Opinion
CASE NO. 3466 CRB-8-96-11CLAIM NO. 800001956
JANUARY 27, 1998
The claimant was represented by Nathan J. Shafner, Esq., O'Brien, Shafner, Stuart, Kelly Morris, P.C.
The respondent employer as self-insured was represented by John Greiner, Esq.
The respondents, CIGNA Property Casualty and Aetna Casualty Surety were represented by Stephen Eckern, Esq., and Margaret Corrigan, Esq.
The Second Injury Fund was represented by Matthew Beizer, Esq.
This Petition for Review from the October 29, 1996 Finding and Award of the Commissioner acting for the Eighth District was heard June 13, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro, and John A. Mastropietro.
OPINION
The claimant seeks benefits pursuant to § 31-306 (a) as the dependent spouse of the decedent. On January 22, 1991 the decedent died as a result of leukemia, which the trial commissioner concluded was causally related to the decedent's exposure to asbestos in the course of his employment. The underlying facts which give rise to this claim are as follows.
The decedent was employed by Electric Boat from 1957-1988 and there is no controversy among the parties that the decedent was exposed to asbestos from 1957 through 1975 or 1976. In December, 1985 the decedent became aware that he suffered from an irregular pulmonary condition. That condition was revealed as a result of an X-ray taken by the employer's physician. Prior to that X-ray, the decedent had been suffering from a cough, respiratory problems and significant weight loss. The decedent then sought treatment with a pulmonary specialist. In April, 1986 a lung biopsy was performed. In the course of that lung biopsy various irregularities noted were occasional ferruginous bodies indicative of exposure to asbestos. In late 1986 the decedent was admitted into Rhode Island Hospital for swelling for his hands, various parts of his feet, a rash and shortness of breath. In the Fall, 1988 the decedent was hospitalized for progressive shortness of breath and a possible pulmonary infection.
See Finding Paragraph # 18 which states "During the open lung biopsy, plaque-like material on the parietal pleura of the chest wall and diaphragm was noted. A biopsy of the inferior aspect of the right upper lobe was taken. Chronic pneumonitis with intra-alveolar organization were seen, suggesting to the pathologist either idiopathic pulmonary fibrosis or organizing pneumonia. Occasional ferruginous bodies were present reflecting the patient's exposure to asbestos."
The decedent last worked in August, 1988 due to his pulmonary condition. In 1988 the decedent filed for benefits pursuant to the Longshore and Harbor Workers' Compensation Act. Thereafter, the decedent received permanent total disability benefits from August 31, 1988 to January 22, 1991 (the date of his death) pursuant to the Longshore and Harbor Workers' Compensation Act.
The decedent's claim for benefits pursuant to the Longshore Harbor Workers' Compensation Act was given on a U.S. Dept. of Labor form which included on its face the following, "I hereby make claim for compensation benefits monetary and medical, under the LHWC State of Connecticut." See Paragraph #6.
It does not appear that the decedent pursued a claim for benefits under Connecticut's chapter 568 for his disability during his lifetime. However, the decedent was paid $73,888.80 in benefits under the Longshore Harbor Workers' Compensation Act.
Over the years the decedent was examined by a number of physicians who provided various opinions as to the decedent's diagnosis, causation and treatment. In 1986 the claimant was diagnosed as suffering from a rheumatic condition known as dermatomyositis. Dermatomyositis is described as "a rheumatic disease of unknown etiology which affects multiple body parts and systems including the skin, muscles, joints, lungs, heart and nervous system." See Paragraph 32.
Due to his respiratory problems the decedent was put on high doses of steroids and ultimately immunosuppressants and chemotherapy. See Paragraph #33 and Respondent's Exhibit 9 (SIF) Mar. 9, 1995, Jan. 23, 1995 Deposition of Dr. David Kern [hereinafter Jan. 23, 1995 Deposition of Dr. David Kern]. The decedent, as a result of the chemotherapy, developed leukemia which resulted in his death. A Voluntary Agreement executed by the claimant and the self-insured employer was approved in the Eighth District. In that Voluntary Agreement, the employer agreed to pay "widow's benefits." The appellants filed the instant appeal and present the following issues for review; whether the trial commissioner erred in concluding that the decedent's claim was timely and whether the trier erred in concluding that the decedent's death resulted from asbestosis and thus, was compensable.
