Opinion
CASE NO. 1300 CRD-2-91-9
AUGUST 23, 1993
The claimant was represented by Nathan Shafner, and Mark Oberlatz, Esq., both of O'Brien, Shafner, Bartinik, Stuart and Kelly, P.C.
The respondents Travelers Insurance were represented by Amado Vargas, Esq. and Christine Harrigan, Esq., of the Law Offices of Robert S. Cullen.
The Second Injury Fund was represented by Gerald Rucci, Esq. and Michael Belzer, Esq., Assistant Attorneys General.
This Petition for Review from the September 12, 1991 Finding and Award of the Commissioner for the Second District was heard August 7, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners James J. Metro and Roberta D'Oyen.
OPINION
The respondents, the Second Injury Fund and the claimant have Petitioned for review from the September 12, 1991 Finding and Award and September 18, 1991 Corrected Finding and Award of the Commissioner for the Second District. In that Finding and Award the trial commissioner award workers' compensation benefits to the claimant for a pulmonary disability resulting from asbestosis. The commissioner found that the claimant was diagnosed December 12, 1986 as having chronic obstructive pulmonary disease with mild asbestosis. At the date of that diagnosis the claimant was assessed as having a twenty-five percent permanent loss of use of his lungs. It was found that as of January 1, 1989 the claimant was totally disabled.
Additionally the trier found that the claimant's asbestosis was an occupational disease resulting from asbestos exposure between March thru June 1942 while working for the respondent employer and computed the claimant's compensation rate on the of his earnings in 1942 and the statutory minimum at the time of claimant's diagnosis in 1986. The trial commissioner ordered the respondents to pay cost of living adjustments [hereinafter referred to as COLAS] for the period of total disability and the Second Injury Fund to reimburse the respondents for payment of the COLAS.
The respondents, the Second Injury Fund and the claimant appealed. The respondents present the following issues for review; (1) whether the trial commissioner erred in failing to dismiss the claim on the basis of the statute of limitation which existed at the time of claimant's employment with the respondent employer, (2) whether the claim was untimely pursuant to Sec. 31-294, (3) whether the claim was barred under Sec. 31-299b by claimant's failure to notify the employer where he was last exposed, and (4) whether the trial commissioner erred in concluding that claimant's employment with the respondent was causally related to his asbestosis. The Second Injury Fund also seeks review as to whether the trial commissioner erred in applying the statute of limitation as it existed in 1942 and whether the trial commissioner erred in ordering the Fund to pay COLAS as of December 12, 1986. The claimant presents for review whether the trial commissioner erred in his determination as to the claimant's compensation rate.
The first issue to be addressed is whether the trial commissioner erred in failing to apply the statute of limitations provision of the workers' compensation act as they existed in 1942. The respondents refer to General Statutes Sec. 5245 (Rev. 1930) as amended by Sec. 1613c (1935) Sec. 1330e (1937, 1939) [hereinafter referred to as Sec. 1330e] which provided the following.
"[N]o 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 his leaving such employ."
In support of their contention that the trial commissioner misapplied the law, the respondents cite Sec. 55-3 C.G.S. which prohibits the retrospective application of statutes imposing "any new obligation on any person or corporation" and various court decisions which hold that legislative enactments affecting substantive rights and obligations cannot be applied retrospectively. See e.g., Miano v. Thorne, 218 Conn. 170 (1991); Nagle v. Wood, 178 Conn. 180 (1979); Lavieri v. Ulysses, 149 Conn. 396 (1962); Massa v. Nastri, 125 Conn. 144 (1939). We agree with the respondents and reverse the commissioner.
The particular statute at issue imposed a statute of limitation or a statute of repose on the filing of occupational disease claims. Cf. Daily v. New Britain Machine Co., 200 Conn. 562, 582 (1986) (court equated statutes of limitation with statutes of repose). The particular provision was subsequently repealed and over the years the statute of limitations for the filing of occupational disease claims was broadened. See Public Act 80-124 and Sec. 31-294. Thus, the narrow question becomes whether the repeal of Sec. 1330e and the subsequent broadening of the statute of limitation may be applied retrospectively. We think not.
