State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Bartlett v. J.B. Williams Soap Factory et al.

CASE NO. 4511 CRB-8-02-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 3, 2003

ESTATE OF FRANKLIN H. BARTLETT (Deceased)

DOROTHY BARTLETT (Dependent spouse)

CLAIMANT-APPELLANT

v.

J.B. WILLIAMS SOAP FACTORY

EMPLOYER

and

KEMPER INSURANCE GROUP

INSURER

HARTFORD INSURANCE GROUP

INSURER

and

GLASTONBURY TOILETRIES

EMPLOYER

and

UTICA MUTUAL INSURANCE COMPANY

INSURER

and

LIBERTY MUTUAL INSURANCE GROUP

INSURER

SECOND INJURY FUND

RESPONDENTS-APPELLEES

APPEARANCES

The claimant was represented by Lindalea Ludwick, Esq., Early, Ludwick & Sweeney, 265 Church Street, 11th Floor, P.O. Box 1866, New Haven, CT 06508-1866.

The respondents J.B Williams Soap Factory and Kemper Group were represented by Polly Orenstein, Esq., Law office of Tracey Green Cleary, 2750 Dixwell, Avenue, P.O. Box 187289, Hamden, CT 06518.

The respondents J.B. Williams Soap Factory and Hartford Insurance Group were represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondents Glastonbury Toiletries and Liberty Mutual Insurance were represented by Nicone Gordon, Esq., Law office of Nancy S. Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033.

The respondents Glastonbury Toiletries and Utica Mutual were represented by Jonathan Reik, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066.

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 March 12, 2002 Finding and Dismissal of the Commissioner acting for the Eighth District was heard September 20, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Jesse M. Frankl.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the Commissioner acting for the Eighth District’s March 12, 2002 Finding and Dismissal. In that Finding and Dismissal the trial commissioner granted the respondents’ Motion To Dismiss the claimant’s claim on the basis that the claimant failed to comply with the time limitations provided in § 31-294c(a) for filing a claim.

The appellant presents the following issues for review; (1) whether the trial commissioner’s Finding and Dismissal violates the claimant’s rights to redress, equal access to the courts and equal protection under the law under Article 1, §§ 1, 10 and 20 of the Connecticut Constitution and the Fourteenth Amendment to the United States Constitution (2) whether the trial commissioner erred in his finding that the first manifestation of symptom occurred October 12, 1994 and (3) whether the trial commissioner erred in concluding that the claim was untimely.

The claimants are the Estate of Franklin H. Bartlett and Dorothy Bartlett the dependent spouse of the decedent Franklin H. Bartlett. Hereinafter they are referred to collectively in a single capacity as either claimant and/or appellant. The claimant seeks, inter alia, benefits pursuant to § 31-306 in her capacity as the decedent’s dependent spouse. The claimant contends that the decedent was exposed to asbestos during the course of his employment and filed her claim in the Eighth District, August 20, 1997.

On review we first consider the appellant’s constitutional challenges to the trial commissioner’s Finding and Dismissal. As we have noted in prior opinions we lack the plenary authority to review the constitutional challenges presented in this appeal. See Stevenson v. Edward W. Stevenson & Sons, 4480 CRB-8-02-1 (January 8, 2003); Thompson v. State/Univ. of Conn. Health Ctr., 4355 CRB-8-01-2 (January 15, 2002); Rayhall v. Akim Co., Inc., 4321 CRB-2-00-12 (November 5, 2001), citing Giaimo v. New Haven, 257 Conn. 481, 490 n.8 (2001); Fish v. Caldor, Inc., 3840 CRB-7-98-6 (May 11, 1999).

As to the issues which we may rightfully consider, we begin our review of the legal validity of the trier’s conclusion and his application of § 31-294c(a), with the appellant’s challenge to the trial commissioner’s denial of her Motion to Correct. In the March 12, 2002 Finding and Dismissal the trial commissioner found that the decedent died July 15, 1995. While the trial found that it was unclear whether the decedent’s death was a result of occupational exposure to asbestos, he did find that “claimant” knew or should have known about a potential asbestos related illness as of October 12, 1994.1 See Finding ¶7. The trial commissioner concluded that the claim was not timely under the statute of limitations set out in § 31-294c(a). Section 31-294c(a) provides in pertinent 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 within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make a claim for compensation within the two-year period or within one year from the date of death, whichever is later. (Emphasis ours).

