Buck v. General Dynamics Corporation Electric Boat Division

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

The respondents Aetna Casualty & Surety were represented by Jason Dodge, Esq. and Lucas D. Strunk, Esq., of Pomeranz, Drayton and Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 060334412. Respondent National Employers Co. was represented by Peter D. Quay, Esq. and John Greiner, Esq., 2 Union Plaza, P.O. Box 590, New London, CT 06320. However, no brief was filed on appeal. The Second Injury Fund did not appear at oral argument nor did the Fund file a brief on appeal. However, the Fund was represented at the trial level by Taka Iwashita, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06101-0120.

This Petition for Review from the December 31, 1991 Finding and Award of the Commissioner for the Second District was heard January 8, 1993 before a Compensation Review Board panel consisting of Commissioner John A. Arcudi and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JOHN ARCUDI, COMMISSIONER. Both parties have appealed the Second District’s December 31, 1991 decision awarding survivor’s benefits to the claimant widow, those weekly benefits to begin February 12, 1996, ten years after the death of the decedent employee. Respondents’ appeal contests jurisdiction in that Sec. 31-294 C.G.S. provisions on timely notice of claim were not satisfied and also contests compensability of the July 11, 1975 injury. Claimant objects to the moratorium on widow’s benefits.

Decedent was the respondents’ employee from 1958 through. 1976. On March 5, 1971 he suffered an acute myocardial infarction, not work related. Thereafter he continued his employment until July 11, 1975. The bargaining unit employees were then on strike, but decedent, a salaried employee, continued to work as a crane supervisor. Because of the strike, his work load increased. He was climbing a 54 foot ladder to the crane ten to twelve times per day. That evening at home after work, he lost consciousness and was admitted to Westerly Hospital in Westerly where he was found to have suffered another myocardial infarction. He then underwent cardiac bypass surgery.

He was out of work a considerable length of time but was permitted to return to light duty work on July 13, 1976. Since light duty soon ceased to be available, he left work shortly thereafter. He was awarded workers’ compensation under the Federal Longshore and Harbor Workers’ Compensation Act (LHWCA) for some ten years of benefits between his 1975 heart attack and his date of death February 11, 1986. He suffered a fatal heart attack on that day while plowing snow in his driveway. His widow, the claimant here, was then awarded LHWCA survivor’s benefits for her husband’s death found to be compensable under that Act.

In the December 31, 1991 decision here being appealed the commissioner awarded benefits to the widow for amounts exceeding those received under LHWCA. But since he found the date of injury to be July 11, 1975 he concluded Sec. 31-306(i) C.G.S.1 in effect in 1975 was applicable. Under that statute if the employee receives workers’ compensation benefits for more than two years before death, then there is a moratorium on surviving dependents’ benefits for the same number of years that the living employee received benefits. He ruled that the LHWCA benefits paid by the employer between July 11, 1975 and February 11, 1986 gave rise to this moratorium and therefore ordered the widow’s benefits to begin February 11, 1996, ten years after her husband’s death.

Nowhere in the thirty paragraph corrected Finding does the commissioner directly address the Sec. 31-294 notice of claim jurisdictional issue. The Second District record seems to indicate that there was a notice of claim filed in 1986 after decedent’s death, but a 1986 notice would not satisfy Sec. 31-2942 requirements for a July 11, 1975 injury. The 1975 statute required written notice within a year or “if death has resulted within two years of the date of the accident or . . . occupational disease”, a claim may be made “within such two year period or within one year from the date of death, whichever is later.”

It may be that a LHWCA notice of claim was sent to the employer within the one year time frame or that the employer furnished medical attention or that Sec. 31-294 jurisdictional requirements were satisfied in some other fashion, but the commissioner did not so rule.

Timeliness of claim is a jurisdictional requirement, Pelletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276 (1988); Peters v. State of Connecticut, 10 Conn. Workers’ Comp. Rev. Op. 32, 34, 1103 CRD-3-90-6 (1992). Lacking a finding on this jurisdictional issue, we must remand.

As we are remanding the matter to the Second District, we will not consider respondents’ other issue, whether there was sufficient medical evidence for the commissioner’s conclusion that the July 11, 1975 work injury caused the 1986 death. Neither do we consider the claimant’s contentions that it was error (1) to apply the Sec. 31-306(i) moratorium where the benefits paid decedent during his life were LHWCA benefits; (2) to apply Sec. 31-306(i) since it had been repealed before decedent’s death; (3) to apply Sec. 31-306(i) since the statute was an unconstitutional denial of Fourteenth Amendment equal protection rights.

Additionally, we note several scrivenor’s or clerical errors in the Finding. In paragraph #16 the commissioner found decedent underwent coronary bypass surgery in March, 1986. As death occurred in February, 1986, coronary bypass surgery in March, 1986 appears impossible. Likewise the assertion in paragraph #5 that on July 11, 1988 the employer was undergoing a strike also is erroneous; we presume that date should be July 11, 1975.

We therefore remand the matter for further proceedings consistent with this opinion.

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

If death occurs later than two years from the date of injury or the first manifestation of a symptom of the occupational disease, the period for which compensation shall be due hereunder shall be reduced by the period for which compensation payments have been made to the deceased employee on account of such injury or occupational disease. BACK TO TEXT

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, 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. BACK TO TEXT