Dauti v. Lighting Services, Inc.

CASE NO. 5553 CRB-5-10-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 25, 2011

LIRIJE DAUTI, DEPENDENT SPOUSE OF ZEJADIN DAUTI AND THE ESTATE OF ZEJADIN DAUTI

CLAIMANT-APPELLANT

v.

LIGHTING SERVICES, INC.

EMPLOYER

and

PEERLESS INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Eddi Z. Zyko, Esq., 120 Fenn Road, Middlebury, CT 06762-2515.

The respondents were represented by David A. Kelly, Esq., Montstream & May, LLP, Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the April 27, 2010 Finding and Dismissal of the Commissioner acting for the Fifth District was heard November 19, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jack R. Goldberg and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter appeals from a Finding and Dismissal of a claim for § 31-306 C.G.S. benefits. The trial commissioner decided that as the claimant’s estate and dependents did not file a formal request for compensation within one year of the claimant’s death, the claim was time barred under § 31-294c C.G.S.1 The claimant has appealed asserting legal error. We find that the plain meaning of the statute and our precedent call for a two year time limitation from a worker’s death to file claims under § 31-306 C.G.S., which was met in this case. Therefore, we conclude the trial commissioner incorrectly determined the commission lacked jurisdiction over this claim. The appeal is sustained and the matter is herein remanded to the trial commissioner for a determination as to whether the injury herein is compensable.

The trial commissioner reached the following factual findings. He found that Zejadin Dauti was employed by Lighting Services, Inc., on September 28, 2000. On that day, while working at a Stop & Shop located in East Hartford in the respondent’s employ, the claimant suffered a fatal heart attack. The respondent, Lighting Services, Inc., denies that the claimant’s heart attack arose out of his employment but agrees the claimant was in the course of his employment when the heart attack occurred. Neither a Form 30C nor a Form 30D was filed with the commission; and a hearing request was not filed within one year of the claimant’s death. Counsel for the claimant first noticed the respondent of a pending claim by sending them a letter dated January 30, 2002. The respondents issued a Form 43 dated February 13, 2002 which was received by the Workers’ Compensation Commission on February 14, 2002.

Based on these facts the trial commissioner concluded the claimant failed to file a proper notice of claim within one year of Zejadin Dauti’s death and therefore failed to meet the jurisdictional requirements of § 31-294c C.G.S. He also found none of the exceptions to formal notice under the statute had been met. As a result, the commission lacked subject matter jurisdiction for the claims herein.

The claimant filed a Motion to Correct which was denied in its entirety. The claimant has pursued the instant appeal. Much of the appeal is based upon the belief that the “medical care exception” under the notice statute was met. We decline to address these issues as we find that the trial commissioner decided this case under an incorrect application of the notice requirements under § 31-294c C.G.S. The relevant portions of this statute read as follows:

a) 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. Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, or the date of the first manifestation of a symptom of the occupational disease and the nature of the disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. An employee of the state shall send a copy of the notice to the Commissioner of Administrative Services. As used in this section, “manifestation of a symptom” means manifestation to an employee claiming compensation, or to some other person standing in such relation to him that the knowledge of the person would be imputed to him, in a manner that is or should be recognized by him as symptomatic of the occupational disease from which compensation is claimed.

On appeal we have a limited scope of review, as our standard of review is deferential to the finder of fact. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.”. Daniels v. Alander, 268 Conn. 320, 330 (2004).

This presumption, however, can be challenged by the argument that the trial commissioner did not properly apply the law or has reached a finding of fact inconsistent with the evidence presented at the formal hearing. As we held in Caraballo v. Specialty Foods Group, Inc./Mosey’s Inc., 5082 CRB-1-06-4 (July 3, 2007).

In Sullivan v. Madison-Police Department, 4893 CRB-3-04-12 (June 9, 2006) we explained that although we are deferential to the finding of facts reached at the trial level, our appellate review must consider whether the facts found are supported by competent evidence and are legally consistent with the ultimate outcome of the case. “While this board cannot retry the facts of this case, it must review the sufficiency of the evidence against the legal standards required for granting an award. ‘The power and duty of determining the facts rests with the commissioner, the trier of facts. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457, 78 A.2d 339 (1951). The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.’. Tovish v. Gerber Electronics, 32 Conn. App. 595, 602 (1993).”. Id.

We also noted in Sullivan that it is our responsibility as an appellate body to correct a commissioner’s misapplication of the law to the subordinate facts. See Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003). Id.

Upon review we conclude the trial commissioner did not properly apply the law pertaining to commencing claims under § 31-306. We find prior precedent which is factually indistinguishable from the present case calls for a different result. We find that Merenski v. Greenwich Hospital Associates, Inc. a/k/a Greenwich Hospital, 4292 CRB-7-00-9 (September 12, 2001) is on point and compels us to find jurisdiction.

