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Murphy v. General Dynamics Corp./Electric Boat Division

CASE NO. 1654 CRB-2-93-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 29, 1995

TIMOTHY MURPHY

CLAIMANT-APPELLEE

v.

GENERAL DYNAMICS CORP./ELECTRIC BOAT DIVISION

EMPLOYER

RESPONDENT-APPELLANT

and

NATIONAL EMPLOYERS CO.

SELF-INSURED ADMINISTRATOR

and

INA/CIGNA INSURANCE COMPANIES

INSURER

RESPONDENTS-APPELLANTS

and

AETNA CASUALTY & SURETY CO.

INSURER

RESPONDENTS-APPELLANTS

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Mark W. Oberlatz, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge St., Groton, CT 06340.

Respondent employers, INA/CIGNA and Aetna Casualty & Surety were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

At the trial level, National Employers Company was represented by Peter D. Quay, Esq., Murphy & Beane, 2 Union Plaza, New London, CT 06320.

At the trial level, Liberty Mutual Insurance Co. was represented by David Viggiano, 20 Western Blvd., Glastonbury, CT 06033.

This Petition for Review from the February 9, 1993 Finding and Award of the Commissioner acting for the Second District was heard April 21, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Amado J. Vargas and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer has appealed from the February 9, 1993 Finding and Award of the Commissioner acting for the Second District. In that finding and award, the trial commissioner concluded that the claimant suffered a compensable lung disease. In support of its appeal, the employer contends that the claimant was informed in 1980 by his treating physician that his occupational lung disease was related to his employment, and therefore the claimant’s notice of claim filed on February 21, 1984 was time barred by § 31-294 C.G.S. We agree with the employer, and thus reverse the trial commissioner’s award of benefits.

The claimant was employed continuously by the respondent employer from 1935 until he retired in 1977. The claimant worked as a sheet metal helper, an apprentice, a welder, and finally as a supervisor. The claimant worked with asbestos and was exposed to welding fumes and smoke. The claimant also smoked cigarettes regularly during the entire period of his employment. The claimant’s work area had very little ventilation until the 1960s. The claimant had a physical examination by his family doctor, Dr. Murray, on June 30, 1980. (Deposition of Dr. Murray at p. 8) During that exam, the claimant told Dr. Murray that “he believed he had asbestos in his lungs because of work exposure.” (Finding of Fact No. 9) Dr. Murray therefore referred the claimant to Dr. Buckley, a pulmonologist, for an examination. Dr. Buckley examined the claimant and issued a medical report dated July 29, 1980.

In his medical report of July 29, 1980, Dr. Buckley stated, in pertinent part, that the claimant had “moderately severe obstructive pulmonary disease on pulmonary function test and a solitary pleural plaque consistent with asbestos etiology on chest x-ray.” Dr. Buckley further states in the report that the claimant “has significant degrees of chronic obstructive disease, probably related to heavy smoking history as well as welding smoke and fume exposure.” (See also Finding of Fact No. 11) “Dr. Murray testified that in July 1980 he told the claimant of Dr. Buckley’s findings and that the claimant was disturbed to find that Dr. Buckley had not diagnosed him with asbestosis.” (Finding of Fact No. 13) Dr. Murray testified that he reviewed Dr. Buckley’s medical report dated July 29, 1980 with the claimant in “quite detail.” (Deposition of Dr. Murray, p. 10) In addition, the claimant testified that Dr. Buckley discussed with him his exposure to welding fumes.1

The issue on appeal is whether the claimant filed a timely notice of claim. Section 31-294c, as it existed in June, 1980, provided in 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 first manifestation of a symptom of the occupational disease....” In 1980, the legislature enacted P.A. 80-124 which changed the one year limitation period for filing an occupational disease claim to “three years from the first manifestation of a symptom of the occupational disease.” See Mingrone v. Burndy Corporation, 9 Conn. Workers’ Comp. Rev. Op. 252, 254, 1109 CRD-7-90-9 (Nov. 21, 1991). The employer contends that the manifestation of symptoms of the claimant’s occupational disease occurred in June, 1980, and thus the claimant’s notice of claim filed on February 21, 1984 is untimely, under either the one year or the three year provision. We agree.

In Bremner v. Eidlitz & Son, Inc., 118 Conn. 666, 669-70 (1934), the Connecticut Supreme Court held that the statute of limitations as to occupational disease begins to run only when symptoms are manifested, and that the symptoms are only manifested when they “plainly appear, not when it was merely suspected or doubtful.” The Supreme Court further stated:

(A)n employee cannot close his understanding to that which is clear and plain, and if the circumstances are such that a reasonable man would clearly recognize the existence of a symptom of an occupational disease, it must be regarded as manifest in the sense of the statute; for in the law it is usually so that what a man ought to know he is conclusively deemed to know.
Bremner, supra, at 670.

“The date of manifestation is therefore a factual question. On such a question we will not disturb the trial commissioner’s conclusions unless they are without evidence, contrary to law or based on impermissible or unreasonable factual inferences.” Deangelo v. Allegheny Ludlum Corp., 9 Workers’ Comp. Rev. Op. 126, 128, 970 CRD-8-90-1 (May 16, 1991), citing Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In the instant case, the record does not support the trial commissioner’s conclusion that the claim filed on February 21, 1984 was timely. Rather, the uncontradicted evidence is that the claimant was advised by Dr. Murray that he suffered from obstructive pulmonary lung disease in July, 1980. Moreover, the evidence, including the testimony of the claimant and the claimant’s treating physician Dr. Murray, together with the report dated July 29, 1980 written by Dr. Buckley, indicates that the claimant was aware that his obstructive pulmonary lung disease was related to his exposure to welding fumes at the workplace. Accordingly, the claimant’s notice of claim which was filed on February 21, 1984, over three and one-half years later, was untimely pursuant to § 31-294 C.G.S.

The trial commissioner’s award of benefits is reversed.

Commissioners Amado J. Vargas and Michael S. Miles concur.

1 The following is an excerpt of the claimant’s testimony from the hearing on May 10, 1990, at page 12.

MS. KELLY: When you went to see Dr. Murray, what were you complaining about?

MR. MURPHY: My health, and he sent me to Buckley.

MS. KELLY: And what did Dr. Buckley do?

MR. MURPHY: Took X-rays and everything. He says, Tim, I think I’ve seen some fumes; the smoke he said; I think there’s some welding fumes. He’s the only one- there’s welding fumes in your lungs. I told him what I did, and he knew what I did, and he understood.

...

COMMISSIONER WALLER: When did you start having problems with your lungs?

MR. MURPHY: Oh, in nineteen- let’s see- Murray sent me to Buckley- when Murray sent me to Buckley. BACK TO TEXT

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