CASE NO. 1770 CRB-2-93-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 9, 1995
GERALD YORK (DECEASED)
GENERAL DYNAMICS CORPORATION/ELECTRIC BOAT DIVISION
NATIONAL EMPLOYERS CO.
SELF INSURED ADMINISTRATOR
LIBERTY MUTUAL INSURANCE CO.
AETNA CASUALTY & SURETY CO.
INSURANCE COMPANY OF NORTH AMERICA (CIGNA)
SECOND INJURY FUND
The claimant was represented by Mark Oberlatz, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., P. O. Drawer 929, Groton, CT 06340.
Respondents-Appellants, Employer, Aetna Casualty & Surety and CIGNA were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033. However, they did not appear at oral argument.
Respondent, National Employers Company was represented by John Greiner, Esq., Murphy & Beane, P. O. Box 590, New London, CT 06320. However, they did not file a brief or participate in oral argument.
Respondent, Liberty Mutual Insurance Company was represented by David Viggiano, 238 West Town Road, Norwich, CT 06360. However, they did not file a brief or participate in oral argument.
Respondent, Second Injury Fund was represented by Barbara Sperber, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120. However, they did not file a brief or participate in oral argument.
This Petition for Review from the June 17, 1993 Finding and Award of the Commissioner acting for the Second District was heard June 10, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.
JESSE M. FRANKL, CHAIRMAN. The respondent insurers have appealed from the June 17, 1993 Finding and Award of the Commissioner for the Second District. They raise several arguments on appeal in support of their contention that the commissioner improperly awarded the decedent total disability benefits and his dependent spouse death benefits. We affirm the trial commissioner’s decision.
Originally, a Finding and Award was issued in this case on March 10, 1988, ordering the payment of total disability benefits from November 1, 1981 to July 31, 1985. The respondents appealed that award, during which time the Second Injury Fund was ordered to pay “the sum listed in the Finding and Award of Compensation dated March 10, 1988.” This Board subsequently ordered that the matter be remanded for further proceedings due to the unavailability of complete transcripts.
On remand, the commissioner conducted several new hearings. He found that the decedent had worked for the respondent employer as a painter and a foreman from March 1951 through October 1981. Throughout his employment, the decedent was exposed to significant quantities of asbestos and asbestos dust. He took early retirement due to breathing difficulties in 1981, two years before he reached the age of 65. At that time, the claimant’s average weekly wage was such that he would have been entitled to the maximum compensation rate. The claimant died on March 7, 1987, primarily from colon cancer with liver metastases, to which his lung cancer contributed.
The commissioner found that the claimant’s work-related exposure to asbestos “significantly contributed to causing his lung cancer, consequent inability to work and subsequent death.” He concluded that the decedent was entitled to total disability benefits from November 1, 1981 to March 7, 1987, and that his surviving widow was entitled to benefits commencing on March 8, 1987.1 The respondents appeal from that decision.
The respondents’ first claim is that the commissioner had no subject matter jurisdiction to enter an award against the respondents because neither the decedent nor his spouse filed a timely notice of claim. Section 31-294c (a) requires a claimant to file a written notice of claim “within three years from the first manifestation of a symptom of the occupational disease . . . which caused the personal injury.” Here, the claimant left work at the end of October 1981, and was subsequently awarded benefits beginning on November 1, 1981. There is no indication from the findings that symptoms of disease had manifested themselves any earlier than October 1981. See Prisco v. North & Judd, 10 Conn. Workers’ Comp. Rev. Op. 154, 156, 1190 CRD-8-91-3 (June 30, 1992). On September 4, 1984, the Workers’ Compensation Commission office in Norwich received a copy of a Form 30C filed by the claimant stating that he had contracted lung cancer as a result of his employment with the respondent. This notice was timely under § 31-294c, as it was filed within three years of the date that the claimant became aware of his occupational disease.
There is no dispute that the decedent’s widow did not file a separate Form 30C for death benefits. This Board decided in Sellew v. Northeast Utilities, 12 Conn. Workers’ Comp. Rev. Op. 135, 138, 1422 CRB-8-92-5 (April 7, 1994), that a widow cannot rely on the claim filed by her deceased husband to satisfy the jurisdictional notice requirements of § 31-294c. Because a dependent’s claim does not vest until the date of death, a separate limitation period is assigned to that claim. Id. Here, the date of death was March 7, 1987. Although the decedent’s widow did not file a Form 30C, it is clear from the record that there was a hearing held on May 6, 1987 regarding her entitlement to such benefits. This satisfies one of the exceptions set forth in § 31-294c (c) which, in the context of this case, provides that a failure to give notice of claim under § 31-294c (a) shall not bar a claim for death benefits if there has been a hearing within one year of the date of death. Thus, we hold that neither of the instant claims was barred by the statute of non-claim.
The respondents also argue that the commissioner improperly allowed into evidence the depositions of three doctors who testified during proceedings under the Federal Longshore and Harbor Workers’ Compensation Act (LHWCA). The commissioner had admitted into evidence an award received by the decedent under the LHWCA for the purpose of establishing a credit under McGowan v. General Dynamics Corporation/Electric Boat Division, 15 Conn. App. 615 (1988), affirmed, 210 Conn. 580 (1989). On July 10, 1991, the commissioner admitted into evidence the depositions of three doctors who had examined the claimant and testified pursuant to the LHWCA proceedings. Although none of that testimony was cited in the commissioner’s Finding and Award, he did note that said depositions had been taken into evidence. The respondents now contend that this was improper because the LHWCA requires a different burden of proof for a claimant to recover than does the Workers’ Compensation Act, and because the federal counsel employed by the respondent employer were not also acting on behalf of the insurance carriers liable under the state act.
