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Sellew v. Northeast Utilities and Hartford Electric Light Co.

CASE NO. 1422 CRB-8-92-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 7, 1994

GLADYS SELLEW, DependentWidow of ROLAND SELLEW (Deceased) and THE ESTATE OF ROLAND SELLEW

CLAIMANT-APPELLEE

v.

NORTHEAST UTILITIES and HARTFORD ELECTRIC LIGHT CO.

EMPLOYERS

RESPONDENT-APPELLANT

and

HARTFORD INSURANCE GROUP and TRAVELERS INSURANCE CO. and TWIN FIRE INSURANCE CO. and LIBERTY MUTUAL INSURANCE CO.

INSURERS

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Lindalea P. Ludwick, Esq., Sklarz & Early, P.O. Box 1872, New Haven, CT 06508.

The respondent-employers were represented by Jonathan F. Reik, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066. The respondent-insurers Hartford Insurance Co., Travelers Insurance Co. and Twin Fire Insurance Co. were represented by Margaret E. Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412. The respondent-insurer Liberty Mutual Insurance Co. was represented by Carolyn A. Signorelli, Esq., formerly of Maher & Williams, P.O. Box 269, Bridgeport, CT 06601. The Second Injury Fund was represented by Nancy R. Sussman, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120 who did not file a brief or appear at oral argument.

This Petition for Review from the May 7, 1992 Finding and Award of the Commissioner for the Eighth District was heard March 26,1993 before a Compensation 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 respondents have petitioned for review from the Eighth District Commissioner’s May 7, 1992 Finding and Award. In that decision, the trial commissioner found that the decedent’s long term exposures to asbestos throughout his employment with the respondent-employer played a major causative role in his development of adenocarcinoma of the lung and that the decedent died as a result of bronchoalveolar carcinoma of the lung; that the applicable weekly compensation rate is based on the decedent’s average weekly wages when he last worked prior to his retirement in 1981, notwithstanding the fact that he did not become incapacitated as a result of occupational exposure until 1985; that the provisions of General Statutes Sec. 52-572r(c)1 prevent the respondents from successfully claiming any lien, credit or offset as a consequence of the claimants’ settlement of third-party product liability cases; that the widow’s claim is not barred by General Statutes (Rev. to 1985) Sec. 31-294, the statute of non-claim; and awarded benefits to the claimant widow pursuant to General Statutes 31-306.2 On appeal, the respondents challenge each of these factual findings in support of the widow’s award. We affirm the trial commissioner in part but remand for further proceedings with respect to Sec. 31-294, the statute of non-claim.

The respondents’ first three claims require little discussion. The commissioner’s finding that the decedent was exposed to asbestos throughout his employment with the respondent employer which exposure caused his illness and death, is amply supported by probative and competent evidence and reasonable inferences drawn from that evidence. We cannot substitute our findings for those of the commissioner. Since the conclusions reached from the facts found did not result from incorrect applications of law or from inferences illegally or unreasonably drawn from those facts, those conclusions must stand. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Likewise, the commissioner correctly based his calculation of the compensation rate on our decision in Orcutt v. Ohmweave Company, 8 Conn. Workers’ Comp. Rev. Op. 125, 129, 822 CRD-2-89-2 (1990). Additionally, we have recently determined that an employer has no right to an offset or credit against the proceeds of any third party products liability action where the date of injury, here 1985, was between October 1, 1979 and July 1, 1993, when Sec. 52-572r(c) was in effect. Krampetz v. Uniroyal Chemical, 1367 CRD-5-92-1 (decided December 8, 1993).

The respondents’ argument that the widow’s claim was not timely, however, requires some discussion. The decedent’s occupational disease manifest itself, for statute of limitation purposes, on August 29, 1985. He died nearly a year later on August 13, 1986. The decedent filed a notice of claim (Form 30-C) on April 7, 1986, four months prior to his death. After his death, his claim for temporary total disability benefits from August, 1985 to August, 1986 was pursued by his estate. The claimant widow never filed a separate, written notice of claim for death benefits, but did pursue that claim as part of the proceedings below.

The trial commissioner found the claimant widow’s claim to be timely based on the decedent’s timely written notice of claim. See Finding and Award, paragraph 10. While our cases have recognized that a dependent’s claim is separate and distinct from the claim of the injured worker or his estate for some purposes; see, e.g., De La Torre v.State of Connecticut, 2 Conn. Workers’ Comp. Rev. Op. 95, 148 CRD-1-82 (1984); our statute and cases have also recognized, in other contexts, the linkage between disability compensation to the employee and survivor’s compensation to dependents. See, e.g., Funaro v. Town of Hamden,7 Conn. Workers’ Comp. Rev. Op. 40, 43, 649 CRD-3-87 (1989). Our cases, however, have yet to address the precise issue posed by this case, namely, whether an employee’s notice of claim will satisfy Sec. 31-294 with respect to a subsequent claim for dependent’s benefits arising after the employee’s death.