The commissioner applied that part of the statute referencing the time period by which dependents claims may be filed “if death [of the injured employee] has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease” . . . In the instant case, the trier found that the decedent should have known of his asbestosis as of October 12, 1994 and thus, the application of this provision made the claim untimely.

In part, the appellant seeks to delete the trier’s finding in ¶7. Paragraph 7 states; “It is clear from the medical records and the testimony of Dr. Silverblatt the claimant knew or should have known about an asbestos related illness or symptom as of 10/12/94.” The appellant contends the deposition testimony of Dr. Silverblatt and the testimony of decedent’s son, Frank Bartlett contradict the trial commissioner’s finding in ¶7. The claimant would have the trial commissioner alter the actual findings so as to reflect the claimant did not know of the decedent’s occupational disease until the decedent’s death when the autopsy report revealed the decedent’s asbestosis.

The factual findings of a commissioner will not be disturbed unless they are without evidentiary support, contrary to law or based on unreasonable or impermissible inferences. Capen v. General Dynamics, 38 Conn. App. 73 (1995), Uttenweiler v. General Dynamics Corp./Electric Boat Division, 3110 CRB-8-95-6 (January 8, 1997), see also, Fair v. Peoples Savings Bank, 207 Conn. 535 (1988). The factual finding at issue here is one resulting from the trial commissioner’s assessment of the weight and credibility of the evidence put before him. What weight and credibility should be assigned to the evidence before a trial commissioner is at the very heart of a trial commissioner’s factual determinations. Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (December 19, 2000).

This particular factual finding at issue is one that flows from inferences the trial commissioner drew from the evidence presented. All we are permitted to do in our review of this issue on appeal is determine whether the inferences drawn by the commissioner were reasonable. In the instant matter, both sides refer to portions of the evidentiary record supporting their view as to what the trier should have found as to when the decedent knew of his diagnosis of asbestos. Our review of the record reflects that Dr. Silverblatt’s deposition testimony of October 4, 2000 (Respondents’ Exhibit 17 July 27, 2001 Formal Hearing), pp. 59-60 when read together with Dr. Silverblatt’s report dated October 12, 1994 (Respondent’s Exhibit 8, June 12, 2000 and Claimant’s Exhibit C, June 12, 2000) supports an inference that the decedent, as of October 12, 1994, knew or should have known that he had asbestosis.

Dr. Silverblatt’s report dated October 12, 1994 revealed his impression that the claimant suffered from asbestosis. Specifically, the report notes, “Pulmonary Asbestos (historical)” along with some other medical conditions. This written report in combination with Dr. Silverblatt’s deposition testimony indicating that the only person with whom he would have discussed the decedent’s asbestos exposure was the decedent/patient supports the trier’s finding on this issue. As the trier’s finding is rooted in the evidentiary record it will not be disturbed.

Further buttressing the trier’s finding, we refer to the decedent’s son’s testimony. The decedent’s son testified that sometime in 1994 the decedent communicated to him of the possible relationship between asbestos exposure and the decedent’s pulmonary illness. He testified that the decedent saw a television ad for a law firm seeking to advise people of their legal rights as a result of exposure to asbestos. Specifically, the television ad targeted workers with exposure to asbestos and who suffered breathing problems. The decedent’s son testified that his fathers’ concern was not only for his health, but also his son’s as the decedent believed that the son had also endured exposure to asbestos. June 12, 2000 Transcript, p. 11 and pp. 18-19.

As our Supreme Court noted in Bremner v. Eidlitz & Son, Inc., 118 Conn. 666, 669-70 (1934) the time period by which a claim for occupational disease must be given commences upon the first manifestation of symptom of the occupational disease:

No doubt the legislature used the word manifestation with something of this significance, intending that the duty of giving notice, and the risk that an employee might forfeit compensation for an occupational disease, should arise only when a symptom of that disease should plainly appear, not when it was merely suspected or doubtful. Beyond this, the word in its use in the provision in question implies two things. One is that the duty to give the notice is not conditioned upon actual knowledge but upon the fact that the symptom of the disease manifests itself; an 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. Nehring v. Connecticut Co., 86 Conn. 109, 123, 84 Atl. 301. The other implication arising out of the phrase in question is that there must be a clear recognition of the symptom as being that of the occupational disease in question; however plain is the presence of the symptom itself, unless its relation to the particular disease also clearly appears, there cannot be said to be a manifestation of a symptom of that disease. (Emphasis ours).

