Opinion
CASE NO. 354 CRD-6-84
MARCH 9, 1988
Claimant was represented by Jonathan L. Gould, Esq., Kestell, Pogue Gould.
Respondents were represented by Brian Prindle, Esq.
This Petition for Review from the October 9, 1984 Finding and Award of the Commissioner for the Sixth District was heard May 2, 1986 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Rhoda Loeb and Gerald Kolinsky.
FINDING AND AWARD
1-25. Paragraphs 1-25 of the Sixth District's Finding and Award are affirmed and adopted as paragraphs 1-25 of this Division's Finding and Award.
WHEREFORE IT IS ORDERED, ADJUDGED AND AWARDED that:
A. The claimant is entitled to permanent partial disability benefits for 43.4% bilateral hearing loss.
B. Claimant is entitled to the sum of $350.00 to be paid to Dr. Robins for his testimony.
C. Claimant is entitled to all other applicable benefits provided in chapter 568 of the Connecticut General Statutes.
OPINION
Claimant was exposed to loud noises during his employment from operation of a riveting machine and other machinery. He made his first claim for hearing loss in an informal hearing held December 16, 1977.
An October 9, 1984 Finding and Award awarded Claimant permanent partial disability benefits of 3.7 percent of his right ear and 7.5 percent of the left ear for hearing loss caused by noise in the workplace. Respondents' appeal presents the following issues; (1) was the written notice given as required by Sec. 31-294, C.G.S., (2) did the hearing loss arise in and out of the course of employment, (3) did maximum medical improvement need to be reached before a permanent partial award could be made, and (4) was March 31, 1983 Claimant's last date of disability. Claimant in its cross-appeal requests that the entire 43.4% be assessed under Sec. 31-349, C.G.S.
The Commissioner concluded the date of injury to be March 31, 1983, the retirement date and hence the date of last exposure to the industrial noise repetitive trauma. As the first informal hearing in the matter was December 16, 1977, the happening of such a hearing constituted constructive notice in compliance with Sec. 31-294.
"If there has been a hearing or a written request within said one year period from the date of the accident or within said three-year period from the first manifestation of a symptom of the occupational disease, as defined herein . . . no want of such notice shall be a ban to the maintenance of proceedings. . . ."
As to the second issue, the determination of whether Claimant's injury arose in and out of the course of employment is a factual determination which depends on the trial Commissioner's assessment of the weight and credibility to be accorded conflicting evidence. We will not disturb such findings if there is a sufficient basis in the evidence for the Commissioner's factual conclusion, Adzima v. UAC/Norden Division, 177 Conn. 107 (1979); Battey v. Osborne, 96 Conn. 633 (1921); Powers v. Hotel Bond Co., 89 Conn. 143 (1915); Ashton v. Soneco Services, Inc., 3 Conn. Workers' Comp. Rev. Op. 60, 359 CRD-1-84 (1986). We find that the record shows such a sufficient evidentiary basis.
A recent Appellate Court decision, Briggs v. State Employees Retirement Commission, 13 Conn. App. 477 (February 23, 1988), although not a workers' compensation matter, addresses the cognate concepts of permanency of disability and maximum medical improvement. In fact, Sec. 31-308(b) only uses the words "permanent loss" and "permanent partial loss" and the "maximum medical improvement" language derives from decisions employing that latter concept to measure permanency and after 1967 in Sec. 31-295(c), C.G.S. Briggs quotes the American Medical Association "Guides to the Evaluation of Permanent Impairment". "The term `permanent' refers to a condition which results in a substantial loss of function despite treatment and which has persisted and may persist for an indefinite period", Briggs, supra, at 486. There was ample evidence in the record for the Commissioner to find Claimant's hearing loss complied with this definition of permanent.
Respondents' third ground of appeal contends that even if hearing loss was permanent, it wasn't at maximum medical improvement as surgery might have reduced it. But Claimant feared unsuccessful surgery might worsen the condition, and there is evidence his fear was not unfounded. Since he had such a reasonable fear, Acquarulo v. Botwinik, 139 Conn. 684 (1953) does not apply. The Commissioner therefore could treat the amount of loss as permanent at that point.
Respondents' final quarrel with the Finding below is the date of injury, March 31, 1983. As we noted earlier, this was the last day worked and the last day of exposure to industrial noise. Their argument is that the trial Commissioner applied an occupational disease concept and that hearing loss is a traumatic injury with a one-year statute of limitations rather than the three years applicable to occupational disease. We stated in O'Leary v. City of New Britain, Case No. 236 CRD-6-83 (decided December 2, 1986);
"the General Assembly amended Sec. 31-307 C.G.S., P.A. 80-124 in 1980 to provide, `In the case of an occupational disease, 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."
The same considerations here apply. Claimant continued to be exposed to the plant noise until the last day worked. Hence, the injury process was not completed until then.
Claimant's cross-appeal raises Sec. 31-349 issues which we discussed in Fusco v. Geometric Tool, 472 CRD-3-86 (December 16, 1987). The Commissioner found Claimant had 43.4% permanent partial impairment or hearing loss but that only 3.7% loss in the right ear and 7.5% loss in the left was due to the employment. Therefore, he only awarded those work-related losses. Section 31-349(a) provides:
"The fact that an employee has suffered previous disability, . . . shall not preclude him from compensation for a later injury . . . If an employee who has previously incurred, by accidental injury, disease or congenital causes, . . . or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability . . . ."
Fusco states:
"As we read Sec. 31-349, it is not necessary that the total resultant permanent disability be causally related only to the second injury. Sec. 31-349 simply states that if the total resultant disability from both causes, not the new compensable event alone, is greater than it would have been from the second injury standing alone, then the Respondents are liable for the combined total thus caused, Aurora v. Miami Plumbing Heating Inc., 6 Conn. App. 45 (1986), a Per Curiam opinion affirming this Division's decision, 238 CRD-7-83, 2 Conn. Workers' Comp. Rev. Op. 113 (December 10, 1984)."
The Commissioner therefore should have awarded the entire 43.4% loss. We have so corrected the Finding and Award.
Commissioners Rhoda Loeb and Gerald Kolinsky concur.