Opinion
CASE NO. 684-CRD-7-88-1
SEPTEMBER 5, 1989
Claimant was represented by Lindalea Ludwick, Esq., Sklarz Early.
The respondent-employer, Perkin Elmer Corp., and the respondent-insurer, Liberty Mutual Insurance Co., were represented by Kevin J. Maher, Esq.
The respondent-employer, Frouge Construction Co., and the respondent-insurer, Hartford Insurance Group, were represented by Pomeranz, Drayton Stabnick.
The respondent-employer, Frouge Construction Co., and the respondent-insurer, Home Insurance Co., were represented by McNamara Kenney, Attorneys at Law.
The respondent-employer, Mariano Cardillo Sons, and the respondent-insurer, Hartford Insurance Group, were represented by Pomeranz, Drayton Stabnick.
The respondent-employer, E F Construction, and the respondent-insurer, American Mutual Insurance Co., were represented by McGann, Bartlett Brown, Attorneys at Law.
The respondent-employer, Estate of Bernard Dolan, deceased, and the respondent-insurer, The Travelers, were represented by Pomeranz, Drayton Stabnick.
The respondent-employer, A. Bacchiochi Sons, and the respondent-insurer, Commercial Union Insurance Co., were represented by Gillooly, McGrail, Carroll and Sheedy, Attorneys at Law.
The respondent-employer, Dolan Construction, and the respondent-insurer, The Travelers, were represented by Pomeranz, Drayton Stabnick.
This Petition for Review from the December 28, 1987 Finding and Dismissal of the Commissioner for the Seventh District was heard April 28, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Gerald Kolinsky and A. Thomas White, Jr.
OPINION
Claimant has appealed the seventh district December 28, 1987 Finding and Dismissal. She contends: the trial commissioner erred in finding (1) decedent's notice of claim was untimely filed and (2) claimant failed to sustain her burden of proof that decedent's disabling and ultimately fatal mesothelioma was causally connected to asbestos exposure at any of his employments.
The commissioner found the first manifestation of symptom of decedent's mesothelioma was in August 1980. Therefore, under Sec. 31-294 the pertinent law was as follows:
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 from the first manifestation of a symptom of the occupational disease and the nature of such 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 or dependents, or the legal representative of the deceased employee, may make claim for compensation within such two-year period or within one year from the date of death, whichever is later. Such notice may be given to the employer or the commissioner and shall state, in simply language, the date and place of the accident and the nature of the injury resulting therefrom, or the date of the first manifestation of a symptom of the occupational disease and the nature of such disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. If there has been a hearing or a written request for a hearing or an assignment for a hearing within said one-year period from the date of the accident or from the first manifestation of a symptom of the occupational disease as defined herein, as the case may be, or if a voluntary agreement has been submitted within said period of one year, or if within said period of one year an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as hereafter provided in this section, no want of such notice of claim shall be a bar to the maintenance of proceedings and in no case shall any defect or inaccuracy of such notice of claim be a bar to the maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning such personal injury and was prejudiced by the defect or inaccuracy of such notice. Upon satisfactory showing of such ignorance and prejudice the employer shall receive allowance to the extent of such prejudice.
Decedent forwarded a claim letter dated May 9, 1981 which was received by the office of the seventh district commissioner May 12, 1981. The letter was captioned as "John Paul versus Corbetta." This was the only reference to an employer in the letter. The commissioner found decedent suffered no exposure to asbestos during his Corbetta employment, and that the decedent never provided written notice to those respondent-employers who were ultimately alleged to have been sources of asbestos exposure.
Paragraph # 5 of the factual findings has been corrected to reflect the correct date of the decedent's letter and its receipt.
In seeking to overturn the dismissal claimant argues that the notice was timely and proper as Sec. 31-294 provides "notice may be given to the employer or any commissioner. . ." As the notice was received by the seventh district commissioner's office within one year of the first manifestation of symptom it was timely. However the notice targeted an employer in whose employment there had been no asbestos exposure. Nonetheless we disagree with the commissioner's finding in Paragraph 12A where he found the notice not to be "proper and timely." For the purposes of Sec. 31-294 this notice to the Commissioner only was proper to invoke workers' Compensation jurisdiction over the res. Although such a notice would not have satisfied Sec. 31-297(b) requirements, DeLeon v. Jacob Bros., 38 Conn. Supra 331, 336-337 (1981), Secor v. C.A. Parshall, Inc., 4 Conn. Workers Comp. Rev. Op. 158 (1988), Brown v. Bonvini Dental Lab, 594 CRD-7-87 (3/28/89), Salvaggio v. Candlewood Valley Bus Co., 731 CRD-7-88 (5/1/89), Sec. 31-294 prescriptions are less stringent. However, the fact that the notice was sufficient for the claim to survive the statute of limitations does not necessarily mean the commissioner had jurisdiction over the employers whose names do not appear anywhere in that notice.
We need not decide that in personam jurisdiction issue as the commissioner below dismissed the claim on an alternate ground, failure to sustain the burden of proof. Such essentially factual determinations are within the purview of the trial commissioner Fair v. People's Savings Bank, 207 Conn. 535, 541 (1988) citing Herbst v. Hat Corporation of America, 130 Conn. 1 (1943). Our review is limited to determining whether the trial commissioner's conclusion was based on "an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonable drawn from them." Fair, supra at 539 quoting Adzima v. Uac/Norden Division, 177 Conn. 107, 117-18 (1979), Cardillo v. Liberty Mutual Co., 330 U.S. 469, 477-78 (1947).
Before dismissing the matter the commissioner concluded that the only evidence of causality presented was a list of decedent's past employers with an "X" marked next to the names of those where there had been asbestos exposure and a double next to those where there had been great exposure. He found that to be "at best a scintilla of evidence." We do not disagree.
The commissioners Finding and Dismissal is affirmed and the appeal is dismissed.
Commissioners Gerald Kolinsky and A. Thomas White, Jr. concur.