QUINN v. KNAPP, 1470 CRB-8-92-7 (7-8-94)

WILLIAM B. QUINN, CLAIMANT-APPELLEE v. STANDARD KNAPP, EMPLOYER and LIBERTY MUTUAL INSURANCE CO., INSURER, RESPONDENTS-APPELLANTS

CASE NO. 1470 CRB-8-92-7Workers’ Compensation Commission
JULY 8, 1994

The claimant was represented by Margaret Corrigan, Esq. and Jason M. Dodge, Esq., Pomeranz, Drayton Stabnick.

The respondents were represented by Carolyn Signorelli, Esq., James D. Moran, Jr., Esq. and Scott Wilson Williams, Esq., Maher
Williams.

This Petition for Review from the July 21, 1992 Memorandum Re: Motion to Preclude of the Commissioner At Large acting for the Eighth District was heard March 26, 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

JESSE FRANKL, CHAIRMAN.

The respondents challenge the trial commissioner’s decision to grant the claimant’s Motion to Preclude. The respondents claim that the notice of claim improperly lists the date the claimant first missed work due to a claimed occupational stress condition as the date of injury. We affirm the trial commissioner.

The claimant was an employee of the respondent-employer for twenty-five years prior to February 7, 1992. The claimant was first put out of work by his treating psychologist on February 7, 1992 for a work-related exacerbation of a post-traumatic stress disorder from his Vietnam War service. The claimant’s Form 30-C notice of claim, delivered to the employer and to the Eighth District office on February 11, 1992, lists a workplace injury of “work-related stress” and a date of injury of February 7, 1992. Although the first date of the claimant’s incapacity was February 7, 1992, it is undisputed that the claimant’s last day of work was February 6, 1992. The respondents’ late-filed disclaimer prompted the claimant’s Motion to Preclude.

A claim of work-related stress is generally a claim of personal injury as a direct result of repetitive trauma incident to employment. Crochiere v. Board of Education, 227 Conn. 333, 351-53 (1993). In repetitive trauma cases, it is settled laws that the date of injury is the last day of exposure to the work related incidents of repetitive trauma, which is usually the last date of employment. Id., 354; Borent v. State, 33 Conn. App. 495, 499-500 (1994). Here, the claimant last worked on February 6, 1992. Consequently, that date, and not February 7, 1992, is the proper date of injury.[1]

In Pickard v. Manchester Gardens Condominium Ass’n Inc., 10 Conn. Workers’ Comp. Rev. Op. 216, 1331 CRD-1-91-9 (1992), we upheld the trial commissioner’s denial of preclusion where the notice of claim listed a date for the claimant’s alleged back injury and the evidence before the commissioner revealed uncertainty regarding that date. Pickard involved an accidental injury, that is, an injury which may be definitely located as to the time when and the place where the accident occurred. Hence, the claimant’s failure to properly list “the date . . . of the accident,” as required by Sec. 31-294, meant that the notice of claim did not meet the requirements of Sec. 31-294 and did not permit preclusion.

The present case, involving a notice claiming compensation for “work-related stress,” by contrast, alleges repetitive trauma. Section 31-294 does not require the disclosure of any specific date of injury in a notice of claim alleging repetitive trauma injury. While a date of injury, even in a repetitive trauma case, must be listed in a notice of claim in order to permit preclusion, otherwise an employer will not be able to investigate such a claim promptly; see Dubois v. General DynamicsCorp., 222 Conn. 62, 65-67 (1992); Menzies v. Fisher, 165 Conn. 338, 342-46 (1973); a de minimis inaccuracy in the date of injury in a repetitive trauma case, such as the inaccuracy in the notice in this case, will not run afoul of the requirements of Sec. 31-294 nor will it prevent a trial commissioner from granting preclusion. See Pereira v. State, 228 Conn. 535, 542-43 n. 8 (1994).[2]

