CASE NO. 4492 CRB-5-02-2
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
FEBRUARY 21, 2003
CRAIG W. TUCKER
LIBERTY MUTUAL INSURANCE CO.
The claimant was represented by Paul E. Daddario, Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.
The respondents were represented by John Ward, Esq., Law Office of Nancy S. Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033.
This Petition for Review from the January 22, 2002 Finding and Award of the Commissioner acting for the Fifth District was heard August 23, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the January 22, 2002 Finding and Award of the Commissioner acting for the Fifth District. His argument on appeal is that the trier erred by finding that his chronic obstructive pulmonary disease (COPD) and restrictive lung disease were unrelated to a compensable incident of April 6, 2000. We find no error, and affirm the trial commissioner’s decision.
The claimant began working for the respondent Connecticut Winpump on or about April 6, 2000, as a deliveryman and warehouse worker. On that date, he loaded and delivered tanks of water softener, bags of black powder, and bags of sea salt. During the day, he noticed a salty taste in his mouth and a burning sensation in his eyes. Some of the bags were broken, and the air was dusty. The next day, he returned to work to clean the warehouse and dispose of the spilled chemicals, and observed irritation in his eyes and nose. He was terminated from the job after complaining to his supervisor that morning about the condition of his delivery truck. By the following week, the claimant was suffering from nausea and breathing difficulties.
On April 13, 2000, the claimant consulted his family physician, Dr. Bellofiore, who saw the claimant several times thereafter, but made no comment regarding his work capacity or the cause of his respiratory complaints. Dr. Bellofiore eventually referred the claimant to a pulmonary specialist, Dr. Polnitsky. On July 28, 2000, Dr. Polnitsky found that he suffered from reactive airway disease that might be related to his history of smoking. The doctor stated that there might have been an exacerbation of that disease due to his inhalation of sodium carbonate monohydrate at Connecticut Winpump. He found no evidence of permanent lung damage, however, and thought it unlikely that the claimant suffered any systemic effects due to the workplace chemical exposure. He did believe that said exposure caused increased bronchial hyperactivity that precipitated bronchiospasm and resulted in a 15% pulmonary disability.
The deposition of Dr. Gerardi, another pulmonary specialist, was also introduced into evidence. Dr. Gerardi noted the claimant’s 23-year history of smoking 1½ packs of cigarettes daily, and his morbid obesity (weight: 383 pounds). He diagnosed COPD due to the smoking and restrictive lung disease caused by obesity, which contributed equally to a 20% lung disability. No permanent lung injury was linked to the workplace chemical exposure. The trier ultimately found that the claimant was indeed exposed to chemicals at work, and that the respondents were precluded from contesting the compensability of that injury, as they did not file a Form 43 within 28 days of the date the claimant filed his Form 30C. However, the trier also found that the claimant had failed to prove within a reasonable degree of medical probability that this workplace exposure caused any disability. The claimant now appeals that ruling to this board.
The essential question before us today is largely one of statutory interpretation. In determining that the claimant’s lung condition was not caused by the compensable injury of April 6, 2000, the trier drew a line between the acceptance of that injury and the attribution of the claimant’s disability to that injury. The claimant contends that this was improper, as his successful preclusion of the respondents’ defense requires them to accept the compensability of his claimed injury—the entire lung disability—as opposed to the incident itself, with no consequences presumptively attached. Section 31-294c(b) explains that an employer who fails to file notice contesting liability (e.g., a Form 43) within 28 days after receiving a written notice of claim, and who fails to commence payment for the alleged injury within said 28 days, “shall be conclusively presumed to have accepted the compensability of the alleged injury or death.” However, an employer who fails to file a Form 43 within 28 days but begins making compensation payments during that time reserves the right to contest “the employee’s right to receive compensation on any grounds or the extent of his disability within one year from the receipt of the written notice of claim.”
The trier made no finding as to whether the respondents began paying compensation within 28 days of their receipt of the April 13, 2000 Form 30C that the claimant personally prepared and sent to the employer via certified mail. However, the record strongly indicates that no such action was taken. The respondents filed their notice of contest on June 18, 2000 with the claimant’s attorney, and on June 22, 2000 with this Commission. In the claimant’s Motion to Correct, which the trier denied in its entirety, he sought findings of total disability from April 12, 2000 through July 24, 2000, partial disability from that date through October 5, 2000, and a maximum medical improvement date of October 6, 2000, at which point permanency benefits would have been payable. His request for disability benefits first appeared on a formal hearing notice dated December 29, 2000, which had been issued for a February 8, 2001 hearing. At that hearing, the claimant’s counsel articulated a claim for disability benefits from April 12, 2000 forward, with no mention of any offset being due for advances. Transcript, p. 5. Further, he referenced the fact that some medical bills were outstanding, while others had been paid by the claimant’s health insurance. Id., p. 6.
As the respondents neither filed a timely Form 43 or began paying the claimant benefits within 28 days of receipt of his notice of claim, we presume that they have accepted the compensability of the claimant’s alleged injury pursuant to § 31-294c(b). With respect to the nature of that injury, the Form 30C lists the body part as “lungs,” and describes an April 6, 2000 injury of “breathing sodium c[h]loride dust from unloading truck.” The respondents are thus deemed to have accepted the compensability of the April 6, 2000 lung injury described in this notice, and may not thereafter contest liability. See Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 611 (2000); Black v. London & Egazarian Associates, Inc., 30 Conn. App. 295, 304 (1993). The claimant urges that the mandated acceptance of this injury incorporates an assumption of liability for his entire lung disability, regardless of its actual cause.
