Opinion
CASE NO. 1450 CRB-5-92-7
JUNE 17, 1994
The claimant was represented by Peter F. Culver, Esq., Sorokin, Sorokin, Hyde Williams.
The respondents were represented by David C. Davis, Esq., and Ralph Russo, Esq., McGann, Bartlett Brown.
This Petition for Review from the July 2, 1992 Finding and Dismissal of the Commissioner for the Fifth District was heard May 21, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.
OPINION
The claimant has petitioned for review from the July 2, 1992 Finding and Dismissal in which the Commissioner for the Fifth District denied the claimant's Motion to Preclude and dismissed the claimant's claim for hearing loss. The pertinent facts are as follows.
The claimant was employed as a machine operator by the respondent employer in 1961. The claimant continued her employment with the respondent until March, 1990 when she was laid off. On or about February 22, 1988, the claimant's Notice of Claim was received by the respondent-employer. The Notice of Claim purported that the claimant sustained a hearing loss "within the last year." The claimant as a two year old child had sustained a hearing loss in her left ear.
Although not specifically found by the commissioner, the record indicates that the respondents did not file a Notice to Contest until on or about June 14, 1988, clearly beyond the period set out in Sec. 31-297 (b). However, the respondents contended in the proceedings before the commissioner that the claimant's claim was time barred under Sec. 31-294 and thus, the claimant's Motion to Preclude should not be granted. While the commissioner did not specifically find that the claim was time barred, he found the following:
Sec. 31-297 (b) provided: Whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury death and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee's right to receive compensation on any grounds or the extent of disability.
A. Claimant was employed by the Respondent from 1961 to 1990;
B. Claimant alleged hearing loss "within the last year" in February, 1988;
C. Claimant was deaf at the time of the 1982 audiogram;
D. Claimant did not suffer a compensable hearing loss subsequent to 1982;
E. No claim was made for any period except as set forth in Paragraph B above;
F. Claimant's Motion to Preclude should be Denied.
G. The claim should be Dismissed. It is so Ordered.
Thus, it appears that the commissioner's conclusion that the claimant's Motion to Preclude be denied is predicated on an inferrable finding that the claim was barred by the statute of non-claim provisions set out in Sec. 31-294. In the Notice of Claim the claimant specifically stated; "while in the employ of the Iseli Company, of Greystone Road, Terryville, Connecticut within the last year, while at said Greystone Road location, sustained injuries arising out of and in the course of employment, consisting of severe hearing injury loss . . . ." See Claimant's Exhibit 1. Sec. 31-294 provided at the time claimant's claim was filed: "No proceedings for compensation under the provision 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 . . . ."
This tribunal has held that for purposes of determining the timeliness of a claim predicated on a theory of repetitive trauma, the last day of exposure to the trauma inducing stimuli is the time from which the statute of non-claim is deemed to run. See e.g., Carvalko v. Bassick Company, 9 Conn. Workers' Comp. Rev. Op. 258, 767 CRD-4-88-9 (1991); Pich v. Pratt Whitney, 4 Conn. Workers' Comp. Rev. Op. 163, 354 CRD-6-84 (1988). The most recent endorsement of this construction is found in Crochiere v. Board of Education, 227 Conn. 333 (1993) and Borent v. State, 33 Conn. App. 495 (1994). In fact, we think Borent is strongly analogous to the instant matter.
Borent v. State, 33 Conn. App. 495 (1994) was decided by the Appellate Court after oral argument held May 21, 1993 was heard in the instant matter.
In Borent, the claimant filed a notice of claim alleging a hearing loss to both ears alleged to have occurred while employed by the respondent on August 2, 1988. The respondent did not file a disclaimer of liability within twenty days of its receipt of the notice of claim. Thereafter, the claimant filed a Motion to Preclude. The commissioner found that the respondent-employer had paid medical bills relating to claimant's hearing loss problems on January 15, and January 24, 1987. The commissioner then found "that the latest time that [claimant's] injury could have occurred was January 15, 1987." Id. at 497. The notice of claim was dated October 13, 1988 and as the notice was given more than one year after the latest time the injury could have occurred as found by the commissioner, the commissioner concluded that the claim was untimely and the Motion to Preclude could not lie. See Pelletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276, 281 (1988) cert. denied, 207 Conn. 805 (1988).