Workers’ compensation commissioners are not bound by statutory or common-law rules of evidence, “but shall make inquiry, thorough oral testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” Section 31-298 C.G.S. The trial commissioner has broad discretion to determine the admissibility of evidence, and an evidentiary ruling will not be set aside absent a clear abuse of that discretion. Merchant v. J.S. Nasin Company, 9 Conn. Workers’ Comp. Rev. Op. 122, 123, 952 CRD-2-89-11 (May 1, 1991), citing Dunham v. Dunham, 204 Conn. 303, 324 (1987).
Here, the commissioner did not expressly rely on the challenged depositions in making his Finding and Award, although we do presume that he considered the testimony within them. Thus, it is uncertain whether their admission would constitute harmful error even if they were improperly admitted into evidence. Given the discretion that § 31-298 provides to the commissioner, however, we are unconvinced that he overstepped his bounds in admitting the doctors’ depositions.
The mere fact that the insurers were not a party to the LHWCA proceedings did not lessen the respondent employer’s interest in defending its own liability for the decedent’s lung disease. See 33 U.S.C. § 904 (a). The commissioner reasonably could have concluded that the respondent represented its insurers’ position closely enough during LHWCA proceedings to render the contents of the doctors’ depositions probative. Indeed, the claimant’s attorney asserted at oral argument on appeal that the commissioner offered the respondents an opportunity to cross-examine these doctors, which the respondents declined to do. (We note that the respondents were not present at oral argument to refute this assertion.)
Likewise, we rule that the presumptions regarding the jurisdictional burden of proof in 33 U.S.C. § 9202 did not require the commissioner to refrain from admitting the depositions into evidence. If anything, the employer’s defense strategy is galvanized by the LHWCA requirement that it introduce affirmative evidence that a claimant’s injury is noncompensable. We cannot say that the commissioner should have translated this difference in the burden of proving compensability into a determination that the issues in the LHWCA proceeding were so different as to render the depositions inadmissible. Thus, we conclude that neither the “identity of issues” nor the “identity of interests” was divergent enough between the LHWCA proceedings and the claims under the Workers’ Compensation Act to render the doctors’ depositions inadmissible as a matter of law.
We next address the respondents’ assertion that no evidence exists to support the commissioner’s finding that the decedent was totally incapacitated from November 1, 1981 to July 13, 1984. The commissioner first concluded in the March 10, 1988 Finding and Award that the decedent was entitled to total disability benefits beginning from the point of his October 1981 retirement. As stated above, this Board ordered a remand for further proceedings because a transcript of evidence could not be made available on appeal due to the trial commissioner’s failure to properly record testimony. On remand, the commissioner again concluded that the decedent was entitled to total disability benefits beginning on November 1, 1981.
The commissioner relied primarily on the testimony of the decedent in determining the starting date of his total disability. Because the decedent died prior to the resolution of the first appeal, his testimony could not be re-created on remand and has been lost forever. Contrary to the respondents’ assertions, however, there is other evidence to support the commissioner’s finding of total disability during the period in question. The decedent’s wife testified that the decedent had developed a breathing problem and was regularly coughing up sputum by the time he retired. She also testified that the decedent adopted a drastically more sedentary lifestyle after his retirement, which could be interpreted as an indication that he was not feeling well. Furthermore, the reports of various physicians who treated the decedent agree that he suffered from a cancerous lung tumor that was removed August 1984, which cancer the commissioner found to be the result of asbestos exposure. These facts support the commissioner’s conclusion that the decedent’s retirement was related to the development of his occupational lung disease, and that he was totally disabled after November 1, 1981.
We recognize that the decedent’s inability to re-create his testimony on remand may have impeded somewhat the effectiveness of the respondents’ appeal. Revoking the prior award of benefits, however, would not be the most equitable solution to this unfortunate problem. It is more consistent with the humanitarian spirit of the Workers’ Compensation Act that the claimant’s award be allowed to stand where, through the fault of neither party, the creation of a complete record has become impossible. Accepting the respondents’ invitation to declare a mistrial would only transfer this problem to the decedent’s widow and compound her dilemma with the burden of lengthy relitigation and the uncertainty of witnesses’ fading memories. We decline to pursue that course in this particular case.3
The trial commissioner’s Finding and Award is affirmed.
Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.
1 The commissioner also noted that the Second Injury Fund had mistakenly paid benefits beyond July 31, 1985 in its attempt to comply with the prior order for payment pending appeal, and had continued payment despite its receipt of notification that the respondent employer would voluntarily pay the benefits ordered in the March 10, 1988 award. Thus, although the Fund was entitled to reimbursement of benefits paid during the appeal period, it was not entitled to any interest as its payments were made by mistake. That particular decision has not been appealed. BACK TO TEXT
2 33 U.S.C. §920 provides that “[i]n any proceeding for the enforcement of a claim for compensation under this Act is shall be presumed, in the absence of substantial evidence to the contrary--
(a) That the claim comes within the provisions of this Act
(b) That sufficient notice of such claim has been given.
(c) That the injury was not occasioned solely by the intoxication of the injured employee.
(d) That the injury was not occasioned by the willful intention of the injured employee to injure or kill himself or another. BACK TO TEXT
3 We note that the commissioner is no longer personally responsible for taping formal hearings. All of the Workers’ Compensation Commission districts now have at least one hearing reporter, whose presence should reduce the likelihood of indecipherable tapes being produced at future hearings. BACK TO TEXT