State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Ricigliano v. Ideal Forging Corporation et al.

CASE NO. 4851 CRB-6-04-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 28, 2005

JOAN RICIGLIANO, Dependent widow of FRANK RICIGLIANO, Deceased

CLAIMANT-APPELLANT

v.

IDEAL FORGING CORPORATION

EMPLOYER

and

LIBERTY MUTUAL

INSURER

ST. PAUL FIRE & MARINE INSURANCE

INSURER

CBIA COMP SERVICES

BERKLEY ADMINISTRATORS

INSURER

ROYAL & SUNALLIANCE

EBI COMPANIES

INSURER

RESPONDENTS-APPELLEES

and

REX FORGE

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

TRAVELERS PROPERTY & CASUALTY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant waived oral argument in this matter. Notice was sent to Monique G. Rubb, Esq. and Kenneth J. Levine, Esq., Levy & Droney, 74 Batterson Park Road, P.O. Box 887, Farmington, CT 06034-0887.

With regard to the respondents Ideal Forging Corporation and Liberty Mutual, notice was sent to Richard Bartlett, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

With regard to the respondents Ideal Forging Corporation, Berkley Administrators and CBIA Comp Services, notice was sent to Jennifer Owens, Esq., Brown, Paindiris & Scott, LLP, 2252 Main Street, Glastonbury, CT 06033.

With regard to the respondents Ideal Forging Corporation and Royal & Sunalliance, notice was sent to Brian E. Prindle, Esq., 72 Bissell St., Manchester, CT 06040-5304. Notice was also sent to Feeley, Nichols, Chase, McDermott & Pellett, P.C., 37 Leavenworth St., P.O. Box 2300, Waterbury, CT 06722-2300.

With regard to the respondents Ideal Forging Corporation and EBI Companies, notice was sent to the Law Offices of Christopher J. Powderly, P.O. Box 990029, Hartford, CT 06199-0029.

With regard to the respondents Ideal Forging Corporation and St. Paul Travelers, notice was sent to Sizemore Law Offices, 9 Washington Avenue, Suite 3A, Hamden, CT 06518.

With regard to the respondents Rex Forge and Travelers Property & Casualty, notice was sent to the Law Offices of Scott B. Clendaniel, 300 Windsor Street, P.O. Box 2138, Hartford, CT 06145-2138.

With regard to the respondents Rex Forge and Hartford Insurance Group, notice was sent to Larry McLoughlin, Esq., Mathis & Associates, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.

This Petition for Review from the August 17, 2004 Finding granting the respondents’ Motion to Dismiss by the Commissioner acting for the Sixth District was considered on June 17, 2005 by a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Michelle D. Truglia and James J. Metro.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the August 17, 2004 ruling captioned “Finding: Motion to Dismiss is Granted” by the Commissioner acting for the Sixth District. She argues on appeal that the trier erred by concluding that her notice of claim for dependent death benefits was filed late pursuant to § 31-294c C.G.S. We find no error, and affirm the trial commissioner’s decision.1

The claimant, Joan Ricigliano, is the widow of the decedent Francesco Ricigliano, who was employed by the respondent Ideal Forging Corp. for a period of time ending in 2000. She alleges that her late husband was first diagnosed with multiple myeloma in the fall of 1996. After being evaluated by Dr. Appiah-Pippim of the Yale Occupational and Evironmental Medicine Program in February 1998, the doctor reported that there was no conclusive evidence at that time to support an association between occupational exposure and the decedent’s multiple myeloma. The decedent subsequently visited the UConn Medical Group’s Occupational Disease and Environmental Health Center in January 2002, whereupon Dr. Meyer determined that there was a reasonably certain causal connection between his exposure to petroleum products and hydrocarbon fuels at the workplace and his development of multiple myeloma. The decedent filed a Form 30C on August 15, 2002 alleging that he had contracted this disease due to the presence of various chemicals at his former workplace, and listed a date of injury of June 16, 2000, his last date of work at Ideal Forging Corp. He subsequently died on March 31, 2003. The claimant then filed a surviving spouse’s claim on or about September 25, 2003.

