State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Mencarelli v. General Dynamics Corp./Electric Boat Division

CASE NO. 3470 CRB-08-96-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 28, 1998

ALBERT MENCARELLI

CLAIMANT-APPELLEE

v.

GENERAL DYNAMICS CORP./ELECTRIC BOAT DIVISION

EMPLOYER

and

NATIONAL EMPLOYERS CO.

SELF INSURED ADMINISTRATOR

and

AETNA LIFE & CASUALTY

INSURER

and

CIGNA

INSURER

RESPONDENT-APPELLANTS

and

LIBERTY MUTUAL INSURANCE

INSURER

RESPONDENT-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Nathan Shafner, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, 475 Bridge Street, P.O. Drawer 929, Groton, CT 06340.

The respondent employer and its insurers Aetna and CIGNA were represented by Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

The respondent National Employers was represented by John Greiner, Esq., Murphy & Beane, Two Union Plaza, P.O. Box 590, New London, CT 06320.

The respondent Liberty Mutual was represented by Debra Dee, Esq., Law Offices of Nancy S. Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033, who did not appear at oral argument.

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

This Petition for Review from the November 4, 1996 Finding and Award of the Commissioner acting for the Eighth District was heard June 13, 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 employer General Dynamics Corp./Electric Boat Division and its insurers Aetna and CIGNA (hereinafter “respondent appellants”) have appealed from the November 4, 1996 Finding and Award of the Commissioner acting for the Eighth District. In that decision the trial commissioner concluded that the decedent died of carcinoma of the lung, and that the proximate cause of the carcinoma was his exposure to asbestos during the course of his employment. In support of their appeal, the respondent appellants contend that the record does not support the trial commissioner’s determination that the decedent was exposed to asbestos during his employment. The respondent appellants further contend that the trial commissioner should have found a zero compensation rate for the claimant dependent widow under the holding of Green v. General Dynamics Corp., 44 Conn. App. 112 (1997).

Initially, we note that the claimant has filed a Motion to Dismiss, contending that the respondent appellants failed to file their reasons of appeal on or before December 8, 1996. As the claimant has not alleged that she suffered any prejudice due to the late filing, and as the claimant has filed the Motion to Dismiss in an untimely manner, we deny the claimant’s motion.1

The trial commissioner found the following relevant facts. The decedent was employed by the respondent employer Electric Boat from April 10, 1952 until July 31, 1991. During this period, the employer was at various times self-insured or insured by Liberty Mutual, CIGNA, or Aetna. The decedent died on April 18, 1993 due to carcinoma of the lung. His dependent widow, the claimant, seeks benefits under § 31-306, alleging that the decedent’s exposure to asbestos while at work caused his disease. The claimant’s treating physician was Dr. Bigos, a pulmonary specialist. In his history taken from the decedent, Dr. Bigos noted asbestos exposure at work during the 1950’s.

The trial commissioner further found that the decedent worked in Department 460 at Electric Boat with Thomas Britagna from 1971 to 1983. In that department, the employees were required to work on old submarines during overhaul and on new submarines under construction. Their duties on the old submarines involved working with other trades, including laggers who removed old insulation from pipes and welders who cut pipes. These activities often made the air dusty. The insulation on the pipes was a white material which a co-worker, Michael Zaks, believed to be asbestos. Both Mr. Britagna and Mr. Zaks testified, and the trial commissioner found, that asbestos blankets were used when employees in Department 460 worked on the old submarines. Mr. Britagna was aware that asbestos was being removed until 1977 or 1978. The decedent’s treating physician, Dr. Bigos, concluded that the decedent’s exposure to asbestos during his employment was a significant contributor to the carcinoma which caused his death.

In support of their appeal, the respondent appellants contend that the claimant failed to prove that the decedent was exposed to asbestos during his employment, and that the decedent’s co-workers did not provide sufficient testimony on this issue. Whether an injury arose out of and in the course of the employment requires a factual determination. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). The power and duty of determining the facts rests on the trial commissioner as the trier of fact. This fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In the instant case, the trial commissioner’s conclusion that the decedent was exposed to asbestos during his employment is supported by the testimony of two co-workers and by the history related to the treating physician, Dr. Bigos, by the decedent. Although the decedent’s statements to Dr. Bigos constitute hearsay, here the decedent was not available to testify. An expert is permitted to base his opinion on statements made to him by his patient for the purpose of obtaining medical treatment or advice, and “of course, he may also testify to such statements.” Brown v. Blauvelt, 152 Conn. 272, 274 (1964). Thus, the trial commissioner’s decision is fully supported by the evidence, including Dr. Bigos opinion, based upon reasonable medical certainty, that the decedent’s exposure to asbestos during his employment was a significant contributor to the carcinoma which caused his death. (Finding No. 18; March 30, 1994 Depo. at p. 10).

In further support of their appeal, the respondent appellants contend that the computation of the claimant’s weekly benefit rate should be zero pursuant to the holding of the Appellate Court in Green, supra. However, the Appellate Court’s decision was subsequently reversed in Green v. General Dynamics Corp., 245 Conn. 66 (1998). In that decision, the Supreme Court held that § 31-310c should be applied retroactively. Specifically, the court held that “the provisions of § 31-310c applying the greater sum of calculations based on the prevailing wage when the occupational disease is diagnosed or the wage resulting from use of the last twenty-six weeks of employment would apply in the case of an occupational disease diagnosed in 1989.” Id. at 78. Section 31-310c, which became effective on October 1, 1990, provided in relevant part:

[I]n the case of an occupational disease which manifests itself at a time when the worker has not worked during the twenty-six weeks immediately preceding the diagnosis of such disease, the claimant’s average weekly wage shall be considered to be equivalent to the greater of (1) the average weekly wage determined pursuant to section 31-310 and adjusted pursuant to section 31-307a or (2) the average weekly wage earned by the claimant during the twenty-six calendar weeks last worked by the claimant, which wage shall be determined in accordance with said section 31-310 and adjusted pursuant to said section 31-307a.

In the instant case, the trial commissioner calculated the claimant’s benefit rate based upon the last twenty-six weeks worked by the decedent. (Finding No. 22). We find no error.

Finally, we will address the respondent appellants’ contention that this matter should be remanded in order for a determination to be made regarding apportionment. In the instant case, there were three insurers who insured the employer Electric Boat during various periods of time, and Electric Boat was self-insured from September 1, 1980 to July 31, 1991. (Finding No. 3). We thus agree that this case must be remanded in order for a determination to be made regarding apportionment, and for a determination as to which of the respondent insurers is responsible for administering the claim.

This case is remanded to the Eighth District in accordance with the above.

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

1 The claimant filed her Motion to Dismiss on March 21, 1997 contending that the respondents’ reasons of appeal were due on December 8, 1996. The claimant’s Motion to Dismiss should have been filed within ten days of the day the reasons of appeal became late, pursuant to Practice Book § 4056. Thus, the late filing of the respondents’ reasons of appeal is deemed waived. Sager v. GAB Business Services, 11 Conn. App. 693, 698 (1987); Matey v. Dember, 3153 CRB-5-95-8 (Jan. 10, 1997). BACK TO TEXT

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