Opinion
CASE NO. 1302 CRD-2-91-9
DECEMBER 17, 1992
The claimant was represented by Brian W. Prucker, Esq., Asselin Associates.
The respondent was represented by Gerard Rucci, Esq. and Loida John, Esq., Assistant Attorneys General.
This Petition for Review from the September 16, 1991 Ruling on Motion to Preclude Defense Pursuant to Sec. 31-297(b), C.G.S. of the Commissioner for the Second District was heard March 13, 1992 before a Compensation Review Board panel consisting of the then Commission Chairman, John Arcudi and Commissioners Frank Verrilli and Donald H. Doyle.
OPINION
This appeal arises because the Second District's September 16, 1991 ruling denied claimant's request for preclusion and an irrebuttable presumption of compensability under Sec. 31-297(b) C.G.S. On October 13, 1988 the claimant, through his attorney, filed a written notice of claim for a hearing loss injury. The notice of claim alleged:
Notice is hereby given that the undersigned, who while in the employ of Connecticut State Department of Transportation at Norwich, CT, on the 2nd day of August, 1988 sustained injuries arising out of and in the course of his employment as follows: (State nature of injury in ordinary language.) Injury, trauma, repetitive injury, repetitive trauma to binaural ears, claims compensation in his own interest.
See Claimant's Exhibits A B.
The employer, the State of Connecticut, failed to disclaim within the statutory period. Due to the employer's failure to file a timely disclaimer of liability, claimant sought preclusion under Sec. 31-297(b). The state presented evidence that it had paid medical bills for hearing loss related problems on January 15, 1987 and January 24, 1987 and argued that those facts established a 1987 date of loss more than one year previous to the October 13, 1988 date of notice. As the notice therefore was not given within the year limit set by Sec. 31-294, then under Pelletier v. Caron Pipe Jacking, 13 Conn. App. 276 (1988), the state contended, preclusion did not lie. The commissioner "found that the latest time that claimant's injury could have occurred was January 15, 1987 and that therefore in accordance with Pelletier v. Caron Pipe Jacking, 13 Conn. App. 276 (1988), the Motion to Preclude must be denied."
The Finding, paragraph 2, stated, "On that date he [claimant] filed through his attorney a Notice of Claim for compensation for hearing loss stating the date of injury as August 22, 1988 and prior thereto." Claimant's Motion to Correct requested two corrections, one of which asked that paragraph 2 be corrected to read August 2, 1988 instead of August 22, 1988. The trier denied the correction sought. He erred in not granting the correction to paragraph 2 of his Finding as August 2, 1988 was clearly the date included in the notice of claim. The August 22 date in the Finding seems to have been a typographical error.
We also hold it was error to conclude that the latest time claimant's injury could have occurred was January 16, 1987. In instances where the injury claimed, as in many hearing loss cases, results from repetitive trauma we have held the date of injury to be the last day of exposure to the incidents of repetitive trauma, i.e., the last day worked. Dorsett v. General Dynamics, 23 Conn. App. 827 (1990) (per curiam) aff'g., 8 Conn. Workers' Comp. Rev. Op. 77 (1990); Carvalko v. Bassick Co., 9 Conn. Workers' Comp. Rev. Op. 258, 767 CRD-4-88-9 (1991); Delos v. United Illuminating, 7 Conn. Workers' Comp. Rev. Op. 111, 751 CRD-88-7 (1989); Pich v. Pratt Whitney, 4 Conn. Workers' Comp. Rev. Op. 163, 364 CRD-6-84 (1988). Cf. Stevens v. Raymark Corp., 28 Conn. App. 226 (1992). The claimant continued to work after the 1987 medical treatment for hearing loss. As he alleges, he was working August 2, 1988. On its face therefore the October 13, 1988 notice of claim for an August 2, 1988 injury is within the year statute of limitation period of Sec. 31-294. Pelletier, supra, is not applicable, and the commissioner had jurisdiction over the subject matter to act on claimant's motion for preclusion.
We sustain claimant's appeal and reverse the Second District ruling denying preclusion.
Commissioners Frank Verrilli and Donald H. Doyle concur.