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Capen v. Electric Boat Division

CASE NO. 1394 CRB-2-92-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 30, 1993

ROSE CAPEN, Dependent widow of WESTON CAPEN (Deceased)

CLAIMANT-APPELLEE

CROSS-APPELLANT

v.

ELECTRIC BOAT DIVISION

EMPLOYER

and

CIGNA PROPERTY & CASUALTY CO.

and

AETNA CASUALTY & SURETY CO.

INSURERS

RESPONDENTS-APPELLANTS

CROSS-APPELLEES

and

LIBERTY MUTUAL INSURANCE CO.

and

NATIONAL EMPLOYERS

INSURERS

RESPONDENTS-APPELLEES

CROSS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

CROSS-APPELLEE

APPEARANCES:

The claimant was represented by Nathan Shafner, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.O. Drawer 929, Groton, CT 06340.

The respondents CIGNA and AETNA were represented by Lucas Strunk, Esq., Pomeranz, Drayton and Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

The respondent National Employers was represented by Booth Kelly, Esq., Murphy & Beane, P.O. Box 590, New London, CT 06320 who appeared at oral argument but did not file a brief.

The respondent Liberty Mutual was represented by David Viggiano, Esq., P.O. Box 471, Norwich, CT 06360 who did not appear at oral argument or file a brief.

The Second Injury Fund was represented by Philip Schulz, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06101-0120.

These Petitions for Review from the March 17, 1992 Finding and Award of the Commissioner for the Second District were heard March 13, 1993 before a Compensaton Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The claimant, the Second Injury Fund and respondents-insurers CIGNA Property & Casualty and AETNA Casualty & Surety have petitioned for review from the Second District Commissioner’s March 17, 1992 Finding and Award. The Second Injury Fund and the appealing respondents-insurers challenge the trial commissioner’s conclusion that the claimant dependent widow filed a timely notice of claim for compensation within one year of the date of the decedent’s death as required by General Statutes (Rev. to 1979) Sec. 31-294, notwithstanding the fact that the decedent’s death occurred more than two years after the date of the first manifestation of his occupational disease. The claimant challenges the trial commissioner’s proportionate reduction of the respondents’ share of the death benefits awarded to her based on the decedent’s alleged occupational exposure during his employment out-of-state with an employer over whom there was no in personam jurisdiction. We conclude that the claimant widow’s claim was timely filed and that the award of benefits is not subject to any reduction due to out-of-state occupational exposure under the circumstances of this case.

The respondents assert that the dependent widow’s claim for benefits, filed within one year of the decedent’s death, was not timely filed and is therefore barred by Sec. 31-294. At all times relevant to this case, Sec. 31-294 provided, 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 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 a claim for compensation within such two-year period or within one year from the date of death, whichever is later.” (Emphasis added.) The respondents urge us to read this statutory language as providing only two limitations periods — one appearing before the proviso language of the statute and one following that language. The respondents further argue that since the proviso was not satisfied in this case, that is, death did not result within two years of manifestation, only the language preceding the proviso is applicable, that is, the written notice of claim must have been filed within one year of first manifestation. We disagree.

Under General Statutes (Rev. to 1979) Sec. 31-294, a dependent’s claim must be filed within one year of the accident or manifestation of occupational disease1 or within two years of those events if death resulted within that two year period or within one year of death, whichever timeframe is longer. See Mingrone v. Burndy Corporation, 9 Conn. Workers’ Comp. Rev. Op. 252, 254, 1109 CRD-7-90-9 (1991); Maher v. State, 5 Conn. Workers’ Comp. Rev. Op. 19, 20, 374 CRD-4-85 (1988). The claimant widow’s rights herein accrue by virtue of Sec. 31-306 and “emanate from the death of the decedent employee.” Ash v. New Milford, 207 Conn. 665, 673 (1988). It therefore would not make sense to read the statute to require the claimant to have filed her claim during a period prior to the death of the decedent employee, as urged by the respondents. In the case of a dependent’s claim upon the death of an employee, the statute allows for the filing of claims, in all cases, within one year of the employee’s death and, in cases where death follows swiftly upon (within two years of) injury, within two years of the injury.2 Consequently, the trial commissioner properly concluded that the widow’s claim filed within one year of the death of the decedent employer was timely.3

In her appeal, the claimant poses a multi-pronged attack upon the commissioner’s decision to order a proportionate reduction in her weekly benefits based on his finding that the decedent’s occupational disease was due in part to the decedent’s occupational exposure to asbestos while he was employed at the Bethlehem Steel Shipyard in Quincy, Massachusetts from 1940 to 1952. The commissioner based this proportionate reduction of benefits on our decision in Brown v. Bon Dental Lab, 6 Conn. Workers’ Comp. Rev. Op. 132, 594 CRD-7-87 (1989).

Although the claimant contends that Brown v. Bon Dental Lab, supra, was wrongly decided and is not applicable in a case involving widow’s benefits, we need not address these arguments. Instead, we conclude that the factual predicate required to support apportionment under Brown v. Bon Dental Lab, supra, namely, that there was out-of-state occupational exposure while in the employ of employers not amenable to the Connecticut Workers’ Compensation Act, finds no support in the record.

