St. Amour v. General Dynamics Corporation/Electric Boat Division

The claimant was represented by Mark Oberlatz, Esq., of O’Brien, Shafner, Bartinik, Stuart & Kelly, P.C., P.O. Drawer 929, Groton, CT 06340.

The respondents Aetna Casualty and Surety and CIGNA were represented by Lucas Strunk, Esq. and Margaret Corrigan, Esq., both of Pomeranz, Drayton and Stabnick, 96 Glastonbury Boulevard, Glastonbury, Ct 06033. The respondents Liberty Mutual Ins. Co. were represented by Howard B. Field, Esq., and Nancy Rosenbaum, Esq., 20 Western Boulevard, Glastonbury, CT O6033.

The National Employers Company was represented by John Greiner, Esq., P.O. Box 590, New London, CT 06320. The Second Injury Fund was represented by Taka Iwashita, Esq. Assistant Atorney General, 55 Elm Street, P.O. Boy. 120, Hartford, CT 06106 although the Second injury Fund did not appear at oral argument or file a brief before the Compensation Review Board.

This Petition for Review from the August 6, 1991 Finding and Award of the Commissioner for the Second District was heard June 26, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Gerald Kolinsky and James J. Metro.

OPINION

JESSE FRANKL, CHAIRMAN. The respondents have petitioned for review from the August 6, 1991 Finding and Award of the Compensation Commissioner. In that Finding and Award the trial commissioner granted the claimant benefits for the death of her spouse, the decedent, from lung cancer and asbestosis. The trial commissioner found that the decedent’s asbestosis was substantially related to asbestos exposure during and in the course of decedent’s employment.

The respondents took the instant appeal and present the following issues for review, (1) whether the trial commissioner erred in failing to find whether the claimant’s claim was timely filed, (2) whether the trial commissioner erred in failing to make any finding as to the applicability of Sec. 31-349 C.G.S. and (3) whether the trial commissioner erred in failing to apportion liability amongst the various insurance carriers and in the manner specified by the respondents-appellants.

At the outset we note that the respondents did not file a Motion to Correct. Thus, the factual findings of the trial commissioner must stand. Mack v. Blake Drug, 152 Conn. 523 (1965). Some of the factual findings found by the trial commissioner were the decedent’s employment with the respondent-employer from 1951 to August 7, 1980, the decedent’s exposure to asbestos during the course of his employment, the causal relationship between the exposure and subsequent death of the decedent, that the first manifestation of asbestosis was August 7, 1980 and that the decedent died August 4, 1952. Not specifically found or concluded by the trial commissioner was whether the claimant’s claim was timely filed.

In terms of the record before us on appeal we note various exhibits, but only one transcript of a formal hearing whereas, the trial commissioner states in his Finding and Award that hearings were held April 30, 1986, August 22, 1987 and July 25, 1991. The only transcript forwarded on appeal is the transcript from the July 25, 1991 Formal Hearing. Thus, as to the issue of timeliness we do not have a ruling before us. As part of the record is not before us we cannot engage in any meaningful review of the issue. The exhibits seem to indicate that a letter dated November 16, 1982 addressed to the Commissioner of the Second District was prepared along with a Form 30-C notice of claim. See claimant’s Exhibit K. However, without some of the transcripts from the earlier proceedings we are unable to determine what evidence exists in support of the claimant’s claim that a timely notice was fled.

Additionally there was no determination made by the trial commissioner as to whether Sec. 31-349 is applicable in the instant matter, nor was there any determination as to whether, and in what manner if applicable, the liability should be apportioned amongst the insurance carriers. We think in light of the issues presented for review and the lack of either factual findings, evidence or determinations relating to these issues the matter should be remanded for further proceedings and determinations. “No case under this Act should be finally determined when the trial court, or this court, is of the opinion that, through inadvertence, or otherwise, the facts have not been sufficiently found under a just judgment.” Cormican v. McMahon, 102 Conn. 234, 238 (1925).

We therefore remand the instant matter for further proceedings consistent with this opinion.