Opinion
CASE NO. 236 CRD-6-83
DECEMBER 2, 1986
The claimant was represented by Harold J. Geragosian, Esq.
Employer was represented by Joseph E. Skelly, Jr., Esq., Office of Corporation Counsel.
Respondent-Insurer, Travelers Insurance Company was represented by Robert F. Beach, Jr., Naab Danforth.
Respondent-Insurer, Aetna Life Casualty was represented by Robert Hyland, Esq.
This Petition for Review from the March 11, 1983 Finding and Award of the Commissioner-At-Large, Acting For the Sixth District, was heard September 23, 1983 by a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Gerald and Frank Verrilli.
FINDING AND AWARD
1-10. Paragraphs 1 through 10 of the trial Commissioner's Finding and Award are made paragraphs 1 through 10 of this Division's Finding and Award.
11. The claimant's compensation rate shall be computed according to the average weekly wage in the six months preceding October 18, 1981.
Wherefore it is ordered that the respondents pay 19.5 week of specific injury compensation as follows:
A. The City of New Britain to pay 62.1% of the Award.
B. Aetna Life Casualty to pay 29.7% of the Award.
C. Travelers to pay 8.2% of the Award.
OPINION
A hearing loss is here claimed to have resulted from noise exposure at work with the City of New Britain. Claimant had been employed by the City since 1958 and filed this claim October 19, 1981. The trial Commissioner awarded 19.5 weeks permanent partial benefits pursuant to Section 31-308(b)(6) for 37.5% loss of hearing in the left ear. The commissioner found that there were three different entities responsible for worker compensation liability during the period of exposure to the noisy construction equipment: the City of New Britain as self insured from January 13, 1958 to March 31, 1968, 531 weeks or 41.8% of the total potential exposure; Aetna Life Casualty, April 1, 1968 to June 30, 1975, 377 weeks, 29.7% of the exposure; Travelers Insurance Company, July 1, 1975 to June 30, 1977, 104 weeks, 8.2% of the exposure; and against the City of New Britain, July 1, 1977 to June 15, 1982, 258 weeks, 20.3% of the exposure. Therefore in his award liability for benefits due claimant was apportioned, 62.1% to the City of New Britain, 29.7% to Aetna and 8.2% to Travelers. The Commissioner concluded further that each of the entities found responsible would pay a different weekly compensation rate based on the highest average weekly wage pertaining to that entity's period of responsibility.
The Appeal and Cross-Appeal raise various issues: (1) Whether there was jurisdiction to hear the matter as it was alleged that no timely notice of claim had been filed under Sec. 31-294; (2) Whether the Commissioner erred in finding monaural loss rather than binaural; (3) Whether the respondents should have been precluded from raising defenses since none of them filed a timely disclaimer of liability under Sec. 31-297 (b), C.G.S.; (4) Whether the Commissioner correctly computed the compensation rate for the benefits awarded; (5) Whether claimant should be awarded Attorney's Fees.
The respondents argued with reference to issue (1) that claimant first saw a physician about suspected loss of hearing in 1977 and that therefore his 1981 notice of claim for industrial hearing loss is too late to come within the one year period set down in Sec. 31-294. The short answer to such an argument is that the limitation period runs from the time when there is a known manifestation of symptom, Bremner v. Eidlitz Sons, Inc., 118 Conn. 666, 670-71 (1934) Cortes v. Allegheny Ludlum Steel Corp., 61-CRD-3-81, 1 Conn. Workers' Comp. Rev. Op. 173 (1982). The evidence before the trial Commissioner indicated that the claimant did not become aware of any causal relationship between the hearing impairment and the workplace environment until 1981. That knowledge marks the first known manifestation of symptom. In addition the General Assembly amended Sec. 31-307, C.G.S., P.A. 80-124, in 1980 to provide, "In the case of an occupational the time of injury shall be the date of total or partial incapacity to work as a result of such disease." Whether the permanent hearing loss here involved results from "repetitive trauma" or "occupational disease" as defined in Sec. 31-275 (8) and (11), we think this 1980 legislative enactment applies also to the start of the limitation period in Sec. 31-294.
On the second issue of monaural loss Sec. 31-308(b)(6) versus binaural loss, Sec. 31-308(b)(5). The Commissioner had medical evidence before him indicating only the left ear and not in the right ear. It was within his discretion to credit that evidence, Battey v. Osborne, 96 Conn. 633, 634 (1921), Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). That there might have been other evidence concerning right ear loss does not give us the liberty to overturn the commissioner's Finding.
Claimant's cross-appeal raises issue (3), preclusion under Sec. 31-297(b). The Finding does not indicate whether the October 18, 1981 written notice was served in compliance with Sec. 31-321 C.G.S. We have held such compliance is a necessary condition precedent to the default provision of Sec. 31-297(b), Timothy v. Upjohn, 150 CRD-3-82, 2 Conn. Workers' Comp. Rev. Op. 1 (1983). Failing such a Finding, there can be no basis for a preclusion ruling. Parenthetically the trial Commissioner did find compensability; thus the omission of a preclusion ruling would seem harmless error at best.
The most significant attack on the award by the cross-appellant is issue (4), the alleged improper computation of the claimant's compensation rate. The Commissioner awarded benefits based on claimant's highest average weekly wage during each of four separate exposure periods. We disagree. The appropriate award should be based on the average weekly wage of the claimant at the time of the injury, 31-310 C.G.S. Here there is no one specific date when the claimant injured. Claimant's injury was due to exposure over period of time. The appropriate calculation of the average weekly wage relates to the time of the manifestation of the injury, Rousu v. Collins Co., 114 Conn. 24 (1931). Our Supreme Court there held that the date of "injury" for wage computation purposes under the predecessor to 31-310 was the date that incapacity from the injury occurred:
". . . The just measure of the value of the earning power of an employee and the correlative loss incurred by him would seem to relate to his earnings at the time the loss occurs through incapacity to work, rather than his earnings at an earlier time, perhaps so remote that, through changing conditions, personal or industrial, or both, his earnings at that time no longer accurately or correctly reflect the present value of the earning power of the workman." Rousu v. Collin, supra, 31.
In the instant matter the incapacity for purposes of wage calculation occurred October 18, 1981. This date conforms to the case law as expressed in Rousu and also to the previously cited 1980 amendment, P.A. 80-124.
Finally, we deal with issue (5), claimant's request for Attorney's fees. The Commissioner's Finding is silent on that issue; we therefore must assume that the Commissioner denied the claim. Sec. 31-300 C.G.S. is the applicable statutory provision. This division discussed the subject in Robinson v. Allied Grocers Cooperative, Inc., 68 CRD-1-81, 1 Conn. Workers' Comp. Rev. Op. 132 (1982), aff'd 39 Conn. Sup. 386 (1983). Attorney's fees may only be awarded if there is an unreasonable contest. The trial Commissioner did not draw such a conclusion. Our own opinion demonstrates that there was a reasonable basis for contest on the issues involved. Therefore, no occasion arises for an Award of Attorney's Fees.
The Award of the trial Commissioner is affirmed but the applicable compensation rate is modified to conform to this opinion.
Commissioners Gerald Kolinsky and Frank Verrilli concur.