Russell v. Mystic Seaport Museum

• Decision Date: 16 March 1999
• Citation: 730 A.2d 66,52 Conn. App. 255
• Court: Connecticut Court of Appeals
• Parties: (Conn.App. 1999) ROBERT RUSSELL v. MYSTIC SEAPORT MUSEUM, INC., ET AL. 17747

730 A.2d 66 (Conn.App. 1999)

ROBERT RUSSELL v. MYSTIC SEAPORT MUSEUM, INC., ET AL.

17747

Connecticut Court of Appeals

Argued December 4, 1998

March 16, 1999

Amy M. Stone, with whom, on the brief, was Nathan Julian Shafner, for the appellant (plaintiff). Joseph E. Skelly, Jr., for the appellees (defendants).

Foti, Landau and Dupont, Js.

Foti, J.

OPINION

The plaintiff, Robert Russell, appeals from the decision of the compensation review board (board) affirming the decision of the workers' compensation commissioner for the second district (commissioner) (1) denying the plaintiff's motion to preclude, (2) dismissing his claim for failing to sustain his burden of proof that he suffered from a repetitive trauma injury and (3) dismissing as untimely filed his claim for workers' compensation benefits for his May 2, 1991 injury. We affirm the decision of the board.

The following facts are relevant to this appeal. The commissioner held a hearing on July 25, 1995, and found the following facts. The plaintiff was, at all relevant times, an employee of the defendant, Mystic Seaport Museum, Inc. (Mystic). ¹ On May 2, 1991, the plaintiff was working as an engineer aboard the steamboat Sabino. On that day, the plaintiff was reassembling a valve that had been taken apart. To get a better grip on the valve assembly, he changed his position and then fell approximately four and one-half feet to the deck plating. As he fell, he hit his left elbow on a pipe, shoving his left arm behind his head and dislocating his shoulder. After he landed, the plaintiff reduced the dislocation himself.

After the accident, the plaintiff submitted an employee incident report and continued working the rest of his shift. The plaintiff did not seek medical treatment or miss any time from work because of the injury. Mystic completed an employer's first report of occupational injury or disease on May 8, 1991.

The plaintiff's typical work day included ten to twelve hour shifts during which he was responsible for the regular maintenance of the Sabino and stoking the ship's coal burning boiler. Additionally, he spent approximately one half of his work day turning valves, including some above his head, requiring full extension of his arm.

The plaintiff had suffered between twenty to thirty partial and full dislocations of his left shoulder between the time of the accident and October, 1994, some of which happened while he was working. The plaintiff first notified his supervisor, Dick Lotz, and the director of human resources, Mark Duland, in September, 1993, that he was having trouble with his shoulder. The plaintiff informed Duland of the May, 1991 fall and Duland told him to see a physician and to submit the bills to Mystic. The plaintiff saw his personal physician, Job Sandoval, on September 24, 1993. Sandoval prescribed strengthening exercises for the plaintiff. In November, 1993, the plaintiff informed Duland that he was not improving and returned to Sandoval, who referred him to an orthopedic surgeon, J. A. Hallberg. On April 19, 1994, Hallberg suggested that the plaintiff undergo corrective shoulder surgery.

The plaintiff first informed Mystic that he wanted to file a workers' compensation claim for the May, 1991 fall in October, 1994. The plaintiff decided to have the corrective surgery on October 24, 1994. His last day at work prior to the surgery was October 21, 1994.

The plaintiff filed a notice of claim, and the commissioner held a hearing on July 25, 1995. The commissioner denied his motion to preclude and determined that the plaintiff did not suffer a compensable injury. The plaintiff then appealed from the commissioner's decision to the board. The board affirmed the commissioner's decision in an opinion dated October 24, 1997. The plaintiff appeals from that decision. Additional facts will be set forth as they become necessary.

I.

The plaintiff claims first that his motion to preclude the defendant from contesting his claim was improperly denied. The plaintiff claims that (1) the commissioner improperly concluded that his notice of claim failed to comply substantially with the notice requirements of General Statutes §§ 31-294c (a) ² in that the notice did not state any date of injury and (2) the defendant's notice contesting compensability was insufficient because it (a) failed to list the correct date of injury and (b) failed to state substantially the specific grounds on which the defendant was denying compensability. We disagree with the plaintiff.

We begin by addressing the appropriate standard of review. The board "`hear[s] the appeal on the record of the hearing before the commissioner' unless it determines, under the statute, to take `additional evidence or testimony.' General Statutes §§ 31-301 (a)." Castro v. Viera, 207 Conn. 420, 440, 541 A.2d 1216 (1988). "The decision of the compensation review [board] must stand unless it results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them." (Internal quotation marks omitted.) Id.