“[M]atters which bar a recovery or diminish a recovery are ordinarily required to be proved by the employer.” Dombrowski v. Jennings & Griffin Co., 103 Conn. 720, 729 (1926). The reduction of compensation benefits based on out-of-state occupational exposure under Brown v. Bon Dental Lab, supra, certainly falls into this category.

No testimony was presented regarding the deceased employee’s work in the Massachusetts shipyard. While three documents in evidence, all reports by medical providers, do refer to that employment, they do not provide sufficient factual basis to support a finding that the decedent was exposed to asbestos while employed in Massachusetts. While these documents purport to link that Massachusetts employment with exposure to asbestos4, none of the documents state where the author obtained information regarding the alleged exposure to asbestos at the Massachusetts job site. As such, the suggestion in those documents that asbestos was present at the Massachusetts job site is hearsay evidence lacking reliability and trustworthiness; see Raino v. Supermarkets General Coporation, 28 Conn. App. 56, 61, cert. denied, 223 Conn. 924 (1992) (business records); see also Brown v. Blauvelt, 152 Conn. 272 (1964) (medical records); and is not sufficient to provide the necessary evidentiary support for a finding of out-of-state occupational exposure. See Carlson v. Kozlowski, 172 Conn. 263 (1977); Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177-78 (1974).5 The commissioner’s conclusion that part of the decedent’s occupational exposure to asbestos was while he was employed by the Bethlehem Steel Company in Quincy, Massachusetts is, therefore, without evidentiary support. Accordingly, the commissioner’s reduction of benefits by 43%, based on a finding that “the decedent’s death was partially due to exposure to asbestos which occurred while he worked for employers over which Connecticut has no jurisdiction,” cannot stand. See Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

The respondents’ appeal is denied. The claimant’s appeal is sustained and the matter is remanded for an award of benefits at the full compensation rate as opposed to an award at the respondents’ proportionate share.

Additionally, pursuant to Sec. 31-301c(b), we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.

Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.

1 The statutory time limit for occupational disease claims is now three years. General Statutes Sec. 31-294c. BACK TO TEXT

2 The “within one year from the date of death, whichever is longer” language in Sec. 31-294 was added to our Workers’ Compensation Act in 1959 at the same time that statutory language was eliminated which limited occupational disease claims against certain employers to those filed while the employee was still in the employ of such employer or within five years after leaving such employ. See 1959 Public Act No. 580, Sec. 8. The new statutory language was not specifically referred to in the legislative history accompanying the enactment. The legislative history, however, is replete with mention of the need to reform the statute of limitations for occupational disease where the disease manifests itself long after an employee has ceased working for an employer in whose employ the occupational exposure occurred. See, e.g., 8 S. Proc., Part 6, 1959 Sess., p. 2816, remarks of Sen. Norman Buzaid; 8 H.R. Proc., Part 12, 1959 Sess., pp. 5079-80, remarks of Rep. Michael Vernovai; 8 H.R. Proc., Part 12, 1959 Sess., pp. 5082-83, remarks of Rep. Robert Satter. The construction of the statute urged by the respondents would certainly run counter to that legislative intent to prevent the statute of limitations from barring claims simply because of delays in the filing of a claim which are not all within the control of the claimant but are created by the nature of the injury involved. BACK TO TEXT

3 In light of our conclusion that the 1983 claim for dependent’s benefits was timely filed, we need not address the claimant’s alternative argument that decedent employee’s 1980 claim under the Longshore and Harbor Workers’ Compensation Act satisfied the requirements of Sec. 31-294. BACK TO TEXT

4 Claimant’s Exhibit B, admission notes and medical reports from Lawrence and Memorial Hospital, states in pertinent part: “The patient had worked at Electric Boat for upwards of 20 to 25 years and prior to that worked in a shipyard at Quincy, Mass. He has had no other occupational exposures to other agents than asbestos. At Electric Boat he worked as a chipper-grinder, but worked in intermittent association with asbestos insulators.”

Claimant’s Exhibit C, a discharge summary from University Hospital at Boston University Medical Center, states in pertinent part: “Twenty-five years ago, he began working in close contact with asbestos in submarine base in Conn. and Bethlehem Steel in Quincy for 10 years prior to admission.” The admission note upon which this summary appears to be based states in pertinent part: “retired chipper-grinder at Electric Boat (in intermittent assoc’n with asbestos insulators) 1952-1964, formerly worked in Quincy shipyards 1940-1952.”

Claimant’s Exhibit E, a letter from Dr. John R. Balmes of the Yale School of Medicine Occupational Lung Disease Clinic, states in pertinent part: “[The decedent’s] long history of working in shipyards — 12 years at Bethlehem Steel’s Quincy yard (1940-1952) and 12 more years at Electric Boat... — has caused [him] to be exposed to a considerable amount of asbestos.” BACK TO TEXT

5 We note that the claimant did not object to the evidence on this basis at trial and, in fact, introduced the reports which are claimed to support the commissioner’s critical finding in support of apportionment. This procedural defect does not prevent the claimant from now attacking the evidence because the apportionment defense under the Bon Dental Lab case was not presented to the commissioner by the respondents until after the close of the evidence. When the respondents’ Bon Dental Lab claim was raised, the claimant asserted, inter alia, in written opposition to the apportionment of benefits that “there is no foundation to support any evidence of out of state exposure.” Consequently, in light of the unique circumstances of this case, we conclude that this claim has been properly preserved for our review. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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