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Muldoon v. New England Installation et al.

CASE NO. 3345A CRB-4-96-7

CASE NO. 3345B CRB-4-96-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 3, 1997

JEAN MULDOON, surviving widow of JOHN MULDOON

CLAIMANT-APPELLEE

v.

NEW ENGLAND INSTALLATION

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

and

C.N. FLAGG & COMPANY

EMPLOYER

and

KEMPER GROUP

INSURER

and

CROUSE NUCLEAR ENERGY

EMPLOYER

and

ZURICH INSURANCE CO.

INSURER

and

HOME INSURANCE CO.

INSURER

and

CUMMINGS INSULATION CO.

EMPLOYER

and

CNA INSURANCE

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Robert Carter, Esq., Carter & Civitello, One Bradley Rd., Woodbridge, CT 06525.

The respondents New England Installation, Liberty Mutual Insurance, C.N. Flagg, Kemper Insurance, Crouse Nuclear Energy, Zurich-American Insurance, Home Insurance, Cummings Insulation, and CNA Insurance were represented by James L. Sullivan, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430.

The respondents Cummings Insulation and CNA Insurance were represented by Howard Levine, Esq., Law Offices of Grant Miller, 29 South Main St., West Hartford, CT 06107.

The respondent Kemper Insurance was represented by Tracy Cleary, Esq., Law Offices of Michael Brodinsky, P.O. Box 35, North Haven, CT, 06473.

The Second Injury Fund was represented by Michael Belzer, Esq., Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120.

These Petitions for Review from the May 16, 1996 Finding and Award and the July 15, 1996 Finding and Dismissal both of the Commissioner acting for the Fourth District were heard February 28, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent appellants New England Installation, Liberty Mutual Insurance, C.N. Flagg, Kemper Insurance, Crouse Nuclear Energy, Zurich-American Insurance, Home Insurance, Cummings Insulation, and CNA Insurance (hereinafter “respondents”) have petitioned for review from the May 16, 1996 Finding and Award and the July 15, 1996 Finding and Dismissal of the Commissioner acting for the Fourth District. In the May 16, 1996 decision the trial commissioner found that the decedent’s exposure to workplace asbestos from 1974 to 1984 was a significant cause of his death due to asbestosis and chronic obstructive pulmonary disease. In the July 15, 1996 decision the trial commissioner concluded that the respondents failed to provide timely notice of intent to transfer pursuant to § 31-349.

I. MAY 16, 1996 FINDING AND AWARD

We will first address the respondents’ appeal from the May 16, 1996 Finding and Award. In that decision the trial commissioner found that the decedent’s workplace exposure to asbestos from 1975 to 1984 was a significant cause of his death which occurred on February 24, 1995 due to asbestosis and chronic obstructive pulmonary disease. In support of their appeal, the respondents contend that the medical evidence does not support the trial commissioner’s decision regarding causation.1 Specifically, the respondents contend that the medical opinion of Dr. Cullen was not made with a reasonable degree of medical probability. We need not reiterate the facts in the instant case, as they have been adequately set forth in Muldoon v. Homestead Insulation, 10 Conn. Workers’ Comp. Rev. Op. 255, 1226 CRD-4-91-5 (Jan. 13, 1993), aff’d., 231 Conn. 469 (1994).

The commissioner acts as the trier of fact in a workers’ compensation case and is charged with determining the credibility of evidence. This board must not usurp that function. Six v. Thomas O’Connor & Co., 235 Conn. 790, 798-99 (1996); Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979). The recent Supreme Court in Six, supra, has reemphasized the need for deference to the findings of the trial commissioner where it is possible to cull support for the decision from the record. “The board . . . must not disturb the commissioner’s conclusion as long as it is sustainable by the underlying facts.” Six, supra, at 801.

In the instant case, the trial commissioner found that the decedent’s exposure to asbestos from 1975 through 1984 constituted a “significant contributory effect on the death of the decedent... and constitutes a proximate cause of his death.” (Finding 32G). The trial commissioner’s conclusion is supported by the testimony of Dr. Cullen, who opined that the asbestos exposure from 1975 to 1984 was a “major contributing cause to his death.” (9/7/95 Deposition of Dr. Cullen at p. 12). Dr. Cullen testified regarding said period of exposure: “... I believe that it would be absolutely obvious that that same period of exposure contributed to his death.” (9/7/95 Deposition of Dr. Cullen at p. 9-10). As the trial commissioner’s determination regarding causation is supported by the record, it thus may not be disturbed. Six, supra; see also Muldoon, supra, 231 Conn. at 476.

The trial commissioner’s decision is affirmed. Interest is awarded pursuant to § 31-301c(b) on any benefits unpaid during the pendency of this appeal.

