243 Conn. 949 | Conn. | 1997
Concurrence Opinion
joins, concurring. I agree that the petition by the plaintiff, Stanley Dorsey, for certification for appeal from the judgment of the Appellate Court
In Discuillo, we were faced with determining the time limitation period within which an employee must file a notice of claim with respect to a repetitive trauma injury. A majority of the court held that because the legislature failed to provide for such a time limitation, but did so for an accidental injury and occupational disease, repetitive trauma injury must “be read broadly enough so [as to] be deemed to fall into one of the two extant jurisdictional categories, as appropriate to the specific facts of each particular claim.” (Emphasis in original.) Id., 578. This means that the employee must give written notice of a claim for compensation if the injury is classified as — that is, closely related to — an accidental injury “within one year from the date of the accident,” and, if it is classified as an occupational disease, “within three years from the first manifestation of a symptom of the occupational disease . . . .” General Statutes (Rev. to 1981) § 31-294.
On remand to the Appellate Court, this case should be remanded to the workers’ compensation commissioner for a factual determination of whether the plaintiffs hearing loss caused by the repetitive trauma, for notice purposes, is to be classified as an accidental injury or
Dorsey v. United Technologies Corp., 45 Conn. App. 707, 697 A.2d 713 (1997).
At the time of the plaintiffs injury, General Statutes (Rev. to 1981) § 31-294 provided in relevant part: “No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent
The plaintiff in Discuillo pointed out in his motion for reconsideration that the rule, which was never argued below or in this court by either party, but which was adopted by the majority in Discuillo, will cause great confusion and injustice. First, claimants who have suffered repetitive trauma injuries, as well as their employers, will not know which limitation period applies or when the limitation period began to run until a hearing has been held on the issue of whether the claimant’s particular injury is more like an accidental injury or more like an occupational disease. Because the resolution of this issue will require a workers’ compensation commissioner to engage in a complicated factual analysis in each case based on medical expert testimony, the rule does not provide any guidance to claimants as to when they must file their claims. Second, unless a claimant has satisfied both limitation periods by filing his claim within one year of the last date of exposure and within three years of the date of awareness, the issue of timeliness can be resolved only by a trial. Because that is a jurisdictional issue, many claims that would normally have been accepted by the employer will now be denied until litigation on the issue has concluded. As a result, claimants will be denied necessary medical treatment and compensation while fire issue is being litigated at great additional expense. Third, since the majority does not provide any standards for commissioners to apply in determining whether an injury is more like an occupational disease or more like an accidental injury, different commissioners, faced with the same evidence pertaining to the same injury, may reach opposite conclusions on tliis issue.
In doing so, the majority ignored our long-standing rule of construction with respect to workers’ compensation law: broad and liberal construction
Lead Opinion
The plaintiffs petition for certification for appeal from the Appellate Court, 45 Conn. App. 707 (AC 16378), is granted. The case is remanded to the Appellate Court for reconsideration in light of Discuillo v. Stone & Webster, 242 Conn. 570 (1997).
In view of our remand without further proceedings in this court, the provisions of Practice Book § 4138 are waived.