A.

The plaintiff filed a notice of claim for a repetitive trauma injury occurring "prior to [September 23, 1994]." The notice was received by the defendant on December 2, 1994. The notice of claim states: "Notice is hereby given that the undersigned [the plaintiff], who while in the employ of Mystic Seaport Museum at Mystic prior to [September 23, 1994], sustained injuries arising out of and in the course of his/her employment as follows: `Repetitive trauma to left (non-master) shoulder while working as an engineer.'"

Section 31-294c sets forth the prerequisites for succeeding on a motion to preclude. For an injured employee to succeed on a motion to preclude, the employee must file a notice of claim within one year from the date of the injury. General Statutes §§ 31-294c (a). The employer also must file a notice contesting compensability within twenty-eight days after it receives the notice of claim from the employee. General Statutes §§ 31-294c (b).

The purpose of the preclusion statute was thoroughly discussed by our Supreme Court in Menzies v. Fisher, 165 Conn. 338, 334 A.2d 452 (1973). The Supreme Court stated: "The object which the legislature sought to accomplish is plain. Section 31-297 (b) [the predecessor to §§ 31-294c] was amended to ensure (1) that employers would bear the burden of investigating a claim promptly and (2) that employees would be timely apprised of the specific reasons for the denial of their claim. These effects would, in turn, diminish delays in the proceedings, discourage arbitrary refusal of bona fide claims and narrow the legal issues which were to be contested. To narrow the scope of the controversy would lighten the burden on the claimant in terms of legal expenses, a result which the legislature plainly desired to accomplish by its 1967 amendments. See 12 H.R. Proc., Pt. 9, 1967 Sess., pp. 4037-38 . . . ." Menzies v. Fisher, supra, 343-44.

The criteria of §§ 31-294c need not be perfectly met for a claimant's notice of claim to be sufficient. Pereira v. State, 228 Conn. 535, 542-43 n.8, 637 A.2d 392 (1994). Minor defects will be overlooked as long as the employer will not be unduly prejudiced. Id.

In the present case, the plaintiff filed his notice of claim listing the date of injury as "prior to [September 23, 1994]." This date, however, is not the proper date of injury for the purposes of §§ 31-294c (a). The review board has consistently taken the position that, as a matter of law, the date of injury of a repetitive trauma is the last day of exposure -- most commonly the last date of employment; see Sanford v. Clinton Public Schools, 03446 CRB-03-96-10 (March 5, 1998); Carvalko v. Bassick Co., 9 Conn. Workers' Comp. Rev. Op. 258 (1991); Dorsett v. General Dynamics Corp., 8 Conn. Workers' Comp. Rev. Op. 77, aff'd, 23 Conn. App. 827, 583 A.2d 484 (1990), cert. denied, 218 Conn. 901, 588 A.2d 1076 (1991); our courts have endorsed this position. See Discuillo v. Stone & Webster, 242 Conn. 570, 581, 698 A.2d 873 (1997); Crochiere v. Board of Education, 227 Conn. 333, 354, 630 A.2d 1027 (1993); Borent v. State, 33 Conn. App. 495, 499, 636 A.2d 392 (1994).

In the present case, the plaintiff's last day at work was October 21, 1994, the Friday before his shoulder surgery. As a matter of law, October 21, 1994, was the date of the plaintiff's injury because that was the last day of exposure. September 23, 1994, has no legal significance. Although the plaintiff claims that September 23, 1994, was a proper date because it encompassed all injuries that he sustained as of that date, we disagree. The case law is clear on when the legal date of injury occurs. Additionally, §§ 31-294c (a) requires that the claimant file a notice of claim within one year of "the date of the accident." (Emphasis added.)

The plaintiff claims that listing October 21, 1994, as the date of injury would not have provided the defendants with any additional information with which to investigate the plaintiff's claim. If we were to hold that listing a date nearly one month prior to the date of injury was sufficient notice, numerous problems would result. Future employers would be faced with the situation in which an employee who was suffering from a repetitive trauma injury could file a claim with a date prior to his date of injury, then suffer additional repetitive injuries. The employer would not be able to investigate the employee's claim fully and accordingly would be unable to state sufficiently any reasons for denying compensability for any additional injuries.

While this court held in Chase v. State, 45 Conn. App. 499, 506, 696 A.2d 1299 (1997), that a notice of claim using the language "on or before July 19, 1989," did not invalidate that notice, we did state that "if the results of the defendant's investigation did not reveal an accidental injury on the precise date given in the notice, or in the several...