Opinion
CASE NO. 370 CRD-7-84
MARCH 28, 1988
The claimant was represented at the trial level by Matthew Shafner, Esq., and on appeal by Matthew Shafner, Esq. and David N. Neusner, Esq., and appearing at oral argument was Carolyn Kelly, Esq., all of O'Brien, Shafner, Bartinik, Stuart and Kelly, P.C.
The respondents were represented at the trial level by Douglas Drayton, Esq. and on appeal by Michael J. O'Sullivan, Esq., both of Pomeranz, Drayton Stabnick.
This Petition for Review from the December 3, 1984 Finding and Dismissal and April 15, 1985 Ruling on Claimant's Motion to Re-Open and Modify Award of the Commissioner for the Seventh District was heard September 26, 1986 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew P. Denuzze and A. Thomas White, Jr.
OPINION
Claimant's deceased spouse diagnosed circa November 7, 1977 as suffering from malignant pleural mesothelioma died on March 12, 1978 because of acute and chronic organic brain syndrome due to mesothelioma of the right lung. She alleges that the decedent's malignant pleural mesothelioma resulted from decedent's exposure to asbestos dust while employed as a carpenter in constructing a new Norwalk Hospital wing in 1953 and while working for Fabrizio Martin, Inc. in building the Nathaniel Ely School in South Norwalk, CT and the Cider Mill School in Wilton, CT in 1957.
A written notice of claim was filed with the Compensation Commissioner and Norwalk Hospital on or about June 18, 1979. A written notice of claim as to employer Fabrizio Martin, Inc. was also filed in the office of the Compensation Commissioner on July 23, 1979, but no notice of claim was filed with Fabrizio Martin as the address of the company could not be ascertained, nor could it be determined whether the company was still in business.
Claimant has appealed the Seventh District December 3, 1984 Finding and Dismissal which (1) denied preclusion of compensability under Sec. 31-297(b) C.G.S. against respondent Norwalk Hospital and (2) further found that the claim was barred by Sec. 7442, C.G.S Revision of 1949.
Section 31-297(b), C.G.S. provides in pertinent part, "Whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the Commissioners stating that the right to compensation is contested. . . . If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death . . ."
Sec. 7442. Notice of claim for compensation. No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation shall be given within one year from date of the accident or from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death shall have resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents may make claim for compensation within said two-year period, and provided no claim on account of an occupational disease shall be made by an employee or his dependents against the employer in whose employ the disease is claimed to have originated, except while the employee is still in such employ, or within five years after leaving such employ.
As decedent's 1953 Norwalk Hospital and 1957 Fabrizio and Martin work exposures occurred before the 31-297(b) preclusionary language was adopted in 1967, the trial Commissioner ruled that preclusion did not apply. Similarly, he ruled that the statute of limitations or non-claim in effect in 1953 and 1957, the years when decedent last worked for the respective employers, was Sec. 7442, and that barred any claims not brought within five years after the last date of employment. If the laws in effect on November 7, 1977, the date of first manifestation of symptoms or March 12, 1978, the date of death, were to apply, then the June 18 and July 23, 1979 notices of claim would be within the present three-year statute for occupational disease, Sec. 31-294, and preclusion would lie at least as to the Norwalk Hospital, Sec. 31-297(b).
Besides the dependent widow's appeal from the December 3, 1984 Dismissal of Claim, she also has appealed the Commissioner's April 15, 1985 denial of her Motion to reopen, reconsider and take additional evidence. In that regard Claimant wished to present new evidence discovered in a federal proceeding, Bjelka v. Bethlehem Steel Corporation and Luders Shipyard, Inc., U.S. Dept. of Labor Case No. 83-LHC-917/18 (April 5, 1984). That new evidence would tend to show that decedent's asbestos-caused disease originated at the Luders Shipyard employment antedating the Norwalk Hospital or the Fabrizio and Martin jobs. Although the state decision was rendered in December, 1984, the hearing proceedings on which it was based had been held December 13, 1982 and April 7, 1983, long before the federal decision.
If the new evidence to be offered did in fact show that the occupational disease here originated during wartime employment in 1942, then Claimant's contention that Niedzwicki v. Pequonnock Foundry, 133 Conn. 78 (1946) governed would be persuasive to make the claim compensable. In that case the Connecticut Supreme Court interpreted Sec. 7442. The court held that the limitation of claim to a period five years after the last date would apply only to the employment where the employee was first exposed to the deleterious substance causing the disease. Periods of employment subsequent to such first exposure were not an employ in which "the disease is claimed to have originated", supra, 82, and hence could not benefit from the five years statute of limitations. For this reason we rule that the trial Commissioner should have reopened proceedings to consider the evidence of the 1942 Bethlehem Steel and Luders Shipyard employment.
General Statutes Cum. Sup. 1939 Sec. 1330e as it was then numbered.
As our ruling on the denial of the motion to present new evidence is dispositive of Claimant's appeal, we need not decide the other questions raised. However, the Niedzwicki decision's reliance on Broyoska v. Norwalk Lock Co., 8 Conn. Sup. 381 (1940) has relevance to those other issues. Broyoska held that the statute in force at the time the claimant's right vested governed the validity of the claim. Bremner v. Marc Eidlitz Sons, Inc., 118 Conn. 666 (1934) holds that the statute of limitations does not begin to run until the date of the first known manifestation of a symptom. As we have noted earlier, that date in this case was November 7, 1977. If so, does not the law in effect in 1977 control?
For the reasons above stated, the appeal is granted and the matter is remanded for further proceedings consistent with this opinion.
Commissioners Andrew P. Denuzze and A. Thomas White, concur.