow their ruling.

We therefore affirm the Finding and Award of the commissioner acting for the Fifth District.

Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno concur.

1 We note extensions of time were granted during the pendency of this appeal. BACK TO TEXT