Opinion
CASE NO. 767 CRD-4-88-9
DECEMBER 2, 1991
The claimant was represented by Joseph F. Carvalko, Jr., Esq., Dice, Miniter Carvalko, P.C.
The respondent-employer American Motorists Insurance Company were represented by Edward S. Downes, Jr., Esq.
The respondent-employer and Travelers Insurance Company were represented by Jason Dodge, Esq., Pomeranz, Drayton and Stabnick.
This Petition for Review from the September 6, 1988 Finding and Award of the Chairman, John Arcudi acting for the Fourth District was heard on September 29, 1989 before a Compensation Review Division panel consisting of Commissioners James J. Metro, Gerald Kolinsky and A. Thomas White, Jr.
OPINION
Claimant was employed by the respondent employer from April 17, 1950 to his separation June 30, 1985. On January 23, 1986, the claimant filed a Form 30C — Notice For Compensation, alleging "SEVERE LOSS OF HEARING ON BOTH SIDES, while working at The Bassick Company. Also TINNITUS." That notice alleges that injuries occurred between February 6, 1984 and February 6, 1985. However, the evidence indicated that the hearing loss was sustained during the entire period of employment, i.e. 1950 through 1985, Finding, paragraphs 3, 8, 9, 11, 12, 13, 14, 15, 24, 26, 16, 19.
During those periods of time claimant worked in numerous departments and in various capacities for the employer, most of which subjected the claimant to loud and excessive noise levels. The trial commissioner found that while claimant may have been exposed to excessive noise levels in the military for three years during the Second World War, his exposure to excessive noise at the Bassick Company for thirty five years and his subsequent hearing loss was compensable in total as relates to a 55% binaural hearing loss.
The September 8, 1988 decision awarded the claimant 85.8 weeks of specific benefits based on a 55% binaural hearing loss.
Respondents Bassick Company and the Travelers Insurance Company appealed on the basis that the trier had erred in not reaching any decision concerning the Statute of Non-claim defense under C.G.S. Sec. 31-294 C.G.S. for employment prior to February 6, 1984 with the Bassick Company.
Simply stated, the respondent is of the position that the claimant, of his own volition limited his claim for benefits to that period of time set forth on his, Form 30C, i.e. February 6, 1984 to February 6, 1985 and was late in filing a claim for injuries prior to 1984.
In the instant case we note that the trial Commissioner found that the Claimant's date of injury was June 30, 1985 as that was the last date of exposure to the noisy environment. See paragraph #26. Such a conclusion by the trial Commissioner is not contrary to previous decisions by this tribunal. See e.g., Delos v. United Illuminating, 7 Conn. Workers' Comp. Rev. Op. 111, 751 CRD-88-7 (1989); Pich v. Pratt Whitney, 4 Conn. Workers' Comp. Rev. Op. 163, 354 CRD 6-84 (1988). Further, this tribunal has in the past held that where a claimant has failed to prevail under one theory of a compensable injury, the claimant may be given an opportunity to litigate under another theory if it seems plausible that the claimant may be able to establish a claim under such an alternative theory. See Leary v. A P Groceries, 6 Conn. Workers' Comp. Rev. Op. 76, 582 CRD-5-87 (1989). As our Supreme Court noted in Glodenis v. American Brass Co., 118 Conn. 29, 34 (1934)[.]
Indeed, it is no doubt often true that the interests of a claimant are best served by a termination of the proceedings even though it be adverse to him. But we do not approach compensation proceedings in quite the same way we do ordinary court cases, even though upon a case presented upon an appeal a claimant has failed to establish his right to compensation, if it appears reasonable to believe that upon a further hearing he may be able to do so, the court may remand the case for further proceedings rather than for a dismissal of the claim. (citations omitted)
Finally we note in Grady v. GL Oxygen Medical Co., 6 Conn. Workers' Comp. Rev. Op. 12, 572 CRD-6-87 (1988) a case involving a claim for injuries due to repetitive trauma we held:
Repetitive trauma injuries by their very nature as recognized in the statutory definition cannot be 'definitely located as to . . . time and . . . place.' Were we then to construe Sec. 31-294 as requiring claimants to give specific dates (underlining ours) and places of accidents in their notices of claims for repetitive trauma injuries it would effectively negate legislative intent as expressed in Sec. 31-275(8). Under such a construction, no claimant could ever perfect a repetitive trauma claim."
Thus even if the dates specified on the claimant's notice of claim did not state the dates of repetitive trauma which were ultimately found by the trial commissioner to be the date of injury no error was committed as long as the notice of claim was given within one year from the date which the trial commissioner actually found was the date of injury. Our conclusion is consistent with previous decisions as noted above and the spirit of our Workers' Compensation law.
We therefore affirm the Finding and Award of the trial Commissioner.
Commissioners Gerald Kolinsky and A. Thomas White, Jr., concur.