The trial commissioner found that the original Form 30C was filed more than three years after the first manifestation of a symptom of the decedent’s alleged occupational disease. This precluded either the decedent or his surviving spouse from filing a claim under the Workers’ Compensation Act. The claimant had unsuccessfully attempted to persuade the trier that the Form 30C could not have been filed any earlier because there was no medical proof of a relationship between the decedent’s illness and his employment. She again raises that argument here on appeal.

Section 31-294c(a) states that an injured employee must file a written notice of claim for compensation “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, . . . may make claim for compensation within the two-year period or within one year from the date of death, whichever is later.” The crux of the legal debate here on appeal is whether “the first manifestation of a symptom of the occupational disease” occurs upon the initial emergence of a symptom that is, or should reasonably be, linked to the disease in question (here, multiple myeloma), or whether “first manifestation” does not occur until the disease is not only identified, but also causally linked to exposure at the employee’s workplace, thereby qualifying it as an occupational disease. The claimant would have us draw the latter conclusion based on the legislative history of § 31-294c, the remedial purpose of the Act, and the caselaw interpreting this provision and comparable provisions outside the Act. Meanwhile, the several respondent insurers who have filed briefs in this matter collectively contend that the legislative history and relevant caselaw support the running of the statute of limitations from the time the symptom of the disease first manifests itself, whether or not it has been causally connected to occupational exposure or trauma.

Our construction of § 31-294c(a) must begin with the language of the statute itself and its relationship to other statutes, based upon the commonly approved usage of the words in the statute and the meaning of any legal terms of art that may be contained therein.2 If the meaning of the language is plain and unambiguous, we need not look beyond the language itself in ascertaining its meaning, e.g., legislative history, or the circumstances surrounding the passing of the statute and its purpose. Bergeson v. New London, 269 Conn. 763, 770 (2004).

On its surface, the phrase “from the first manifestation of a symptom of the occupational disease” does not directly articulate a knowledge-based component, either with respect to the connection between the disease and the symptom, or the occupation and the disease. However, in order for a symptom of a disease to become “manifest,” its significance must be clear and conspicuous to an observer. Our Supreme Court has held that the use of the word “manifest” does not make the duty to give notice conditional upon actual knowledge, but upon the fact that a symptom has plainly appeared, which a reasonable person would recognize as a symptom of the particular occupational illness. There must then 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.” Bremner v. Eidlitz & Son, Inc., 118 Conn. 666, 670 (1934). Also, “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.” Id., 671-72.

The Bremner decision did not resolve whether the causal connection between the claimant’s employment and the occupational disease must be apparent in order for the statute of limitations to start running on the filing of a notice of claim. That issue has not since been determined by a reviewing court. We observe that, in the much more recent case of Discuillo v. Stone and Webster, 242 Conn. 570 (1997), our Supreme Court explained Bremner as a decision in which “this court held that the limitation period for an occupational disease claim does not begin to run until the claimant knew or should have known that the disease is work-related.” Discuillo, supra, 582 (emphasis omitted). However, in Discuillo, the Court held that an employee’s repetitive-trauma-induced heart attack claim could not be characterized as an occupational disease rather than an accidental injury for the purpose of determining the proper statute of limitations for filing notice. The discussion of Bremner’s holding in the Discuillo opinion was thus dictum, as the Court did not need to discuss the notice trigger for occupational disease claims once it determined that the claimant’s repetitive trauma injury was not an occupational disease.

There are several opinions that have been issued by this board in recent years that also imply the existence of a “knowledge” element in § 31-294c(a) that centers on the relationship between the diagnosed disease and the employment. In Mingrone v. Burndy Corporation, 9 Conn. Workers’ Comp. Rev. Op. 252, 1109 CRD-7-90-9 (November 21, 1991), the trial commissioner had found that the decedent was first made aware of a possible causal relationship between the symptoms of his eventually fatal disease and his employment on May 15, 1986. The CRD wrote, “The ‘possible causal relationship’ found does not fit the Bremner language ‘only when a symptom of that disease should plainly appear.’ Rather it fits the other Bremner phrase ‘when it was merely suspected.’ A possibility or a mere suspicion does not satisfy the Bremner holding.” In Adams v. American Cyanamid Co., 14 Conn. Workers’ Comp. Rev. Op. 237, 1995 CRB-7-94-3 (August 11, 1995), this board affirmed a finding of timely notice, reasoning that “the trial commissioner found that the claimant did not become aware of the causal relationship between his asthma symptoms and his employment until he received a medical report on August 26, 1991. There is ample evidence in the record to support the trial commissioner’s conclusion, including the finding that a treating pulmonary specialist stated on March 13, 1991 that the etiology of the claimant’s asthma was ‘unclear.’” We also note the case of Uttenweiler v. General Dynamics Corp./Electric Boat Division, 3110 CRB-8-95-6 (January 8, 1997), in which we affirmed the trier’s decision that the statute of limitations began running on September 21, 1989, the date of a medical report stating that the claimant had lung disease due to asbestos exposure at work. A 1986 report by another doctor that found a decrease in diffusing capacity, but no asbestos-related disease, was insufficient to trigger the statute of limitations.