In the instant matter, and as noted above, the claimant's claim for surviving spouse benefits was filed January 30, 1991. It is the contention of the appellants that the claim failed to comply with the requirements of § 31-294. Sec. 31-294 provides in pertinent 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 or dependents, or the legal representative of the deceased employee, may make claim for compensation within the two-year period or within one year from the date of death, whichever is later. Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, or the date of the first manifestation of a symptom of the occupational disease and the nature of the disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed.
The appellants argue that although the dependent spouse's claim was filed within one year of the date of death, the claim is untimely as the decedent's notice of his claim did not satisfy the statutory prerequisites of § 31-294. Specifically, the appellants argue that the notice on the U.S. Dept. of Labor's form for federal Longshore and Harbor Workers' Compensation benefits with an indication that the decedent was also making a claim for benefits under Connecticut's Workers' Compensation Act was not legally sufficient under § 31-294. The appellants argue that the information contained in the federal form was not sufficient to apprise the employer that a claim for benefits under Connecticut's Workers' Compensation Act was being claimed. We disagree. However, before providing our analysis as to how we have determined the decedent's notice was timely we must first review why the decedent's notice is relevant to the dependent spouse's claim for benefits.
In an analogous case heard by this panel, Buck v. General Dynamics, 3324 CRB-2-96-4 (January 21, 1998) [hereinafter Buck II] we concluded that where a dependent spouse's claim for benefits is filed within one year of the date of death due to the decedent's alleged work related heart attack, but some years beyond the time for which the decedent himself arguably could have made the claim, the dependent spouse's claim is untimely in the absence of a notice by the decedent through whom benefits are claimed. Specifically, in Buck II we noted that the mere filing of a claim under the federal Longshore and Harbor Workers' Compensation Act is not legally sufficient per se for the purpose of § 31-294. We noted in Buck II there was no information contained in the federal Longshore and Harbor Workers' Compensation notice of claim to apprise the employer that a potential claim under Connecticut's Workers' Compensation Act may be pending. However, we think the matter at hand is quite dissimilar as the information contained in this federal Longshore and Harbor Workers' Compensation Act notice of claim informed the employer of the potential claim for benefits under Connecticut's Workers' Compensation Act. Thus, applying the analysis of Buck II to this case we believe that the notice requirements were met.
Clearly the notice provided to the employer met all the technical requirements of § 31-294. The fact that the decedent did not pursue his claim under Connecticut's Workers' Compensation Act is of no significance. The issue here is whether the employer had notice of the decedent's injury sufficient to put the employer on notice. As was noted in Black v. London Egazarian Associates, Inc., 30 Conn. App. 295, 303 (1993)
The purpose of 31-294, in particular, is to alert the employer to the fact that a person has sustained an injury that may be compensable; Gesmundo v. Bush, 133 Conn. 607, 612, 53 A.2d 392 (1947) (discussing legislative intent underlying predecessor to 31-294); and that such person "is claiming or proposes to claim compensation under the Act." (Emphasis added.) Rehtarchik v. Hoyt-Messinger Corporation, 118 Conn. 315, 317, 172A. 353 (1934) (same).
We believe that the notice filed by the decedent sufficiently apprised the employer of the personal injury suffered by the decedent and its alleged causal nexus to the decedent's employment. Upon receipt of the notice filed by the decedent the employer could reasonably foresee that it may need to defend its liability for a potential claim under Chapter 568. Had the decedent chosen to exercise his right to Connecticut Workers' Compensation benefits, his notice, arguably complied with § 31-294.
Furthermore, in Buck II, one of our paramount concerns was the public policy which underpins statutes of limitations generally, i.e., after a given period of time a party should be sheltered from liability and after a reasonable lapse of time people should be free to "plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability." (citations omitted; internal quotation marks omitted.) Keegan v. Aetna Life Casualty, 42 Conn. App. 803, 809 (1996).
Thus, if one construes Buck II as standing for the proposition that the dependent spouse's notice for benefits is dependent upon an analysis of the timeliness of the decedent's notice then under the factual circumstances at hand the claimant's notice is timely.
