Opinion
CASE NO. 751 CRD-4-88-7
NOVEMBER 30, 1989
The claimant was represented by Richard Gross, Esq., Sklarz Early, P.C.
The respondents were represented by John Greiner, Esq., Murphy and Beane.
This Petition for Review from the July 11, 1988 Finding and Award of the Commissioner for the Fourth District was heard August 18, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew P. Denuzze and James J. Metro.
OPINION
Claimant was an employee of the respondent-employer from 1954 until retirement in January, 1986. The Fourth District Commissioner in a July 11, 1988 Finding and Award awarded the claimant benefits for a 29.4% binaural hearing loss. In that Finding and Award the date of injury was found to be January, 1986, claimant's retirement date.
Respondents appeal contests the conclusion as to date of injury, Pich v. Pratt Whitney, 4 Conn. Workers' Comp. Rev. Op. 163, 354 CRD-6-84 (1988) considered this issue. Pich, relying on O'Leary v. City of New Britain, 3 Conn. Workers' Comp. Rev. Op. 108, 236 CRD-6-83 (1986), held that "[c]laimant continued to be exposed to the plant noise until the last day worked." Claimant argues Pich is dispositive of the issue raised in the instant case.
Appellants contend Pich merely sets out a rebuttable presumption that a hearing loss injury is a continuous process due to exposure to industrial noise, a process only completed when the employee is last exposed to industrial noise, i.e. the date of retirement. They contend that in the instant case a September 28, 1983 audiogram showed a 32% binaural hearing loss. As the earlier audiogram demonstrated a greater hearing loss, they argue, the rebuttable presumption of Pich was overcome.
This argument attacks a factual finding of the trial commissioner. However, the respondents filed no Motion to Correct and, thus, the facts found must remain as determined by the trial commissioner. See Hall v. Dayton Rogers Corp., 6 Conn. Workers' Comp. Rev. Op. 74, 578 CHD-7-87 (1989) citing Mack v. Blake Drug Co., 152 Conn. 523 (1965). All we then must consider is whether the commissioner's conclusion was without evidence or contrary to law. Fair v. People' Savings Bank, 207 Conn. 535 (1988). We think there was such evidence and the conclusion was not contrary to law.
Therefore, the July 11, 1988 Finding and Award is affirmed.
Commissioners Andrew P. Denuzze and James J. Metro concur.