On the other hand, in Gavigan v. Visiting Nurses Assn., 125 Conn. 290 (1939), the Court discussed an amendment to the statutory notice requirement for workers’ compensation claims that had been passed in 1927, when the legislature changed the language from “one year from the date of injury” to “one year from the date of the accident or the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury.” The previous statute of limitations had been interpreted to allow the filing of a claim within one year from the time the injured employee became entitled to compensation, rather than the date of the accident itself. See Esposito v. Marlin-Rockwell Corp., 96 Conn. 414 (1921). The Court explained, “It seems clear that the purpose of this change, as regards a claim not arising from disease, was to alter the former statute interpreted as it was in the Esposito case and to substitute as the time when notice must be given, in place of one year from the date when the injury became compensable, one year from the date of the accident from which the injury resulted.” Id., 292. The Court then went on to reason that, if the word “accident” could be read to refer to the date when the injury became compensable (i.e., the disability date), “the limitation requiring notice in the case of an occupational disease to be given within one year from ‘first manifestation of a symptom of the occupational disease’ would be entirely out of harmony with the provision concerning injuries due to accident . . . .” Id. The Gavigan discussion suggests that the 1927 legislative change was intended to tie both statutes of limitation to an initial occurrence date, independent of when a claimant became aware that he or she might be entitled to compensation under chapter 568.

Another important point to consider is the legislative history of Public Act 80-124, which extended the statute of limitations for occupational disease claims from one to three years. When the bill was originally raised in the Labor Committee, a different approach was being considered: Raised Committee Bill No. 7, which proposed to define the phrase “date of documented discovery” as “the date of communication from a licensed physician to the injured employee, person claiming in his behalf, or employee’s dependent that the employee’s disease is an occupational disease.” This date of documented discovery was to replace the term “first manifestation of a symptom of the occupational disease” in § 31-294 [the predecessor statute to § 31-294c], making the notice period for occupational diseases “one year from the date of documented discovery that the disease is an occupational disease, or, if later, from the date of employee’s disability from disease.” Another bill, Raised Committee Bill No. 9, also used the term “date of documented discovery” to establish an injury date.

In debate over these two bills, several individuals objected to the use of the concept “date of documented discovery” as a trigger for the notice period. Among them was Attorney James Brown, counsel for the Insurance Association of Connecticut, who stated,

In general, physicians treating a disease do not arrive at a conclusion with regard to causation or even deal with the issue of causation. By training and experience, they deal rather with diagnosis and cure. These bills would thrust physicians into the causation issue nonetheless. They call for physicians to determine that an individual’s disease fits the statutory definition of occupational disease . . . [yet] do not include criteria or standards under which this determination would be made. They do not require that a physician who has determined that an employee’s disease is an occupational disease must communicate that fact to the employee. They do not provide a mechanism for reviewing the physician’s determination. And finally, the bills do not indicate what weight would be given to the physician’s determination as evidence in support of the employee’s contention that his disease was caused at his workplace.

Conn. Joint Standing Committee Hearings, Labor and Public Employees, Pt. 1, 1980 Sess., pp. 32-33. Attorney John Dicks, meanwhile, objected on behalf of the Dow Chemical Co. that the change in the law proposed by Bill No. 7 would “place[] in the hands of the claimant and his advisors, total control over the mechanism of triggering this limitation. All that need be done to stall the limitation, making it even more difficult for the employer to prove other cause, is not to document the discovery.” Id., p. 18. He advocated Bill No. 9, which would provide eligibility to receive benefits with the appearance of a symptom rather than disability.

