Goulbourne v. State of Connecticut/Department of Correction

CASE NO. 5192 CRB-1-07-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 26, 2008

CORDELL N. GOULBOURNE

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT/DEPARTMENT OF CORRECTION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

GAB ROBINS NORTH AMERICA

RULING ON MOTION FOR RECONSIDERATION

JOHN A. MASTROPIETRO, CHAIRMAN. On January 24, 2008 the respondent filed a Motion for Reconsideration/Reargument of our January 17, 2008 Opinion pursuant to Practice Book Section 71-5. The gravamen of the respondent’s motion is that our opinion did not properly apply the precedent in Arborio v. Windham Police Department, 103 Conn. App. 172 (2007). For the following reasons we deny this motion.

The respondent’s motion asserts three grounds of alleged error. The first alleged error is that the Commission lacked subject matter jurisdiction over this claim due to an untimely filing of claim. We have remanded this matter for factual findings on the issue of whether the claim was timely under a repetitive trauma theory of recovery. This Board cannot find facts, and the proper venue for a determination of this issue is before the trial commissioner.

The second and third claims of error address the legal aspects of the Arborio decision. Evidently the respondent believes this decision significantly modified the legal standard for the commencement of claims under Section 31-294c C.G.S. We cannot find any support for this concept from the text of the decision, particularly as the outcome of the decision was to reverse the trial commissioner and this Board for finding a claim jurisdictionally barred due to late filing.

The Arborio decision dealt exclusively with the terms of the heart and hypertension law for municipal employees (Section 7-433c C.G.S.). We can find no intent on the part of the Appellate Court to extend this decision more broadly. While the respondent argues on page 5 of their Motion that Arborio acted to overturn long standing precedent governing repetitive trauma claims such as Borent v. State, 33 Conn. App. 495 (1994) and Disciullo v. Stone & Webster, 242 Conn. 570 (1997), neither case was even cited in Arborio.

In fact the Appellate Court specifically stated in Arborio the issue of whether the injury in that case was a repetitive trauma “is not pertinent to our conclusion that the commissioner’s finding of a ‘potential hypertension problem’ does not support the commissioner’s legal conclusion of untimeliness . . . , ” and thus did not address this issue. If anything, the Appellate Court in Arborio restated the vitality of the pre-existing status of the law governing repetitive trauma, citing Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 613 (2000) as standing for the “last date of exposure” standard for a repetitive trauma claim. Arborio, supra, 173-174, fn2.

We finally note that Arborio dealt with the precedent in Kuehl v. Z-Loda Systems Engineering, 265 Conn. 525 (2003) which clearly differentiates between a defect or an inaccuracy in a claim for benefits and the failure to file such a claim at all. Id., 181. The claimant did file a claim in the present case. Whether this was a timely claim for repetitive trauma benefits is a factual determination for the trial commissioner to reach.

The Motion for Reconsideration/Reargument is therefore denied.

Commissioners Amado J. Vargas and Scott A. Barton concur.