This would also include situations where the injured employee doesn't file a claim but the dependent spouse's claim is filed within the time period that the decedent could have filed a claim. See Capen v. General Dynamics, 38 Conn. App. 73 (1995) and Buck v. General Dynamics, 3324 CRB-2-96-4 (January 21, 1998))
Next we consider the appellants' argument that the decedent's death did not arise in and out of the course of his employment. In essence, the appellants seek to have us reassess the evidence and the factual findings of the trial commissioner. We do not engage in de novo review. Unless the facts as found by the trier are without evidence, contrary to law or based on unreasonable factual inferences, the findings must stand. Fair v. People's Savings Bank, 207 Conn. 535 (1988).
The trier found that on Nov. 6, 1989, Dr. David Kern concluded that the "decedent's disabling lung condition was due to pulmonary asbestosis and asbestos-related pleural disease." See Paragraph 36 and Paragraph 46, See also, Jan. 23, 1995 Deposition of Dr. David Kern. It is quite clear from the trier's findings that there was an array of medical opinions and diagnoses regarding the decedent's condition. The determination of the issue as to causation is a matter within the purview of the trial commissioner.
In the instant case the trier found that the claimant suffered from a lung disorder which resulted from his exposure to asbestos in the work place. As a result of his lung disorder, the claimant was treated with high doses of steroids and ultimately chemotherapy due to problems associated with high doses of corticosteroids. The chemotherapy resulted in the decedent's development of leukemia and subsequent death. Our review of the Finding and Award reflect findings and conclusions which are supported by the evidence, not contrary to law nor based on unreasonable or impermissible factual inferences. See Fair, supra. Therefore, the factual findings and conclusion of the trial commissioner must stand.
As to any contention by the appellants that the Voluntary Agreement executed by the self insured employer and the dependent spouse should be set aside we find no basis to support the appellant's contention. See,Hayden v. Wallace Sons. Mfg. Co., 100 Conn. 180 (1923), Wallin v. Danbury, 14 Conn. Workers' Comp. Rev. Op. 353, 1940 CRB-7-93-11 (Sept. 22, 1995); Soares v. Glass Industries, 12 Conn. Workers' Comp. Rev. Op. 189, 1377 CRB-3-92-1 (May 4, 1994). Furthermore, any review sought as to this issue was abandoned by the appellants as there is no argument presented in their brief nor was this issue given as one of its reasons for appeal. See Prac. Book § 4064C. See also; Maio v. L.G. Defence, Inc., 13 Conn. Workers' Comp. Rev. Op. 197, 198 n. 1, 1734 CRB-5-93-5 (March 22, 1995); Richardson v. H.B. Sanson, Inc., 6 Conn. Workers' Comp. Rev. Op. 107, 108 n. 1, 590 CRD-1-87 (Feb. 23, 1989).
Finally, we are left to rule on a Motion To Dismiss filed by the appellee. That Motion To Dismiss is based on the appellee's assertion that the appellants failed to file their Petition For Review within the period prescribed in § 31-301 (a). The appellants contend that they did file a timely Petition For Review but that the District Office is merely unable to locate the Petition For Review. In support of their assertion that a Petition For Review was filed, the appellants seek to proffer an affidavit of one of their employees indicating that the Petition For Review was mailed November 6, 1997. The appellee has objected to the offering of the affidavit and specifically to the affidavit's assertion that the agency's electronic claims system reflected a computer entry of a Petition For Review on November 8, 1997. Whether the affidavit should properly be considered by this panel is a question we need not consider. The record in this case does reflect that a Motion To Correct was filed by the appellants on November 8, 1997 as well as a Motion For Extension of Time To File Reasons For Appeal. As these documents were filed within the 10 day period for the filing of an appeal, we conclude that the appellant substantially complied with § 31-301 (a) and evinced its intent to pursue an appeal from the trial commissioner's October 29, 1996 decision. See Imbrogno v. Stamford Hospital, 5 Conn. Workers' Comp. Rev. Op. 99, 610 CRB-8-87 (June 9, 1988). We thus, deny the appellee's Motion To Dismiss.
We therefore, affirm the trial Commissioner's decision and dismiss the instant appeal.
Commissioners James J. Metro and John A. Mastropietro concur.