Summary
In Boutin, a case involving an employee who suffered from carpal tunnel syndrome because of work-related repetitive trauma, the review board reversed the ruling of the commissioner below.
Summary of this case from Discuillo v. Stone and WebsterOpinion
CASE NO. 237 CRD-6-83
MARCH 3, 1987
The claimant was represented by Louis P. Kocsis, Esq., Furey, Donavan Heiman, P.C.
The respondents were represented by Jeffrey B. Coppage, Esq., Trowbridge, Ide, Greenwald Coppage, P.C.
This Petition for Review from the May 20, 1983 Finding and Dismissal of the Commissioner-at-Large, acting for the Sixth District, was heard August 16, 1984 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Edward F. Bradley and Andrew Denuzze.
FINDING AND AWARD
1-7. Paragraphs 1 through 7 of the trial Commissioner's Finding and Award are made paragraphs 1 through 7 of the Division's Finding and Award.
8. Claimant filed a timely notice of claim for benefits July 28, 1981.
9. Claimant is entitled to benefits under the Act for the left arm condition.
IT IS THEREFORE ORDERED, ADJUDGED AND AWARDED that claimant be given all benefits due her under the Act.
OPINION
During the Four decades that the Workers' Compensation Act has included "repetitive trauma" as part of the definition of injury, our Supreme Court has rendered only two decisions concerning the 1947 amendment, Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142 (1972), Glenn v. Stop Shop, Inc., 168 Conn. 413 (1975). Those cases involved contests over causation of the employee's injury. Therefore, they provide little guidance in the present repetitive trauma matter where the parties stipulated claimant's injury arose out of the employment. Rather, the issue here is whether the employee filed her notice of claim in a timely manner and how the provisions of Section 31-294, C.G.S. pertain to her claim.
Sec. 31-275(8). Previously Sec. 5223, Chapter 280, Conn. General Statutes. Rev. 1930, amended Sec. 1367 i, 1947 Supp.
Claimant was a machine-operator employed by this employer since 1964. One of her jobs required placing aluminum rods which were then bent in a semi-circle on a wheel. Since those rods had a tendency to adhere to the wheel, claimant struck the rods with her palms to free them.
This action was repeated many times a day for ten years preceding her claim. As a consequence of these repetitive acts, claimant suffered a carpal tunnel syndrome in both the left and right arms. The right arm symptoms were relieved with surgery performed July 14, 1980, by Dr. Russell S. Bower, a New Britain neurosurgeon. Dr. Bower also performed left arm surgery in February, 1981.
On or about July 12, 1981 Dr. Bower informed the claimant for the first time that the carpal tunnel condition in both arms was due to her work. She gave notice of claim for both conditions July 28, 1981. The employer accepted liability for the left arm in a Voluntary Agreement between the parties approved May 6, 1982 by the Sixth District Commissioner. A document filed August 17, 1981 originally contested compensability for the right arm condition on four grounds. However, the other three grounds of contest were withdrawn, leaving only the contention that the July 28, 1981 notice of claim was filed more than a year after the injury and is therefore time barred The trial commissioner did not specifically find a date of injury but ruled that the July 28, 1981 notice came more than a year after the July 14, 1980 right arm surgery and held the filing was late.
Claimant argues the 1980 amendment extending the time for filing employment related disease claims to three years should apply. Her argument holds that a carpal tunnel syndrome resulting from the events here described is in fact an occupational disease. As such the longer period of limitation pertains. This argument might have had a certain appeal before 1947. Then the statutory definition only encompassed two types of injury, (1) an accident definitely located in time and place and (2) occupational disease. However, 1947 Public Act No. 191 enlarged the definition specifically to include repetitive trauma as a separate category. Carpal tunnel syndrome is a classic example of repetitive trauma etiology. If the commission ever had a basis to label such a condition occupational disease by administrative interpolation, as it were, the 1947 enactment effectively foreclosed such an option.
But our conclusion denying carpal tunnel syndrome to be occupational disease is not dispositive here. We would need to hold that claimant's remedy expired before she could know that she was injured in order to affirm the ruling below. Such a determination offends equity and logic.
The original limitations language in the 1913 statute provided that "No proceedings shall be maintained unless. claim is made within one year from the date of injury." When the statute first encompassed occupational disease coverage in the limitation remained "within one year from the date of injury," but that same statutory change employed the following language to include disease within the injury umbrella:
". . . If an injury arises out of and in the course of the employment it shall be no bar to a claim for compensation that it cannot be traced to a definite occurrence which can be located in a point of time and place. Any disease which is caused by an injury arising out of and in the course of the employment, shall be deemed to be a natural consequence of such injury. . ."
Public Act 1919, Chapter 142, Section 1.
Not until 1927 did the legislature change the limitations language to the formula now employed:
"No proceedings for compensation under the provisions of chapter 284 of the general statute shall be maintained unless a written notice of claim for compensation shall be made within one year from the date of the accident or from the first manifestation of a symptom of the occupational disease."
Sec. 5360 General Statutes, 1918 Rev. as amended by Public Acts 1927, Chapter 307, Sec. 5.
