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Freeman v. Hull Dye & Print

CASE NO. 1516 CRB-5-92-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 2, 1994

MARY FREEMAN, Surviving Spouse of EDWARD FREEMAN (Deceased)

CLAIMANT-APPELLEE/CROSS-APPELLANT

v.

HULL DYE & PRINT

EMPLOYER

and

MICHIGAN MUTUAL INSURANCE COMPANY

and

GREATER NEW YORK MUTUAL INSURANCE COMPANY

and

CHUBB GROUP OF INSURANCE COMPANIES

INSURERS

RESPONDENTS-APPELLANTS/CROSS-APPELLEES

APPEARANCES:

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

The respondent-employer and its insurer Michigan Mutual were represented by William B. Bilcheck, Esq., McNamara & Kenney, P.O. Box 8187, Brewster Station, Bridgeport, CT 06605.

The respondent-employer and its insurer Greater New York Mutual were represented by Christopher J. Foley, Esq. and Edward D. O’Brien, Esq., Law Offices of Edward D. O’Brien, 38 Woodland Street, Hartford, CT 06105.

The respondent-employer and its insurer Chubb Group were represented by Kevin J. Maher, Esq. and Carolyn Signorelli, Esq., Maher & Williams, P.O. Box 269, Bridgeport, CT 06601.

The Second Injury Fund was represented by Loida John, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120 who was present at oral argument but did not file a brief.

This Petition for Review from the September 14, 1992 Finding and Award of the Commissioner for the Fifth District was heard September 10, 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. By Finding and Award dated September 14, 1992, the Fifth District Commissioner found that claimant Edward Freeman’s bladder cancer was caused by his workplace exposure to benzidine and awarded appropriate compensation benefits. The trial commissioner also dismissed the claim of Edward Freeman’s widow, Mary Freeman, based on her failure to timely file a dependent’s claim or request a hearing regarding the same. The respondent-employer and its insurers during the time of the alleged occupational exposure have appealed from the September 14, 1992 Finding and Award. Mary Freeman has also appealed from the dismissal of her claim for dependent’s benefits. We affirm the trial commissioner.

The respondents’ appeal is essentially an attempt to have us retry the facts. This we will not do. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 119 (1987). The respondents’ argument boils down to a claim that the commissioner should not have accepted the evidence which supported the finding that Edward Freeman was exposed to benzidine on the job and that this exposure caused his bladder cancer and resulting death; the respondents contend that this evidence was “incomplete”, “inconclusive”, entitled to “little weight” and contrary to other evidence in the record which suggested that Freeman’s cancer was caused by his heavy smoking. “The mere statement of this proposition refutes it.” Id. It was the province of the trial commissioner to resolve any inconsistencies or contradictions in the evidence. Mellor v. Pleasure Valley Mobile Homes, 11 Conn. Workers’ Comp. Rev. Op. 270, 272, 1393 CRB-2-92-3 (1993).

The evidence in the record supports the commissioner’s findings and conclusion, with a reasonable medical probability, that the claimant was exposed to benzidine in the workplace during his employment with Hull Dye and Print and that this exposure was a substantial factor in causing the bladder cancer which led to Edward Freeman’s death. Because the conclusions drawn by the commissioner from the facts found did not result from an incorrect application of the law to the subordinate facts or from an inference illegally or impermissibly drawn from them, we cannot alter that determination. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).1

We now turn to the appeal of the claimant-widow, Mary Freeman. The claimant-widow contends that she met the timely notice requirements of General Statutes Sec. 31-294 and therefore the trial commissioner should not have dismissed her claim for dependent’s benefits. In her brief, the claimant-widow asserts: “An informal hearing in this case was held August 7, 1989 following Edward Freeman’s death April 4, 1989 wherein Mary Freeman, dependent widow, continued the claim started by Edward Freeman in May of 1988. This informal hearing relieves Mary Freeman from the necessity of filing a written notice of claim . . . .”

We recently held that “a widow cannot rely on the claim filed by her deceased husband to satisfy the jurisdictional notice requirements of Sec. 31-294.” Sellew v. Northeast Utilities, 1422 CRB-8-92-5 (decided April 7, 1994). Therefore, a claimant-widow cannot simply continue the claim of her deceased husband as her own; rather, she must assert her separate and independent claim in a timely manner. Id.

The claimant-widow here correctly notes that a timely informal hearing can satisfy the constructive notice provisions of Sec. 31-294.2 Id.; Pich v. Pratt & Whitney, 4 Conn. Workers’ Comp. Rev. Op. 163, 354 CRD-6-84 (1988). However, it is not enough, without more, to simply show that an informal hearing was held shortly after the decedent’s death; rather, in order to come within the constructive notice provisions of Sec. 31-294, the commissioner must find that the widow’s claim under Sec. 31-306 was discussed at that hearing. Sellew v. Northeast Utilities, supra, footnote 4. In the present case, the commissioner determined that a review of the Fifth District file in this matter did not reveal evidence to support such a finding. Because the conclusion drawn by the commissioner from the facts found did not result from an incorrect application of the law to the subordinate facts or from an inference illegally or impermissibly drawn from them, we cannot alter that determination. Fair v. People’s Savings Bank, supra.3

We, therefore, affirm the trial commissioner and deny both the respondents’ appeals and the claimant-widow’s appeal.

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 We note as well that on November 12, 1992, more than ten days after the September 14, 1992 Finding and Award, respondent Greater New York Mutual Insurance Company filed its appeal from the commissioner’s decision. That appeal must be dismissed on the additional ground that it was not timely filed. Conaci v. Hartford Hospital, 11 Conn. Workers’ Comp. Rev. Op. 184, 1263 CRD-1-91-7 (1993); Johnston v. ARA Services, Inc., 7 Conn. Workers’ Comp. Rev. Op. 19, 765 CRD-7-88-8 (1989). BACK TO TEXT

2 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

3 We note as well that the claimant-widow filed her appeal on September 25, 1992, more than ten days after the September 14, 1992 Finding and Award. That appeal must be dismissed on the additional ground that it was not timely filed. See footnote 1, supra. BACK TO TEXT

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