Palmieri v. Simkins Industries, Inc.
The 1994 Connecticut Appellate Court case of Borent v. State continues to be the touchstone case as to the timeliness of claims filed for repetitive trauma injuries, ruling that "where the injury claimed, as in many hearing loss cases, results from repetitive trauma we have held the date of injury to be the last date of exposure to the incidents of repetitive trauma, ie., the last day worked." Pasquale Palmieri was employed by Simkins Industries in a paper mill from 1996 until 2007. Palmieri testified to the extremely loud noise at the facility and noticing hearing problems while employed there. He participated in breaking down the factory from 2005 to 2007 with power tools. The commissioner found Palmieri's bilateral hearing loss to be a compensable repetitive trauma injury with his expert's opinions fully credible and persuasive. The commissioner did not find the respondent employer and insurer's expert fully credible and persuasive. The commissioner denied the respondents' motion to correct. The respondents appealed arguing that Palmieri's exposure to injurious noise ended in 2005 more than one year prior to filing his claim for benefits and that the claim was time-barred. Palmieri argued that the evidence credited by the commissioner was that the claimant continued to be exposed to injurious noise breaking down the factory with power tools within one year of filing his claim. The Compensation Review Board deferred to the commissioner's assessment of the evidence and affirmed the finding and decision. The respondents argued that the finding and decision was at odds with the standard in the 2009 Connecticut Supreme Court case of DiNuzzo v. Dan Perkins Chevrolet Geo, Inc. as to the quantum of evidence needed to support causation. They contended that Palmieri said he had not provided audiograms to his expert and, therefore, his expert's causation opinion was premised upon incomplete information. The board found DiNuzzo distinguishable. Because the respondents did not depose the claimant's expert, his reports had to be considered "as is" and were entitled to the weight granted by the commissioner. The commissioner could reasonably conclude that the claim was brought in a timely fashion.