Opinion
CASE NO. 3318 CRB-3-96-4
JUNE 18, 1997
The claimant was represented by Scott Wilson Williams, Esq., Maher Williams.
The respondent was represented by Patrick Noonan, Esq., Delaney, Zemetis, Donahue, Durham Noonan, P.C.
This Petition for Review from the March 26, 1996 Finding and Dismissal of the Commissioner acting for the Third District was heard November 22, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Amado J. Vargas and Robin L. Wilson.
OPINION
The claimant has petitioned for review from the March 26, 1996 Finding and Dismissal of the Commissioner acting for the Third District. In that decision, the trial commissioner concluded that the claimant failed to file a timely notice of claim for a right knee injury as required by § 31-294c. In support of his appeal, the claimant contends that notice of his claim for his right knee injury was timely because the claimant did not have knowledge that the injury was related to his work until May 13, 1993. In addition, the claimant contends that two exceptions to the one-year statute of limitation are applicable to this matter: (1) that an informal hearing was held within one year of the injury; and (2) that the employer furnished medical care for said injury within one year of the injury.
The trial commissioner found the following relevant facts. The claimant was employed by the respondent from 1973 until December 6, 1991. All of his years of employment involved masonry work which required him to work on his knees. In 1980 the claimant was treated for right knee pain by Dr. Lynch, who diagnosed arthritic changes to the right knee. The claimant was again treated for right knee pain in 1982. On December 6, 1991, the claimant's last day of work, he sustained a work related injury to his left knee. The respondent accepted liability for the left knee. Dr. Gibson, the treating physician for the left knee, issued a report on November 2, 1992 which indicated that the claimant had complaints regarding his right knee, which Dr. Gibson found to be not related to work. Subsequently, on May 13, 1993, Dr. Gibson indicated that he had reviewed medical reports from the Yale Health Service Clinic and came to the opinion that the claimant's right knee condition was related to repetitive work activities. (Finding E). The Yale Health Service Clinic records do not indicate that the claimant had a repetitive trauma injury to his right knee. (Finding F).
We note that the claimant was asked ". . . do you recall Dr. Gibson advising you at least in or around November of 1992 that your right knee, the right knee problem, was not work related?" The claimant answered: "He never told me that." (11/1/95 TR. at p. 6).
Section 31-294c, which sets forth the statute of limitations for the filing of workers' compensation claims, provides in pertinent part:
No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury. . . .
This statute is jurisdictional in nature, and prevents a workers' compensation commissioner from considering any claim that is not timely filed. Peters v. State of Connecticut, 10 Conn. Workers' Comp. Rev. Op. 32, 34, 1103 CRD-3-90-8 (Jan. 13, 1992). Section 31-294c requires a notice of claim for compensation to be filed within one year from the date of injury in repetitive trauma cases. Crochiere v. Board of Education, 227 Conn. 333, 353 (1993). "As a matter of law, the date of injury of a repetitive trauma is the last day of exposure, which is usually the last day of employment." Borent v. State, 33 Conn. App. 495, 499 (1994).
In the instant case, it is not clear whether or not the trial commissioner found the claimant's right knee condition to be a repetitive trauma injury. (See Finding F).
In support of his appeal, the claimant relies on Santry v. Fermont Division, 13 Conn. Workers' Comp. Rev. Op. 230, 1768 CRB-4-93-6 (April 13, 1995). However, this board has overruled the doctrine in repetitive trauma cases that delays the running of the statute of non-claim until the connection between the employment and the disability has or should have been realized by the claimant. Dorsey v. UTC/Norden Systems, 15 Conn. Workers' Comp. Rev. Op. 47, 2268 CRB-7-95-1 (September 6, 1996) (Chairman Frankl dissenting); see also Discuillo v. Stone Webster, 43 Conn. App. 224, 227 (1996) (whether a heart attack is labeled accidental injury or repetitive stress injury is of no consequence, as one-year filing period began running on last date of claimant's employment).
We note that Dorsey, supra, is presently on appeal to the Appellate Court. In the instant case, however, we need not reach the issue inDorsey regarding whether lack of knowledge may extend the statute of limitation period for repetitive trauma injuries. This is because the trial commissioner specifically found that the claimant "knew or should have known that his right knee condition might have been related to his masonry work at Yale when he stopped working for them on December 6, 1991." (Finding G). In fact, the claimant testified that he had trouble with his right knee from 1978 or 1979 onward and that he believed that it was related to his employment because he had to spend a fair amount of time on his knees as part of his job duties. (11/1/95 TR. at p. 14, -16; see also 3/29/94 TR. at p. 30). Moreover, Dr. Gibson testified that the claimant had advised him during his employment that both knees had been subjected to repetitive trauma at work. (4/26/95 Deposition of Dr. Gibson at p. 9). Thus, the trial commissioner's determination that the claimant knew or should have known that his right knee was related to his work on or before December 6, 1991 is supported by the record. See Tobin v. Kimberly-Clark Corp., Case No. 2045 CRB-7-94-5 (Oct. 18, 1996) (fact that claimant was not completely certain of diagnosis did not reduce awareness of causal link to a mere suspicion).
Section 31-294c provides several exceptions to the notice of claim requirement, including where "there has been a hearing or a written request for a hearing" within one year of the injury. In addition, § 31-294c provides an exception if "within the applicable period an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as provided in 31-294d." The claimant contends that both of these exceptions apply to the claimant's right knee injury. In order to apply to the instant case, the claimant must have satisfied either of these two exceptions within one year following the date of injury. If the trial commissioner determines that the right knee injury constituted a repetitive trauma injury, then the date of injury would be December 6, 1991 if the trial commissioner determines that this was the last date of exposure. SeeKnapp v. New London, 44 Conn. App. 465 (1997); see also Borent, supra.
We note that the payment of medical services by an employer-provided insurance policy is insufficient to constitute the "furnishing of medical care" within the meaning of § 31-294c.Griffith-Patton v. State of Connecticut, 13 Conn. Workers' Comp. Rev. Op. 177, 1888 CRB-1-93-11 (March 10, 1995), aff'd., 41 Conn. App. 911 (1996) (per curiam); cert. denied 237 Conn. 930 (1996).
As the trial commissioner has not made any findings of fact regarding these two issues, we are unable to adequately review them on appeal. SeeCharette v. Jensen Mobile Home, 10 Conn. Workers' Comp. Rev. Op. 1, 936 CRD-6-89-11 (March 19, 1991). Accordingly, we remand this matter to the trial commissioner in order to address whether either of these two exceptions apply to the instant case.
This matter is remanded to the trial commissioner in accordance with the above. In all other respects, the trial commissioner's decision is affirmed.
Commissioner Amado J. Vargas and Robin L. Wilson concur.