While an injured workers’ claim and his dependent’s claim invariably arise out of the same compensable injury, this fact cannot obscure the notion that “the classes of compensation awarded an employee and his dependents are separate and independent of each other.” Biederzycki v. Farrel Foundry & Machine Co., 103 Conn. 701, 704 (1926).Thus, with respect to these different types of claims, Sec. 31-294 provides different limitation periods for the timely filing of workers’ claims and their dependents’ claims. See Capen v. Electric Boat Division, 1394 CRB-2-92-3 (decided December 30, 1993); Maher v. State of Connecticut, 5 Conn. Workers’ Comp. Rev. Op. 19, 374 CRD-4-85 (1988). Part of the justification for the separate limitation period assigned to a dependent’s claim is the very practical consideration that a dependent’s claim does not vest until the date of death. Capen v. Electric Boat Division, supra; Maher v. State of Connecticut, supra. These separate limitation periods set forth in Sec. 31-294 and the practical reason which justifies them, therefore, support the conclusion that a widow cannot rely on the claim filed by her deceased husband to satisfy the jurisdictional notice requirements of Sec. 31-294.

Alternatively, the claimant widow contends that no written notice of claim was required because an informal hearing was held within three years of the first manifestation of a symptom of the occupational disease. A timely informal hearing can satisfy the constructive notice provision of Sec. 31-294.3 Pich v. Pratt & Whitney, 4 Conn. Workers’ Comp. Rev. Op. 163, 354 CRD-6-84 (1988). The trial commissioner, however, did not make any factual findings on this issue.4 Accordingly, a remand for further factual findings regarding the subject matter of that informal hearing and for a determination of the timeliness of the widow’s claim pursuant to Sec. 31-294 is necessary.5

We therefore affirm in part and reverse in part and remand for further proceedings. The respondents’ appeal is sustained to the extent that the commissioner is now required to make findings and reach a conclusion on the timeliness issue pursuant to Sec. 31-294, in accordance with the dictates of this opinion.

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

1 General Statutes Sec. 52-572r(c), which became effective October 1, 1979 and was repealed effective July 1, 1993, provides: “Neither the employee nor [its workers’ compensation insurer] shall have any lien upon any judgment received in any product liability claim, or any right of subrogation if the claim against the third party is a product liability claim.” BACK TO TEXT

2 The commissioner dismissed the claim of the claimant Estate of Roland Sellew for temporary total disability benefits between August 29, 1985 and August 13, 1986, because no medical evidence was introduced on the subject. The claimant estate has not appealed from this dismissal. BACK TO TEXT

3 General Statutes (Rev. to 1985) Sec. 31-294 provides in pertinent part: “If there has been a hearing or a written request for a hearing or an assignment for a hearing . . . within said three-year period from the first manifestation of a symptom of the occupational disease . . ., no want of [written] notice of claim shall be a bar to the maintenance of proceedings . . . .” BACK TO TEXT

4 The district file in this matter reveals that an informal hearing took place on September 30, 1986. The notice of that hearing, however, makes no reference to the claimant widow or to a claim of death as a result of the injury. The commissioner’s notes from that informal hearing do indicate the decedent’s date of death and mention the widow, but those notes are not clear as to whether a claim under Sec. 31-306 was discussed in order to bring the hearing within the constructive notice provision. See Oliver v. Electric Boat Division, 3 Conn. Workers’ Comp. Rev. Op. 117, 225 CRD-2-83 (1986). BACK TO TEXT

5 We recognize that the trial commissioner whose decision we now remand for further proceedings is no longer able to determine the issue which must be addressed on remand. As evidence bearing on that issue was not fully developed in the proceedings which are the subject of this appeal and as that issue can be addressed independently of the prior proceedings, the parties will be entitled to a trial de novo on the limited factual and legal issue which is the subject of our remand: whether claimant widow met the hearing exception to timely written notice provided in Sec. 31-294.

We further note that, during the proceedings on remand, those present at the September 30, 1986 informal hearing may be called as witnesses concerning the subject matter of that informal hearing. Given the limited purpose for which such evidence is to be considered, it is unlikely that such evidence will violate the principles of Daniele v. Angelo Monarca, Inc., 6 Conn. Workers’ Comp. Rev. Op. 25, 519 CRD-3-86 (1988). Additionally, to the extent that the parties wish to call the commissioner who presided at the September 30, 1986 informal hearing as a witness, such testimony is admissible so long as it comes within the confines of Gold v. Warden, 222 Conn. 312 (1992). BACK TO TEXT

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