In Merenski, the claim was prompted by a fatal heart attack which occurred at the decedent’s workplace on November 29, 1995. A claim was filed on September 16, 1997. The respondents moved to dismiss the claim asserting that § 31-294c C.G.S. required the claim to be filed within one year of the date of the accident. The trial commissioner rejected this argument, finding the claim was timely. We affirmed this decision on appeal.

In our decision, we found the respondent’s argument “faces an insurmountable threshold problem. it contradicts the language of § 31-294c(a), which expressly states that if death results within two years of the date of an accident, a dependent may file a compensation claim at any time within those two years.”. Id. We found that the language of the statute was plain and unambiguous that it granted dependents two years from the date of death to file claims. We specifically rejected the argument advanced in the present appeal that the case of Capen v. General Dynamics Corporation/Electric Boat Division, 11 Conn. Workers’ Comp. Rev. Op. 326, 329 n.2, 1394 CRB-2-92-3 (Dec. 30, 1993), aff’d, 38 Conn. App. 73 (1995) was applicable to the circumstances herein; limiting the reasoning in that decision to occupational disease cases.2 Both in Merenski, and in the present case it appears that claimants are pursuing their claims following the decedent’s fatal heart attacks as “accidental injury” claims.3 Reliance on cases applying the appropriate standard for an occupational disease claim is misplaced as they are distinguishable from these circumstances.

For that reason, while we find the claimant’s citation of Fredette v. Connecticut Air National Guard, 283 Conn. 813 (2007), not to control these issues, there is nothing in the Fredette decision which serves to limit or reverse our precedent in Merenski, supra. To the contrary, we find an extensive review in Fredette, supra, as to the legislative history behind the notice statute, see 283 Conn. 813 at 829-835. This discussion points out that various amendments to the workers’ compensation act were meant to extend the pre-existing two year statute of limitations for accidental injury claims so as to provide greater flexibility when an injury was the result of an occupational disease. The Supreme Court in Fredette concluded that there had been a two year notice period for the filing of accidental death claims since at least 1939. Id. This is consistent with our Merenski decision and as well as with deciding subject matter jurisdiction exists in the present case.

We finally must consider the import of § 1-2z C.G.S. as “when the meaning of such text is plain and umambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”. Muniz v. Allied Community Resources, Inc., 5025 CRB-5-05-11 (November 1, 2006), aff’d, 108 Conn. App. 581 (2008), cert. denied, 289 Conn. 927 (2008). Section 31-294c C.G.S. permits a claim for dependent benefits to be brought within two years from the date of the accident, or one year from the date of death, whichever is later. (Emphasis added). When an accident results in death, the “plain meaning” of the statute applies a two year period to file a claim.

We find under the facts found by the trial commissioner the time limitations of § 31-294c C.G.S. were met by the claimant. We need not consider issues related to the “medical care exception” to the statute to find that the Commission has subject matter jurisdiction over the injury herein. As the trial commissioner ruled only on issues related to jurisdiction, we must remand this matter back to the trial commissioner for a ruling on issues related to causation and compensability.

This appeal is sustained and this matter is remanded for further proceedings consistent with this opinion.

Commissioners Jack R. Goldberg and Ernie R. Walker concur in this opinion.

1 The trial commissioner also found the relevant exceptions to formal notice under § 31-294c C.G.S. had not been met. BACK TO TEXT

2 We may also distinguish Capen v. General Dynamics Corporation/Electric Boat Division, 11 Conn. Workers’ Comp. Rev. Op. 326, 329 n.2, 1394 CRB-2-92-3 (December 30, 1993), aff’d, 38 Conn. App. 73 (1995) on the facts; in Capen a claim was filed within one year of the decedent’s demise and this board affirmed the trial commissioner’s decision that the claim was timely. The key dispute was whether a new injury precipitated the death of the decedent, which turned on the medical evidence presented in that case. See, Capen, 38 Conn. App. 73, 79-80. We therefore, do not find support in Capen for denying jurisdiction in the present matter. BACK TO TEXT

3 Discuillo v. Stone & Webster, 242 Conn. 570 (1997) established the difficulty claimants have of proving that cardiac events were somehow “peculiar”. to any specific occupation. As a result such injuries are generally deemed accidental injuries for the purposes of the notice statute. In Discuillo, a one year notice period was applied to the claimant’s accidental injury, as unlike the circumstances herein and in Merenski v. Greenwich Hospital Associates, Inc., a/k/a Greenwich Hospital, 4292 CRB-7-00-9 (September 12, 2001) the accidental injury did not result in death. Discuillo, supra, 572-574. BACK TO TEXT