At the same time, came the first use of the definition language which survives in Sec. 31-275(8) today:
". . . The words "personal injury" or "injury" as the same are used in said chapter 284 shall be construed to include only accidental injury which may be definitely located as to the time when and the place where the accident occurred and occupational disease as herein defined. . ."5
When "repetitive trauma" was added to the definition, the legislature made no change in the limitations language. It has remained as it was in 1927. Sec. 31-294 still refers to "one year from the date of accident" or "from the first manifestation of a symptom of the occupational disease," except that as noted the period for occupational disease was extended to three years in 1980.
The legislative omission to change that 1927 language when it was altering the definition of "injury" to include "repetitive trauma" in 1947 lies at the nub of the matter. Repetitive trauma is not "an accident" or an "occupational disease", yet notice of claim must be made within one year of the "accident" of three years from the "manifestation of the occupational disease symptom." It might therefore boldly be argued that as repetitive trauma is neither an accident or an occupational disease, the 1947 General Assembly meant to place no limitation on the period for filing a notice of claim. But such a view would misread legislative intent in the light of the history we have cited. Rather, we need to go back to the first rendition "one year from the date of injury" and determine what was the injury and what was its date. The statutory development of the definition language and the limitations formula together with the court decisions interpreting the succeeding versions do offer us some clues.
Judicial dialogue over the meaning of "injury" came early. Both the majority opinion and a powerful landmark dissent, Miller v. American Steel Wire Co., 90 Conn. 349 (1916) treated the concept at length. Justice Beach for the majority wrote:
". . . the term "personal injury" as used in common speech, especially in connection with actions for damages, is more often intended to exclude disease than to include it. It is evidently not used in this Act in the legal sense which would include a libel or the seduction of a minor daughter, but in the popular sense of a bodily injury sustained while in the course of the employment; and in Sec. 20 the phrase "reports of accidents" is used as synonymous with "reports of injuries."
Miller v. American Steel Wire Co., Supra, 360.
The majority opinion thus goes on to hold that occupational disease was not included within the meaning of the word "injury" as then used in the statute. As a further reason for this conclusion the decision added:
. . . it is notorious that the typical occupational disease is not an injury which can be said to have been "sustained" at a given date. If, for the purpose of escaping the difficulty it is attempted to substitute the date of the incapacity for the date of the injury, it will be necessary to repeal and reconstruct a considerable portion of the act." Ibid. 361.
The statutory "one year from the date of injury" language was not an issue in the Miller case, but the majority's language made clear that non-accidental disabling work-related conditions did not fit very easily into a requirement that notice be given within a certain period after the accident.
Expressing the contrary view in language resonant with prophesy Justice Wheeler's minority opinion holds:
"The term "personal injury" as found in the statute is used to indicate "the object of the hurt, rather than the subject of the legal injuria." It does not here designate the Act or omission which harms or damages another, but the harm or damage done to the person. An injury to the person may logically and legally include disease whether occupational or otherwise."
Miller v. American Steel Wire Co., Ibid., 367.
The 1919 and 1927 legislative enactments previously cited clearly enacted Wheeler's 1916 dissenting opinion into law. In the first instance the Workers' Compensation Act was amended so that a work injury would not be barred of recovery if not traceable to an occurrence definitely located in time and place. Eight years later a definition section was added in which "injury" was construed to include "occupational disease."
Even before the 1927 legislative changes Wheeler had won the entire court to his view:
"A compensable personal injury is an abnormal condition of a living body which arises out of and in the course of the employment and produces an incapacity to work for the requisite statutory period. It need not be traced to a definite happening of event. It may be caused by accident or disease, and includes diseases peculiar to an occupation except those of a contagious, communicable, or mental nature. The happening of event includes the entire transaction to which the injury is traced, not only the operative causes but their effect on the body of the injured person."
De La Pena v. Jackson Stone Co., 103 Conn. 93, 99 (1925).
A decade later Chief Justice Maltbie who, together with Wheeler, was the principal judicial interpreter of our Workers' Compensation Law authored the leading precedent on when the limitation period begins to run. ". . . the duty of giving notice, . . . should arise only when a symptom . . . should plainly appear, not when it was merely suspected or doubtful." Bremner v. Eidlitz Sons, Inc., 118 Conn. 666, 669 (1934). Maltbie, if anything, broadened even further Wheeler's concept of jury, Stier v. Derby, 119 Conn. 44 (1934), St. John v. V. Piccolo Co., Inc., 128 Conn. 608 (1942), Jones v. Hamden, 129 Conn. 532 (1942), cases involving the heart, a hernia and a cerebral aneurysm respectively.
We therefore take the Wheeler and Maltbie broad injury concept as spanning the whole spectrum of work related events resulting in employee disability and add Maltbie's Bremner holding that the limitation period is not triggered until the employee knew or should have known that he has a disabling condition arising from the employment. This gives us a useful intellectual tool for determining the meaning of "one year from the date of injury" in repetitive trauma cases which involve neither accident or occupational disease symptoms.
As it is undisputed that this claimant was not informed by her doctor until July 12, 1981 that her right arm symptoms derived from the work, the limitation period for filing a notice of claim could only then begin to run. Consequently, the trial Commissioner incorrectly held that her July 28, 1981 right arm notice was late.
The decision of the Commissioner below is reversed and the matter is remanded to the Sixth District for further proceedings in accordance with this opinion.
Commissioners Edward F. Bradley and Andrew Denuzze concur.