CASE NO. 4952 CRB-8-05-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 7, 2006
MARY CHAMBERS, Dependent widow of PETER CHAMBERS, Deceased
GENERAL DYNAMICS CORP./ELECTRIC BOAT DIVISION
ACE USA/ST. PAUL TRAVELERS
The claimant was represented by Amy Stone, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge Street, P.O. Drawer 929, Groton, CT 06340.
The respondent employer as a self-insured was represented by Robert Bystrowski, Esq., Morrison Mahoney, LLP, One Constitution Plaza, 10th Floor, Hartford, CT 06103.
The respondent insurer ACE USA/St. Paul Travelers was represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
This Petition for Review filed from the May 26, 20051 Finding & Dismissal of the Commissioner acting for the Eighth District was heard January 27, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Michelle D. Truglia and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. The instant appeal involves just one issue. Does Buck v. General Dynamics Corporation/Electric Boat Division, 3324 CRB-2-96-4 (January 21, 1998) continue to bar death benefit claims under Chapter 568 when the decedent had filed a claim under the federal Longshore and Harbor Workers Act (LHWCA) (33 USC § 901 et .seq.) years earlier, and never filed a claim under Connecticut statute? Upon review, we conclude the precedent in Buck is controlling and the trial commissioner appropriately dismissed this claim.
The facts herein are virtually identical to the fact pattern in Buck. The decedent was employed at the Electric Boat shipyard. On or about July 30, 1979 he filed a claim under the LHWCA claiming he suffered from a work related lung ailment. In October 1980 he ceased working at Electric Boat. He did not file a Form 30C seeking benefits under Chapter 568. On January 31, 1999 Mr. Chambers died. On March 9, 1999, his widow filed a Form 30C seeking § 31-306 C.G.S. death benefits under Connecticut law. The respondents filed a Form 43 contesting the claim, and specifically contested jurisdiction.
Formal hearings were held by the commissioner acting for the Eighth District on May 20, 2004 and August 18, 2004, with the record held open for briefs until February 10, 2005. The commissioner issued his Finding and Dismissal on May 26, 2005 and Amended Finding and Dismissal on May 31, 2005 finding that “I am compelled by the doctrine of stare decisis to follow the holding in Buck v. General Dynamics (supra). Therefore, I find and conclude that this Commissioner lacks jurisdiction to adjudicate this claim.”2 Findings, ¶ B. A Petition for Review was filed on June 1, 2005.
The relevant statute is § 31-294c(a) C.G.S.
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 claim for compensation within the two-year period or within one year from the date of death, whichever is later . . . .
In this case, the decedent never filed a claim under Chapter 568. Following his death his widow asserts she has essentially a new claim for § 31-306 benefits. This argument is identical to the claims presented in Buck. In that case, the claimant’s husband had suffered a myocardial infarction on July 11, 1975, claimed it was work related and filed for a LHWCA claim, and then suffered a second fatal cardiac event on February 1, 1986. We determined that an occupational disease claim would have accrued from the first heart attack and the decedent took no action which would reasonably have put the employer on notice that a claim for Chapter 568 benefits was being made. While we concluded the widow’s claim was separate from the decedent’s, we applied the holding in Biederzycki v. Farrel Foundry & Machine Co., 103 Conn. 701, 704-705 (1926) that the claim filed by a dependent for death benefits is derivative of the original injury claim.
[T]he classes of compensation awarded the employee and his dependents are separate and independent of each other. But each arises out of the same compensable injury. If the employee is awarded compensation for an injury, and in consequence of it, subsequently dies, the injury preceding the death and the death arose out of the one injury, compensation for the latter is payable to and belongs to the dependent, while the compensation awarded to the living employee is payable to and belongs to him.
In Buck, as in this case, over a decade had elapsed between the original illness and the claim for Chapter 568 benefits. Consequently, we determined that the widow’s § 31-306 death benefits claim was time barred and the commission lacked jurisdiction.3
The claimant argues that two other CRB decisions are supportive of her position that the respondents were placed on notice by the filing of a LHWCA claim that a claim under Chapter 568 would be forthcoming. The claimant asserts that Capen v. General Dynamics Corp./Electric Boat Division, 11 Conn. Workers’ Comp. Rev. Op. 326, 1394 CRB-2-92-3 (December 30, 1993), aff’d, 38 Conn. App. 73 (1995) supports her argument that we have jurisdiction over this claim. We disagree for a variety of reasons. Capen involves a situation in which a claim under Chapter 568 was filed within a year of the manifestation of the illness. There is no question such a claim comports with the applicable statutory time restrictions. More importantly, Capen predated Buck and the CRB distinguished the two cases at that time. Since that time there has been no substantive change to the statutory or appellate law affecting such claims, therefore the principle of stare decisis compels us to reach the same legal conclusion regarding the precedent in Capen.