II. JULY 15, 1996 FINDING AND DISMISSAL

We now turn to the trial commissioner’s July 15, 1996 Finding and Dismissal which denied the transfer of liability to the Second Injury Fund. The respondents contend that timely notice was filed with the Fund pursuant to § 31-349. (Respondents’ Brief at p. 10). Alternatively, the respondents contend that it was impossible to provide timely notice under § 31-349 because the respondents had contested the claim for approximately nine years. We find no error on the part of the trial commissioner.

Section 31-349 (Rev. to 1985) provides that “[a]s a condition precedent to the liability of the second injury fund, the employer or his insurance carrier must, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case....” The term “one-hundred-four-week period” refers to the first 104 weeks of the claimant’s disability under § 31-349. Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 394 (1993).

In the instant case, a stipulation was approved on February 15, 1977 for occupational lung disease due to asbestos exposure from 1947 through 1974. Thereafter, the decedent returned to employment which involved further asbestos exposure. On June 19, 1987 the decedent filed a claim for increased asbestosis due to exposure during his employment from 1975 through 1984. The decedent was disabled commencing July 1, 1986 through April 26, 1991 and continuing until his death on February 24, 1995. (Finding No. 10; 10/17/95 TR. at 19-20). The attorney representing American Mutual Liability Insurance Company and Robert Keasbey Company filed a notice of intent to transfer on or about April 3, 1987. This notice was filed two months prior to the decedent’s June 19, 1987 notice of claim. The trial commissioner concluded that said notice was not proper pursuant to § 31-349 because there was no pending claim at the time the notice was filed. The trial commissioner further found that except for the April 3, 1987 notice, none of the respondents filed a notice pursuant to § 31-349 prior to 1991. In their brief, the respondents do not dispute this finding.

Decisions such as Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382 (1993) and Davis v. Norwich, 232 Conn. 311 (1995) have required strict compliance with the notice provisions of § 31-349. However, our Supreme Court has noted that “further construction of the notice provision, when and if it becomes necessary, would not require a type of notice that is impossible to give.” Vaillancourt, supra, 392-93 n. 10. In Marano v. Timex Corporation, 14 Conn. Workers’ Comp. Rev. Op. 207, 1774 CRB-5-93-7 (July 27, 1995), the claimant did not present the respondent with a claim for workers’ compensation benefits until after the § 31-349 filing deadline had passed, thus rendering it impossible for the respondent to file timely notice with the Fund pursuant to § 31-349. Because of the impossibility of filing timely notice, this board held the respondent’s notice to be sufficient as it was filed with the Fund within two months after discovery of the claim.

In contrast, in the instant case the decedent was disabled commencing July 1, 1986 and filed his notice of claim on June 19, 1987. The 104 week period thus commenced on July 1, 1986, and the ninetieth day prior to the expiration of the 104 weeks occurred on or about April 2, 1988. Thus, it was certainly not impossible for the respondents in this case to file a timely notice pursuant to § 31-349. Specifically, the respondents could have filed a timely notice pursuant to § 31-349 anytime after receiving the notice of claim on or about June 19, 1987 until April 2, 1988.2 The respondents’ contention that notice to the Fund could not be filed until a Finding and Award was issued on April 26, 1991 is without merit, as timely notice could have been filed which preserved the respondents’ request to transfer until an award was issued or a voluntary agreement was reached. See Reising v. Electric Boat, 13 Conn. Workers’ Comp. Rev. Op. 40, 1609 CRB-2-92-12 (Dec. 6, 1994).

In Reising the board explained as follows: “Assuming that compensability of an employee’s injury is being challenged properly, it would be unreasonable to expect a respondent to deliver a copy of a nonexistent agreement or award to the second injury fund. It would not be impossible, however, for an employer or insurer to comply with the other requirements of § 31-349(b).... Requiring the submission of such information is consistent with the purpose of the notice provision.” Id. at 42 (emphasis added).

The trial commissioner’s decision is affirmed.

Commissioners James J. Metro and John A. Mastropietro concur.

1 At oral argument, Attorney James L. Sullivan specifically abandoned his argument regarding the applicability of Green v. General Dynamics Corp., 44 Conn. App. 112 (1996). BACK TO TEXT

2 The respondents contend in their brief that it was “impossible” to provide timely notice because the notice of claim “was filed more than 103 weeks after the date of injury....” (Respondents’ Brief at p. 8-9). This argument has no merit because the 104 week period referred to in § 31-349 is the first 104 weeks of disability, which in this case commenced on July 1, 1986. See Six v. Thomas O’Connor & Co., 235 Conn. 790 (1996). BACK TO TEXT

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