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. . . . [N]o want of such notice of claim shall 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.
Section 55-3 provides:
"No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect."
It would seem that the application of the later amended statutes of limitation would impose a new obligation on the employer and thus would violate the presumption of legislative intent codified in Sec. 55-3. Schieffelin Co. v. Department of Liquor Control, 194 Conn. 165 (1984). Additionally whether a statute is to be applied retrospectively often turns on whether it is substantive or procedural in character. The time limitations contained in our workers' Compensation Act have been held as jurisdictional and therefore are characterized as substantive.
Specifically, our Supreme Court stated the following in Walsh v. Waldron, 112 Conn. 579, 584 (1931):
"`The liability of an employer . . . was not fixed by the simple fact of injury to the employee arising out of and in the course of his employment,'" but the element of notice and the time within which it must be given, "`entered into the very essence of the injured party's claim and the extent of it'. . . . The making of the claim and the time thereof are matters going to the maintenance of the right of action. . . . Where a statute gives a right of action which does not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone . . . Being a limitation upon the right of action it must be strictly complied with." Simmons v. Holcomb, 98 Conn. 770, 774, 775, 120 Atl. 510; Demartino v. Siemon 90 Conn. 527, 97 Atl. 765; Radezky v. Sargent Co., 77 Conn. 110, 58 Atl. 709; Crocker v. Hartford, 66 Conn. 387, 34 Atl. 98; Forbes v. Suffield, 81 Conn. 274, 70 Atl. 1023. The statute specifically forbids the maintenance of proceedings before the commissioner with four exceptions, unless the statutory notice of claim for compensation has been given, and the giving of this notice, and the time within which it must be given, become jurisdictional requirements. Not being merely a procedural matter the doctrine of waiver upon which the claimant relies, cannot avail, since jurisdiction cannot be waived, nor can it be conferred by agreement. (citations omitted) (emphasis ours).
Therefore, as the subsequent amendments to the statute of limitations are substantive in nature and would impose an additional obligation on the employer which was not previously contained in the general statutes they are not applicable. See also, Bjelka v. Norwalk Hospital, 5 Conn. Workers' Comp. Rev. Op. 21, 370 CRD-7-84 (1988).
While we may be disturbed that the application of the Sec. 1330e to the instant matter leaves an arguably entitled claimant without a remedy under our act, the purpose underpinning statutes of limitation should not be ignored. As our Supreme Court has said:
One of the purposes of a statute of limitations is to protect a defendant from finding himself in a situation where, because of the lapse of time, he is unable to gather facts, evidence, and witnesses necessary to afford him a fair defense . . . "It is consonant with the purpose of protecting defendants against stale claims that the legislature should enact a statute . . . which may on occasion bar an action even before the cause of action accrues." Vilcinskas v. Sears, Roebuck Co., 144 Conn. 170, 175 (1956).
Daily, supra at 584. See also Zapata v. Burns, 207 Conn. 496, 508 (1988).
Having concluded that Sec. 1330e is applicable we must next review the construction given to the statute by our courts. Directly on point with the case at hand is Niedzwicki v. Pequonnock Foundry, 133 Conn. 78 (1946). In Niedzwicki, the court held that the only employer who was shielded from liability for a claim due to occupational disease not filed with the period specified in the statute, was the employer in whose employ the occupational disease was claimed to have "originated." The construed "originated" in, its ordinary sense of "to have origin or beginning." In Niedzwicki, the claimant claimed Compensation for silicosis. The claimant had been employed and exposed to silica prior to his employment and exposure with the employers against whom a claim was brought. The subsequent employers were not excused from liability on the basis of the statute's time limitation as they were not employers at the time the disease commenced. Thus, if Sec. 1330e is applicable to, the instant matter, Niedzwicki is controlling authority.
We therefore, reverse the trial commissioner and the claimant's claim against the respondents is dismissed. Having concluded as we have the other issues raised on appeal are moot.
Commissioners James J. Metro and Roberta D'Oyen concur.