We think the commissioner’s finding in ¶7 is consistent with Bremner’s construction as to when a symptom of an occupational disease is manifested. In his role as fact finder, it was for the commissioner to infer that the circumstances of this particular matter were such that a “reasonable man would clearly recognize the existence of a symptom of an occupational disease.” Additionally, in Bremner the court opined

[T]he notice which must be given if compensation is to be awarded an employee clearly must be one given by him or by someone in his behalf; and the risk of loss, if it be not given, is personal to him. This very forcibly suggests that the manifestation of a symptom of an occupational disease which sets running the time within which notice is to be given, must mean its manifestation to the employee claiming compensation. Indeed, that this must be so requires little consideration of the possibilities inherent in a construction of the statute which would make his right depend upon the manifestation of a symptom of the disease to others. . . . The legislature clearly must have intended that the manifestation should be to the employee or someone standing in such a relation to him that the knowledge of such a person would be imputed to him, and be such as is or ought to be recognized by him as symptomatic of an occupational disease. (Emphasis ours). Bremner, supra, pp. 670-72.

Having concluded that the trier’s findings withstand appellate review, we next consider the ultimate issue, whether the claimant’s claim was untimely as a matter of law. It is the claimant’s contention that the time period set out in § 31-294c(a) for filing a dependent’s claim should be construed as to permit dependents to file a claim within three years from the date of the decedent’s death.2 The claimant contends that this tribunal’s opinion in Mingrone v. Burndy Corp., 9 Conn. Workers’ Comp. Rev. Op. 252, 1109 CRD-7-90-9 (Nov. 21, 1991) [hereinafter Mingrone I] offers supporting authority for its argument.

In Mingrone I, the decedent left his employment on March 1, 1981 and died October 16, 1988 as a result of a fatal lung disease. The claimant (the dependent spouse) claimed the decedent’s lung disease was causally related to the decedent’s employment. The parties stipulated that the first date that the decedent was aware of the possible causal relationship between his work and his lung disease was May 15, 1986. The claimant filed her claim for dependent’s benefits on December 16, 1988. The respondent argued that the claimant’s claim was time barred as it was filed more than two years after the decedent’s first manifestation of symptom.

In the instant appeal, claimant refers to the part of the Mingrone I panel’s opinion stating:

Assuming arguendo that May 15, 1986 was the first date of known manifestation, the decedent, if he had been alive, would have had until May 15, 1989 to file a claim. The surviving widow filed her claim by certified mail with the employer on December 16, 1988 well before the three year period. As the date of death was October 16, 1988, the claim was also filed within one year of the death. It is hardly conceivable that the legislature meant live victims to have three years and their surviving dependents to have less time to file occupation disease claims. Even if that were the legislative intent, it does not apply here as death did not occur within two years of the possible known manifestation of symptom. As death did not occur within the period, then the limitation period is that set forth at the beginning of the statute, three years from manifestation.(Emphasis ours). Mingrone I, p. 254.

Unlike the factual circumstance in Mingrone I, the decedent in the matter at hand died within two years of the manifestation of symptom. Therefore, the language of § 31-294c(a) providing dependents claims should be filed within two years of the decedent’s death, is applicable. The claimant was required to have filed her claim within two years of the manifestation of symptom of the occupational disease or within one year from the date of the decedent’s death, whichever is later. In this case that would have required the decedent to file her claim by October 12, 1996.

Furthermore, as the factual circumstances in Mingrone I did not permit application of the “if death occurs within two years” provision, the panel’s opinions on how the law should be applied when death does occur within two years, is dicta. Thus, Mingrone I does not provide binding legal authority compelling a certain outcome.

In the instant matter the above referenced provision requires the decedent to file her claim no later than October 12, 1996. The trier held that the claimant’s August 20, 1997 notice of claim was untimely. We agree.

Our conclusion affirming the trier’s determination that the claimant’s notice was untimely is supported on several grounds. First, much as we may sympathize with claimant’s situation, were we to hold as the claimant argues we would ignore the plain language of § 31-294c(a) stating: “provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease. . .” The statute provides a condition which, if found to exist, sets out a different time limitation for filing a dependent’s claim than the time permitted for the filing of an injured employee’s claim.