Practical reasons exist for distinguishing between accidental injury cases and repetitive trauma cases regarding the precision with which the claimant lists the date of injury in the notice of claim. Preclusion and the accompanying irrebuttable presumption of compensability under General Statutes Sec. 31-297(b) are designed to encourage employers to investigate claims promptly. Dubois v. General Dynamics Corp., supra; Menzies v.Fisher, supra. We have previously concluded that “to investigate promptly a claimed [accidental] injury, an employer certainly needs to know the precise date of injury.” Pickard v. ManchesterGardens Condominium Ass’n, Inc., supra, 218.[3] The same cannot be said of repetitive trauma cases, however. In such cases, the injury process, by definition, has occurred over time. Knowledge of the precise date of injury in such cases may simply notify the employer of when the claimant ceased working for the employer.Crochiere v. Board of Education, supra, 354. Such information will not facilitate any subsequent investigation of the claim, as the investigation must necessarily focus on the weeks, months or years preceding the “date of injury.”

We therefore hold that the claim for occupational stress in the present case, a repetitive trauma injury, which listed the first date of incapacity as the date of injury, which date was only one day after the proper “date of injury” as recognized by our case law, sufficiently met the requirements of Sec. 31-294 to permit preclusion under Sec. 31-297(b). “[T]he claimed defect [in the notice] in no way prejudiced the [respondents] by hindering [their] ability to investigate the claim. . . . [O]n these facts, the plaintiff’s notice of claim was sufficient to trigger the defendant’s obligation to file a disclaimer.”Pereira v. State, supra, 542-43 n. 8 (1994). Because the respondents’ disclaimer of liability was not timely filed, the trial commissioner properly granted the claimant’s Motion to Preclude.

We, therefore, affirm the trial commissioner and deny the appeal.

Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.

[1] The claimant relies various cases which identify the date of first incapacity as the appropriate date of injury. None of these cases, however, arose in the context of determining the date of injury for purposes of compliance with the technical requirements of Section 31-294. In Rousu v. Collins Co., 114 Conn. 24 (1931), and Stevens v. Raymark Corporation/RaybestosManhattan, 28 Conn. App. 226, cert. denied, 223 Conn. 921 (1992), the date of incapacity was used to determine the date of injury for purposes of calculating the claimant’s average weekly wage and corresponding compensation rate. Additionally, the suggestion in O’Leary v. New Britain, 3 Conn. Workers’ Comp. Rev. Op. 108, 110, 236 CRD-6-83 (1988), also relied on by the claimant, that the date of injury in repetitive trauma cases is the date of first incapacity appears there in dicta and is contrary to our Supreme Court’s recent holding in this regard inCrochiere v. Board of Education, 227 Conn. 333 (1993). The respondents argue that treatment received by the claimant prior to his last date of employment is significant with respect to the identification of the proper date of injury for purposes of determining the timeliness of the notice of claim in this repetitive trauma case. That is not our law, however.Borent v. State, 33 Conn. App. 495 (1994). For the same reasons, the corrections sought by the respondents to the commissioner’s findings were properly rejected as they would not have altered the commissioner’s legal conclusion. Hill v. Pitney Bowes, Inc., 8 Conn. Workers’ Comp. Rev. Op. 98, 832 CRD-7-89-3 (1990).

[2] In Pereira v. State, 228 Conn. 535, 542-43 n. 8 (1994), our Supreme Court addressed the numerous rulings by this tribunal which held that preclusion under Sec. 31-297(b) was available only where a claimant’s written notice of claim strictly met all of the technical requirements of Sec. 31-294. See, e.g.,Salvaggio v. Candlewood Valley Bus Co., 6 Conn. Workers’ Comp. Rev. Op. 156, 731 CRD-7-88-5 (1989); Fuller v. Central PavingCo., 5 Conn. Workers’ Comp. Rev. Op. 92, 655 CRD-1-87 (1988). In so doing, our Supreme Court sought “to clarify a misconception on behalf of the review division regarding the standard by which the sufficiency of a notice of claim to trigger an employer’s obligation to respond under Sec. 31-297(b) should be judged”Pereira v. State, supra. Thus, our Supreme Court rejected the rule of strict compliance with the technical requirements of Sec. 31-294 as unsupported by the language or legislative history of Sec. 31-297(b), concluding instead that “if the notice of claim is sufficient to allow the employer to make a timely investigation of the claim, it triggers the employer’s obligation to file a disclaimer.” Id.

[3] But see Pereira v. State, 228 Conn. 535, 542-43 n. 8 (1994).