Despite testimony by Dr. Mark Cullen of the Yale Department of Internal Medicine, who attempted to refute these objections, the bill that emerged from the Labor Committee was amended to remove the term “date of documented discovery.” Substitute Senate Bill No. 9, 1980 Sess., simply extended the statute of limitations from one year to three years from the first manifestation of an occupational disease symptom. Senator Skelley, who was present both at the Labor Committee hearings and the Senate discussion, explained that “it was the feeling of the committee that any workers’ comp claim should be dealt with regardless of the length of time, but there was some concern about taking the statute of limitation off completely and we extended it by two more years.” 23 S. Proc., Pt. 3, 1980 Sess., p. 631. Meanwhile, in the House, Rep. Henderson echoed the sentiment that the change from one year to three years was necessary “because [the] time period for filing a claim starts from when the first manifestation of the symptoms of an occupational disease becomes apparent to the worker.” 23 H.R. Proc., Pt. 12, 1980 Sess., p. 3457.

There are other areas of the law where the legislature has enacted comparable statutes of limitation that create expiration dates on the commencement of other causes of action, such as tort and product liability claims. For public policy reasons, such statutes of repose generally set a fixed time limit beyond which the prospective defendant or respondent will not be held liable. Sanborn v. Greenwald, 39 Conn. App. 289, 304, cert. denied, 235 Conn. 925 (1995). “There are two principal reasons generally given for the enactment of a statute of repose: (1) it reflects a policy of law, as declared by the legislature, that after a given length of time a [defendant] should be sheltered from liability and furthers the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability . . . and (2) to avoid the difficulty in proof and record keeping which suits involving older [claims] impose.” (Citation omitted; internal quotation marks omitted.) Id., 305, quoting Daily v. New Britain Machine Co., 200 Conn. 562, 585-83 (1986). The three-year statute of limitations on occupational disease claims serves to further this policy. In that light, it would be counterintuitive to read § 31-294c(a) as permitting an employee or his dependent to wait to file a claim until a connection can be identified between workplace exposure and a diagnosed disease, no matter how much time has passed since identifiable symptoms of the disease were first manifested.

The language used in some of this board’s prior decisions suggests that there has been a bit of judicial gloss placed on the interpretation of the ambiguous phrase “first manifestation of a symptom of the occupational disease.” This more expansive reading seems like a plausible construction of the statute on its face, but it conflicts with the legislative intent behind P.A. 80-124. Perhaps this has occurred because no reported appellate case concerning the timeliness of notice has had its outcome directly rest upon a situation in which a specific disease was diagnosed following the manifestation of symptoms, but its occupational nature remained unknown until a later time. As a result, the assumption has been made that “symptom of the occupational disease” presupposes knowledge that there is a connection between the diagnosed disease and the injured employee’s workplace, without any research having been done into the intent behind the 1980 statutory amendment.

As discussed above, our research suggests that such a judicial assumption, though understandable given the overall purpose behind the identification of occupational diseases, is an incorrect, “shorthand” interpretation of the words “occupational disease” that fails to draw the requisite line between the development of the disease itself and knowledge of its relation to one’s employment. We believe that the correct interpretation of § 31-294c demands that the statute of limitations begin running at the time a symptom of the disease is, or should have been, recognized by the claimant, irrespective of whether a causal connection has been drawn between the disease and the claimant’s employment. To hold otherwise would be to ignore the legislative process that accompanied the passage of P.A. 80-124, which clearly rejected proposed language that would have tied the running of the notice period to the date an occupational disease qua occupational disease was diagnosed.

The trial commissioner’s decision is accordingly affirmed.

Commissioners Michelle D. Truglia and James J. Metro concur.

1 The parties waived oral argument on this appeal on June 16, 2005, the day prior to the scheduled argument date. Previously, the appellant had successfully moved to postpone its oral argument, which had originally been scheduled for March 18, 2005. BACK TO TEXT

2 Section 1-1(a) C.G.S. states that the words and phrases of a statute “shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.” Additionally, the plain meaning rule of § 1-2z (as enacted by Public Act 03-154, § 1) states, “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” BACK TO TEXT

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