In Merenski v. Greenwich Hospital, 4292 CRB-7-00-9 (Sept. 12, 2001) we considered the application of the statutory provision at issue here.3 We noted:

[T]he language of § 31-294c(a). . . expressly states that if death results within two years of the date of an accident, a dependent may file a compensation claim at anytime within those two years. “The purpose of the statutory construction is to give effect to the intended purpose of the legislature. . . . If the language of a statute is plain and unambiguous, we need look no further than the words actually used because we assume that the language expresses the legislature’s intent.” (Citations and internal quotation marks omitted.) State v. DeFrancesco, 235 Conn. 426, 435 (1995). In such circumstances, construction of the statute by reference to its history and purpose is unnecessary. State v. Gurreh, 60 Conn. App. 166, 171 (2000). A court may not torture the words of a statute in order to import ambiguity where the ordinary meaning of the language is straightforward. Sczapa v. United Parcel Service, Inc., 56 Conn. App. 325, 330 (2000). “While it is possible that in some cases the legislature has not said what it meant, nevertheless, when statutory language is clear and unambiguous we must presume that it meant what it said.” Trankovish v. Frenish, Inc., 47 Conn. App. 628, 631 (1998). Id.

We think it would be disingenuous on our part if we were to apply the statute on its face in Merenski, supra, and not in the matter at hand. If we were to hold as the appellant urges we would effectively usurp the role of the legislature and substitute our policy making for that of the legislature. Such action would be a substitution of our “own ideas of what might be a wise provision in place of a clear expression of legislative will.” Penfield v. Jarvis, 175 Conn. 463, 474-75 (1978).

Furthermore, when the legislature amends an existing statute as it did in Public Act 80-124, it is presumed to have knowledge of existing statutes. “The legislature is presumed to be aware and to have knowledge of all existing statutes and the effect which its own action or non action may have on them.” Windham First Taxing District v. Windham, 208 Conn. 543, 554 (1988). Public Act 80-124 amended the time limitation period for the filing of an injured workers’ occupational disease claim from one to three years. In its drafting of Public Act 80-124 amending § 31-294c(a)4 the legislature left intact the reference to the time for filing dependents’ claims where death has occurred within two years. More than a dozen years have passed since Public Act 80-124 took effect and the legislature has not “clarified” an intention or resolved an ambiguity that the appellant suggests exists. We believe the legislature’s lack of action lends further support to our view that the statute should be construed as written.

We therefore affirm the Commissioner acting for the Eighth District’s March 12, 2002 Finding and Dismissal.5

Commissioners Donald H. Doyle, Jr. and Jesse M. Frankl concur.

1 We note the trier found the “claimant” should have known about an asbestos related illness. We think that the trier used the term claimant in ¶7 when the term decedent more accurately describes the party to whom knowledge is linked. Our belief is further buttressed by the trier’s finding in the prior paragraph, ¶6 which states in pertinent part: “It is not clear whether the claimant’s death was a result of exposure to asbestos.” (Emphasis ours). Clearly, the trier employed the term claimant when the term decedent would have been more precise. BACK TO TEXT

2 We note claimant-appellant argues in the alternative that the § 31-294c(a) should be construed as permitting dependents three (3) years from the first manifestation of symptom of the occupational disease to file a claim. See Brief of the Claimant-Appellant filed July 19, 2002 page 3 note 2. BACK TO TEXT

3 In Merenski, respondents asked us to construe § 31-294c(a)’s time limitations so that a dependent spouse whose husband died on November 29, 1995 at work due to a heart attack and who did not file her claim for dependent’s benefits until September 16, 1997 was time barred. The respondents argued that language in § 31-294c(a)’s permitting dependents to file a claim within two years of the date of an injured workers’ accident or first manifestation of symptom or one year from the date of death if the decedent’s death occurred within two years of these events should not be applied. The respondents argued that this provision was intended to save dependents claims from dismissal as untimely where the dependent might be unaware of the causation resulting from the intervening period between an employee’s exposure to an occupational disease and death. The respondents argued that where the injury resulting in death occurred on the same date the two year provision was inapplicable as the harm which the provision was intended to prevent was not present in the case. The Compensation Review Board panel in Merenski was not so persuaded and applied the statute’s language on its face. BACK TO TEXT

4 Codified at that time as § 31-294 C.G.S. BACK TO TEXT

5 We note that in the Brief of Respondent-Appellee filed on behalf of the respondents, J.B. Williams Company and Hartford Insurance with the Compensation Review Board on August 9, 2002 suggests that these respondents should be excused from any further proceedings on the basis of the application of the time limitation provision provided in § 1330e and the Supreme Court’s opinion in Rice v. Vermilyn Brown, Inc., 232 Conn. 780, 786 (1995). We decline to rule on this request as we believe this request is more appropriately directed to the trial commissioner in future proceedings. BACK TO TEXT

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