The claimant also cites a case decided after the Buck decision for the premise that notice under the LHWCA should be deemed adequate to fulfill the notice requirements of Chapter 568, thus preserving the commission’s jurisdiction over a § 31-306 claim in this instance. In DeMello v. Cheshire, 3633 CRB-8-97-6 (August 26, 1998) the claimant had filed a claim under § 7-433c for statutory heart and hypertension benefits and approximately three years later, filed a new claim for benefits under Chapter 568. The respondents argued that the initial notice for § 7-433c benefits failed to adequately apprise them of the prospect of a claim for benefits under Chapter 568; hence they were prejudiced by their inability to investigate the claim. The trial commissioner agreed with this position, but the CRB reversed and remanded.
Our rationale for remanding the case in DeMello to the trial commissioner does not assist the claimant’s argument in this case, however. The primary rationale in the decision was the juxtaposition of state workers’ compensation statutes and state heart and hypertension statutes as outlined in the Supreme Court’s decision in Collins v. West Haven, 210 Conn. 423 (1989). In Collins the use of the same claim form for a § 7-433c claim and a Chapter 568 claim was dispositive. Since we determined in DeMello that claimants under each statute “are compensated in the same amount and in the same manner” we determined that the respondents needed to prove that they had been prejudiced by the alleged defects in the notice in order to contest jurisdiction.
The holding in DeMello does not equate the notice provision under the federal LHWCA to the notice provision in a state statute which is closely aligned with the Workers’ Compensation Act. This board would now need to decide to extend DeMello in order to reach this result. We do not find the authority to do so because the DeMello decision is reliant on precedent in Collins and its discussion of the state heart and hypertension act “[t]he procedure for determining recovery under 7-433c is the same as that outlined in chapter 568, presumably because the legislature saw fit to limit the ‘procedural avenue’ for bringing claims under 7-433c to that already existing under chapter 568 . . .” Collins, supra, 429-430. Neither Collins nor DeMello address any notice issues beyond that of § 7-433c and the majority opinion in DeMello contains no reference to Buck. Consequently, we decline to apply DeMello to issues beyond the state heart and hypertension act.4
In Mitchell v. J.B. Retail Inventory Specialists, 3458 CRB-2-96-10 (March 31, 1998) fn. 1, we held “Stare decisis, although not an end in itself, serves the important function of preserving stability and certainty in the law. Accordingly, ‘a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. Maltbie, Conn. App. Proc., p. 226.’ Herald Publishing Co. v. Bill, 142 Conn. 53, 62 (1955).” We have not been presented with compelling reasons that necessitate that our decision in Buck must be overruled, hence we uphold that precedent and uphold the dismissal of this claim by the trial commissioner.
Commissioners Michelle D. Truglia and Ernie R. Walker concur in this opinion.
1 We note a postponement was granted during the pendency of this appeal. BACK TO TEXT
2 The Finding and Award was amended on May 31, 2005 to correct scrivener’s errors. A Motion to Correct was filed on May 31, 2005 and granted on June 13, 2005 to properly cite the decedent’s widow, Mary Chambers, as the claimant in this case. Neither change impacted the legal conclusions under appeal. BACK TO TEXT
3 The Appellate Court in Tardy v. Abington Constructors, Inc., 71 Conn. App. 140 (2002) characterized a § 31-306 claim as a “new claim” for the purposes of causing a respondent to file a timely disclaimer. There is no discord between the terms of this decision and our holding in Buck as the Tardy decision did not discuss the issue of an allegedly untimely § 31-306 claim. BACK TO TEXT
4 There is an important factual difference between this case and DeMello as well. In DeMello the respondents were presented by a Chapter 568 claim from an employee approximately three years after manifestation of the occupational disease. We did not reverse the initial denial of the claim, rather, we remanded for a factual determination as to whether the lapse of time prejudiced the respondent’s ability to investigate the claim. Here the claim is two decades after manifestation of illness and the decedent’s departure from the respondent’s work force. The issue of potential prejudice to the respondent’s ability to investigate the claim is obviously exacerbated by the lapse of time herein. BACK TO TEXT