The Borent court affirmed this tribunal's ruling that the claimant's claim was timely under Sec. 31-294 as the claimant was exposed to the incidents of the repetitive trauma on August 2, 1988, and thus, the Motion to Preclude must be granted. In the instant matter, the commissioner found in paragraph #A that the claimant was employed by the respondent from 1961 to 1990. Thus, based on the Borent court's approval of our prior rulings that, "as matter of law, the date of injury of a repetitive trauma is the last day of exposure, which is usually the last date of employment," the commissioner's finding that the claimant's employment continued after February, 1988, i.e., until 1990, supports a conclusion that the claim was timely filed. Therefore, the Motion to Preclude should have been granted.
However, having concluded that the commissioner should have granted the Motion to Preclude we must next consider whether the trier erred in determining whether the claimant sustained a hearing loss in addition to that which she suffered in her left ear as a very young child. We do not think that the granting of the Motion to Preclude foreclosed the commissioner from inquiring into this issue. In Adzima v. UAC/Norden Division, 177 Conn. 107 (1979) our Supreme Court held that the preclusion of defenses provided by Sec. 31-297 (b) applied to the contest of liability but not to the extent of the disability claimed.
[T]o allocate to the employer the burden of contesting the extent of the employee's disability, within twenty days of the receipt of the employee's claim for compensation, would impose upon the employer the burden of developing medical evidence to the extent of the employee's disability or injury, which otherwise would develop only after a hearing at which the employee would have the burden of proving both a compensable injury and the extent of the disability." (citations omitted).
Id. at 115.
Therefore, the trier's evidentiary inquiry into the extent of the disability was not foreclosed by the respondent's failure to file a timely disclaimer of liability under Sec. 31-297(b). Thus, we must next determine whether the commissioner erred in his conclusion that the claimant did not sustain a hearing loss during the period set forth in her notice of claim. The appropriateness of the trier's conclusion as to this issue assessed in accordance with our Supreme Court's holding in Fair v. People's Savings Bank, 207 Conn. 535 (1988). In Fair, the Supreme Court held that our review is not de novo and is limited to determining whether the conclusion of the commissioner has a basis in the evidence, is based on unreasonable or impermissible factual inferences, or is contrary to law.
Thus, our review as to the issue of whether there was evidence to support the trier's conclusion is dependent upon the record before the trier. We note that in his Finding and Dismissal the commissioner stated that hearings were conducted "on August 30, 1989 and subsequent dates." The record which was forwarded on appeal contains the exhibits and transcripts for formal hearings held August 30, 1989 and November 8, 1990. However, our review of some of the exhibits in the record forwarded reflects that they were proffered at hearings held September 5, 1991 and May 26, 1992.
Our belief is further buttressed by the hearing reporter's transcript record forwarded as part of the file which indicated that formal hearings were held; August 30, 1989, November 8, 1990, September 5, 1991 and May 26, 1992 and that the appellant did not want or order the transcripts for the September 5, 1991 and May 26, 1992 formal hearings.
We therefore have before us an appellant's attack on the factual based conclusion of a commissioner and the appellant's failure to provide us with an adequate record on review. Clearly, our ability to review the appropriateness of the trier's conclusion is dependent upon a review of the entire record. As the appellant has failed to provide an adequate record for review any attack on the commissioner's conclusion as to the existence or non-existence of claimant's hearing loss is dismissed. See Practice Book Sec. 4061. See also, Petta v. Waterbury Hospital, 11 Conn. Workers' Comp. Rev. Op. 161, 1310 CRD-5-91-9 (1993);Weaver v. Jessman Motors, Inc., 8 Conn. Workers' Comp. Rev. Op. 138, 793 CRD-5-88-12 (1990).
We therefore reverse the commissioner's ruling on the claimant's Motion to Preclude but affirm his conclusion as to extent of the disability claimed, i.e., that the claimant did not sustain any hearing loss within one year prior to the notice of claim. The claimant's claim is therefore dismissed and the Commissioner's conclusion dismissing the claim is affirmed.
Commissioners George A. Waldron and Donald H. Doyle, Jr., concur.