Russell v. Mystic Seaport Museum, Inc.

DUPONT, J.,

dissenting. I respectfully dissent. The primary issue in this appeal is whether the plaintiffs notice of claim for workers’ compensation complied with General Statutes § 31-294c (a). That notice, dated November 30, 1994, sought compensation for “repetitive trauma to left (non-master) shoulder while working as an engineer,” and stated that the date of injury was “prior to 9/23/94.” The purpose of such a notice is to allow an employer to investigate a worker’s claim for compensation promptly to avoid unnecessary delay in an adjudication of a worker’s claim. Whether a particular notice of claim is sufficient to allow such a timely investigation is a question of law. Chase v. State, 45 Conn. App. 499, 508, 696 A.2d 1299 (1997). I conclude that the notice was sufficient for that purpose and would therefore hold that the commissioner should not have denied the plaintiffs motion to preclude, and that the board should not have affirmed the commissioner’s decision.1

The plaintiff, in his notice of claim, does not assert a claim for compensation for the accidental injury that occurred on May 2, 1991. He claims instead compensation for a repetitive trauma, for which no precise date is possible. See Chase v. State, supra, 45 Conn. App. 507. In this case, despite the plaintiffs claim for compensation for a repetitive trauma, the defendant has consistently treated the plaintiffs notice of claim as *272one for an accidental injury occurring on a specific date for both the purpose of testing the timeliness of the notice and testing its sufficiency to allow a timely investigation.2

The “type of injury alleged in the notice of claim” of an employee is considered “accurate for the purpose of reviewing the timeliness” of a plaintiff s claim. Borent v. State, 33 Conn. App. 495, 499, 636 A.2d 392 (1994). Because the plaintiffs claim is one for repetitive trauma, it should have been filed within one year of the last date of exposure to the act or trauma, which is usually, but not always, the date on which the claimant last worked. Discuillo v. Stone & Webster, 242 Conn. 570, 581, 698 A.2d 873 (1997); Crochiere v. Board of Education, 227 Conn. 333, 353-54, 630 A.2d 1027 (1993). The plaintiffs claim for compensation for repetitive trauma met the statute of limitations prescribed by § 31-294c (a) because it was filed within one year of the last date of exposure to the trauma.3

The next question to decide is whether the words, “prior to 9/23/94,” gave sufficient information to the employer to investigate the plaintiffs claim.

The commissioner found that “[subsequent to May 2, 1991, and until the fall of 1994 the plaintiff experienced *273numerous total and/or partial dislocations of his left shoulder. These dislocations occurred at work when the claimant was carrying lumber or heavy pipes on his shoulder or when he was manipulating steam valves,” and that he “suffered a partial dislocation in July, 1994, while turning a valve during a test of the steam generator at work,” and that the plaintiffs “last full dislocation at work occurred in August, 1994, while manipulating the main steam valve.” The commissioner also found that the plaintiff had filed an employee incident report immediately following his May 2, 1991 fall, and that he had made his employer’s director of human resources and his immediate supervisor aware of problems with his shoulder in September, 1993. On the basis of these facts, the commissioner, nevertheless, found that all of the left shoulder dislocations were a “recurrence of the May 2, 1991 specific injury,” rather than a result of repetitive trauma.

The words, “prior to 9/23/94,” gave the employer notice that the repetitive trauma injury occurred over time, prior to September 23,1994, and after May 2,1991. The nature of a repetitive trauma injury is such that it is often impossible to ascertain a specific date of injury. Such an injury consists of repetitive trauma that begins with an initial trauma and is ongoing until the last instance of trauma. Discuillo v. Stone & Webster, supra, 242 Conn. 581 n.11.

Here, the employer was aware of new, separate, identifiable, work-related occurrences of trauma, in addition to the initial trauma of the fall on May 2, 1991. It paid for medical treatment of the plaintiffs shoulder after September, 1993. There were separate, subsequent intervening acts or trauma, while the plaintiff was working, to the same shoulder after the plaintiffs initial *274injury, as found by the commissioner. This is not a case of a recurrence of the initial dislocation of the plaintiffs shoulder independent of any subsequent trauma. It was not necessary for the plaintiff to allege a specific date for his repetitive trauma injury. It was sufficient to allege, given the facts of this case, that he incurred the injury “on or before” a specific date. Chase v. State, supra, 45 Conn. App. 506. The defendant could focus its investigation on a particular period of time, and had the requisite information to do so.

In my opinion, the conclusions of the board resulted from an incorrect application of the law, and I would grant the plaintiffs motion to preclude the defendants from contesting the claim because the plaintiffs notice of claim for compensation for his repetitive trauma injury was timely and gave the defendant an opportunity to investigate the claim. Also, I would conclude that the plaintiffs injury was causally related to repetitive trauma based on the subsidiary facts found by the commissioner.

In view of my conclusion that the notice of claim complied with § 3 l-294c, the issue discussed in part III of the majority opinion becomes irrelevant.

The defendants filed three notices contesting liability for the plaintiffs recommended surgery performed on October 24,1994. Two of the disclaimer notices predated the plaintiffs notice of claim for compensation and all of the defendants’ disclaimers referenced the May 2,1991 accident, rather than the plaintiffs repetitive trauma claim relating to an injury prior to September 23, 1994.

Because the commissioner found that the plaintiffs injury was not due to a repetitive trauma, she made no finding as to the last date of exposure to the repetitive trauma. Although October 21, 1994, was the last day the plaintiff worked, it is not known whether September 23, 1994, was the last time the plaintiff was exposed to a repetitive trauma at work. The plaintiff may not have been assigned to his usual duties between September 23 and October 21, making it possible that the last day worked was not the last day he was exposed to the trauma. The last date of exposure might also *273have been sometime in August, 1994, which was when the commissioner found (hat the plaintiffs “last full dislocation at work occurred.”