Uttenweiler v. General Dynamics Corp./Electric Boat Division

The claimant was represented by Amy Stone, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge St., Groton, CT 06340.

The employer and Aetna were represented by Steven Ekern, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

The employer was represented by Lance G. Proctor, Esq., Murphy & Beane, Two Union Plaza, P.O. Box 590, New London, CT 06320, who did not appear at oral argument.

The Second Injury Fund was represented by Philip M. Schulz, Assistant Attorney General, P.O. Box 120, 55 Elm St., Hartford, CT 06141-0120.

This Petition for Review from the June 21, 1995 Finding and Award of the Commissioner acting for the Eighth District was heard June 14, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer and its insurer (hereinafter “respondents”) have petitioned for review from the June 21, 1995 Finding and Award of the Commissioner acting for the Eighth District. In that decision, the trial commissioner determined that the claimant suffered from asbestos-related lung disease which was caused by exposure to asbestos at his workplace, and assessed a twenty-two percent permanent partial disability of the lungs. In support of their appeal, the respondents raise five arguments: (1) that the claimant’s notice of claim was untimely; (2) that the trial commissioner incorrectly determined the claimant’s benefit rate; (3) that the trial commissioner erred by not subtracting from the permanency award the percentage of lung impairment caused by cigarette smoking; (4) that the trial commissioner improperly assessed a twenty-two percent permanent partial disability rating; and (5) that the trial commissioner failed to identify the liable respondent.

The trial commissioner found the following relevant facts. The claimant worked for the respondent employer Electric Boat from 1963 to 1966 during which time his job duties exposed him to asbestos. Between 1966 and 1969 the claimant was employed by Pratt & Whitney where there was no known asbestos exposure. In 1969 the claimant returned to Electric Boat, initially as an expediter for one and one-half years and then as an electrician and welder. In 1981 the claimant experienced lung problems for which he sought medical attention. He saw Dr. Deren, a thoracic surgeon, who issued a report on January 19, 1982 which referenced an October 27, 1981 injury which occurred at Electric Boat. Dr. Deren’s report stated that there was no evidence of asbestosis. In 1986 the claimant was seen by Dr. Beckett who found no asbestos-related disease, but did find a decrease in diffusing capacity. The claimant filed a notice of claim for lung disease on March 10, 1986. In June of 1989 the claimant was seen by Dr. Maurer, at the Occupational Health Center at Lawrence & Memorial Hospital, who concluded that the claimant had mild to moderate obstructive lung disease and asbestos-related lung disease. Dr. Maurer warned the claimant to stop smoking. The claimant was subsequently treated at the Occupational Health Center by Dr. Cherniack and Dr. Kaiser. The claimant was also seen by Dr. Kern at the request of the employer respondent on March 17, 1992.

First, we will address the respondents’ argument that the claimant failed to file a timely notice of claim. Specifically, the respondents contend that the January 19, 1982 letter by Dr. Deren provided the claimant with knowledge of a work-related injury such that the statute of limitation commenced at that time. Section 31-294c1 provides a three-year statute of limitation for filing an occupational disease claim. We have previously stated:

In the instant case, the trial commissioner found that prior to Dr. Maurer’s September 21, 1989 report no doctor had communicated to the claimant that he had lung disease due to asbestos exposure at work. (Finding No. 30). Furthermore, the trial commissioner found that neither Dr. Deren’s 1982 report nor Dr. Beckett’s 1986 report indicated that the claimant suffered from asbestos related lung disease. (Findings No. 8 and 12). The power and duty of determining the facts rests upon the trial commissioner as the trier of facts. We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). The trial commissioner’s conclusion that the statute of limitation period did not begin running until September 21, 1989 is fully supported by the record.