We note, however, that there is a clear distinction in § 31-294c(b) and in our case law between the right to contest liability for an injury, and the right to contest the extent of disability attributable to such an injury. A divergence between these two concepts has been present in the preclusion statute for many years. Prior to 1993, there was language in § 31-294c(b) and its predecessor, § 31-297(b), which stated that an employer who fails to file notice contesting liability within the prescribed time “shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability.” In Adzima v. UAC/Norden Division, 177 Conn. 107 (1979), our Supreme Court noted that an employer who failed to disclaim liability would be thereafter unable to contest either the employee’s right to receive compensation or the extent of his disability.
However, in Adzima, the employer had issued a voluntary agreement shortly after the claimant’s injury, which indicated its acceptance of the initial incident. Because the employer had not filed a Form 43 contesting the extent of claimed disability within the 20 days then allowed by statute, the claimant sought to preclude it from disputing that issue. The Court declined the claimant’s request for preclusion, explaining: “Extending Menzies to allocate to the employer the burden of contesting the extent of the employee’s disability within twenty days of the receipt of the employee’s claim for compensation, would impose upon the employer the burden of developing medical evidence . . . which otherwise would develop only after a hearing at which the employee would have the burden of proving both a compensable injury and the extent of the disability.” Id., 115, citing Menzies v. Fisher, 165 Conn. 338, 342-43 (1973); see also, e.g., Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). This board followed Adzima in Micklos v. Iseli Co., 12 Conn. Workers’ Comp. Rev. Op. 302, 1450 CRB-5-92-7 (June 17, 1994), holding that a trial commissioner could undertake an evidentiary inquiry into the childhood origin of a claimant’s hearing loss, despite the employer’s being precluded from contesting the occurrence of a work-related repetitive trauma injury.
The claimant contends that the respondents are precluded from challenging the source of his lung condition pursuant to Barron v. City Printing Co., 55 Conn. App. 85 (1999). In Barron, the decedent was diagnosed with lung cancer in 1983, and died in September 1984. The claimant, his widow, filed a notice of claim with numerous former employers of the decedent, including the respondent City Printing and its insurer Chubb and Son, Inc., her late husband’s last employer. Because Chubb failed to contest that notice of claim, a Motion to Preclude was granted to prevent it from contesting liability; no appeal was taken from that ruling. Barron, 3497 CRB-3-96-12 (April 29, 1998). Chubb later sought to apportion liability among other employers and insurers pursuant to § 31-299b. The trial commissioner held that the medical evidence did not establish that the decedent’s cancer was caused by chemical exposure during his work in the printing industry, and dismissed the claim for apportionment.
The case was initially appealed to this board, where we held that the compensability of the decedent’s lung cancer was a factual question. “Normally, it is the claimant’s burden to prove the compensability of an injury. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). Here, because of the granting of the Motion to Preclude against Chubb, the appellants inherited that burden from the claimant. Thus, Chubb had the responsibility to present evidence that would persuade the trial commissioner that the claimant’s lung cancer was caused, at least in part, by workplace chemical exposure.” Barron, supra. Having failed to present such evidence to the trier’s satisfaction, Chubb could not apportion liability for the claim. On appeal to the Appellate Court, this board’s decision was affirmed. “What essentially would have been a noncompensable workers’ compensation claim became a compensable claim due to City Printing’s failure to file a notice contesting liability in a timely manner. That error occurred while City Printing was insured by Chubb . . . . Because no actual workplace injury occurred at any time, it would have been improper to hold City Printing’s prior insurers responsible for a failure that occurred during Chubb’s coverage period.” Barron, supra, 55 Conn. App. 90.
There are several key differences between Barron and the case before us today. By failing to contest liability for the decedent’s injury, the employer and insurer in Barron became liable to administer his entire occupational disease claim under § 31-299b, irrespective of the percentage of liability actually attributable to exposure during that coverage period. The last insurer on the risk is responsible for seeking apportionment of liability under § 31-299b; however, the medical evidence prevented the appellants in Barron from carrying their burden of proving such entitlement. Section 31-299b is not applicable to the case before us today. The Barron respondents also failed to appeal the decision on the Motion to Preclude, and their apportionment claim constituted a subsequent action. Earlier issues had thus reached the final judgment stage, whereupon they could not be relitigated. See Marone v. Waterbury, 244 Conn. 1, 11-12 (1998). In contrast, the action before us here is an appeal of the original Finding and Award, which incorporates both the issues of preclusion and extent of disability.
Also, it is important to observe that the instant case involves a 2000 injury, and that § 31-294c(b) was revised in 1993. While an employer who fails to contest liability or to commence payment for an alleged injury before the twenty-eighth day is still presumed to have accepted compensability of the alleged injury, the language prohibiting challenges to the extent of liability has been removed from that portion of subsection (b). Thus, we are free to apply the reasoning of Adzima, supra, to all pending issues concerning the extent of disability, rather than only those that stem from either an accepted injury or a properly contested claim. The preclusion statute is intended to promote the speedy, efficient and inexpensive disposition of claims by requiring employers to seasonably investigate cases and file specific disclaimers. We do not believe that its spirit is in any way chilled by allowing an employer who is precluded from contesting an injury’s compensability to contest the extent of a claimant’s disability, insofar as that disability may be attributable to causes other than the accepted injury. Thus, we find no error of law in the trier’s holding, and affirm his decision.
Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.