Second, the respondents contend that the claimant’s weekly benefit rate “as established at the time of the first impairment/disability is $310.00 as established by the 10/1/81 maximum rate.” (Respondents’ Brief at p. 5). However, the respondents do not explain why the claimant’s benefit rate should be based upon his earnings in 1981. In the instant case, the trial commissioner determined the claimant’s date of disability to be January, 1990, the date of the first medical studies which supported the first assessment of permanent lung impairment. (Finding No. 29, 33). The trial commissioner thus determined that the claimant’s benefit rate for his permanent partial disability award to be $497.44 based upon the twenty-six weeks preceding January of 1990. We find no error. See Stevens v. Raymark Corporation/Raybestos Manhattan, 28 Conn. App. 226, 230 (1992), cert. den. 223 Conn. 921 (1992); see also Mulligan v. F.S. Electric, 231 Conn. 529 (1994).

Third, the respondents contend that the trial commissioner erred by not subtracting from the permanency award the percentage of lung impairment caused by the claimant’s history of smoking cigarettes. The respondents merely cite § 31-275 without being more specific, and do not cite any cases in support of their argument. The respondents’ argument “overlooks a fundamental tenet of workers’ compensation law, namely that an employer takes the employee in the state of health in which it finds the employee.” Epps v. Beiersdorf, Inc., 41 Conn. App. 430, 435 (1996). We have specifically ruled that §31-275(D)2 applies only to preexisting occupational diseases. Prisco v. North & Judd, 10 Conn. Workers’ Comp. Rev. Op. 154, 1190 CRD-8-91-3 (June 30, 1992). Accordingly, we find no error on the part of the trial commissioner.

Next, we turn to the respondents’ contention that the trial commissioner did not have the authority to make a permanent partial disability assessment of twenty-two percent. This board has repeatedly held that “the determination of the extent of an injured worker’s permanent disability (is) within the trial commissioner’s province as the trier of the facts.” Kerins v. Johnson Controls, 12 Conn. Workers’ Comp. Rev. Op. 72, 73, 1419 CRB-8-92-5 (Feb. 3, 1994) (citations omitted). Moreover, where “the medical evidence regarding the extent of the claimant’s permanency (is) in conflict, the trial commissioner’s conclusion must stand so long as there is evidence to support it. Salz v. Oliver’s Taverne, 12 Conn. Workers’ Comp. Rev. Op. 325, 327, 1593 CRB-8-92-12 (July 5, 1994).

In the instant case, there was no medical opinion produced which opines a twenty-two percent impairment rating. Rather, Dr. Cherniack assessed a fifteen to twenty percent impairment of each lung3; Dr. Kern assessed a fifteen to twenty percent lung impairment;4 and Dr. Kaiser assessed a thirty percent impairment of the whole person.5 Although we recognize that a trial commissioner is granted “broad discretionary powers” in the determination of permanent partial disability, Piscitelli v. Connecticut Coke/Eastern Gas and Fuel Associates, 6 Conn. Workers’ Comp. Rev. Op. 94, 575 CRD-3-87 (Jan. 26, 1989), nevertheless we conclude that a trial commissioner’s award must be supported by sufficient medical evidence. Specifically, a trial commissioner’s permanent partial disability assessment cannot merely be the average of several medical opinions, but must be supported by at least one medical opinion. See Morais v. Truelove & Maclean, 4 Conn. Workers’ Comp. Rev. Op. 98, 295 CRD-5-84 (June 12, 1987). Thus, the twenty-two percent assessment is not supported by any of the medical opinions presented in this case. We thus must reverse the twenty-two percent permanent partial award, and remand this issue for an award consistent with the above.

Finally, we will address the respondents’ contention that the trial commissioner erred in failing to specify either the period of injurious exposure or the liable respondent. We agree with the respondents’ contention that the trial commissioner neglected to either identify the injurious period of exposure or to issue an order to pay against the respondent employer. Accordingly, this issue will also be remanded to a trial commissioner for determination.

This matter is remanded to the Eighth District in accordance with the above. In all other respects, the trial commissioner’s decision is affirmed.

Commissioners George Waldron and Robin L. Wilson concur.

1 Section 31-294c C.G.S. provides: “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....” §31-294c C.G.S. BACK TO TEXT

2 Section 31-275(D) provides that “for aggravation of a preexisting disease, compensation shall be allowed only for that proportion of the disability or death due to the aggravation of the preexisting disease as may be reasonably attributed to the injury upon which the claim is based.” BACK TO TEXT