Huber v. General Dynamics Corp./Electric Boat Division

The claimant was represented by Mark Oberlatz, Esq. and Carolyn Kelly, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge Street, Drawer 929, Groton, CT 06340.

The employer and National Employers1 were represented by John Greiner, Esq., Murphy & Beane, Two Union Plaza, P.O. Box 590, New London, CT 06320, who did not appear at oral argument.

The employer and CIGNA were represented by Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

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

This Petition for Review from the November 4, 1996 Finding and Award of the Commissioner acting for the Eighth District was heard June 13, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JAMES J. METRO, COMMISSIONER. The Second Injury Fund (“Fund”) has petitioned for review from the November 4, 1996 Finding and Award of the Commissioner acting for the Eighth District. In addition, the claimant has filed a cross-appeal from the November 4, 1996 decision. In that decision, the trial commissioner found that the decedent sustained asbestos exposure while employed by Electric Boat which constituted a significant cause of his fatal mesothelioma. The trial commissioner further found that the claimant’s prior asbestos exposure during his service in the Navy had caused the claimant to sustain a preexisting permanent impairment which made his injury at Electric Boat materially and substantially greater, and thus granted the respondents’ request to transfer pursuant to § 31-349. The Fund argues on appeal that the § 31-349 transfer issue should be decided by a medical panel; that the trial commissioner’s decision that the claim medically qualified for transfer was not supported by the medical evidence; and that the trial commissioner erred in admitting a deposition of Dr. Cherniak into evidence. In a cross-appeal, the claimant contends that the trial commissioner erred in failing to make a finding as to the date of injury.

We will first address the Fund’s contention that the trial commissioner erred in admitting the October 20, 1994 deposition of Dr. Cherniak. Workers’ compensation commissioners are not bound by common law or statutory rules of evidence, “but shall make inquiry, through oral testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” § 31-298 C.G.S. “Nonetheless, procedural due process is a requirement of adjudicative administrative hearings, including those held before workmen’s compensation commissioners, and the admission of hearsay material such as letters without an opportunity to cross-examine is ordinarily a deprivation of procedural due process.” Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974).

In the instant case, the Fund contends that the claimant’s attorney advised the Fund’s representative that the Fund should not attend the October 20, 1994 deposition because it was for purposes of the federal Longshore and Harbor Workers’ Compensation Act. Subsequently, the claimant arranged a second deposition with Dr. Cherniak which was attended by the Fund on February 22, 1995. Accordingly, the Fund was not denied due process as it was provided with the opportunity to cross-examine Dr. Cherniak regarding his testimony from the prior October 20, 1994 deposition. We find no error on the part of the trial commissioner in allowing both depositions into evidence.

In support of its appeal, the Fund makes numerous factual arguments that the claimant’s asbestos exposure at Electric Boat did not constitute a significant cause of his mesothelioma and thus did not constitute an injury under the Workers’ Compensation Act. (Fund’s Brief at p. 15). Whether an injury arose out of and in the course of the employment requires a factual determination. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). 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).

In the instant case, Dr. Cherniak testified that the decedent’s exposure to asbestos at Electric Boat constituted a “significant factor” in the ultimate development of the decedent’s mesothelioma. (2/22/95 Depo. at p. 31). Dr. Cherniak’s opinion was based upon reasonable medical probability. Id. The trial commissioner is entitled “to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)); see also Paternostro v. Turner Construction Co., 13 Conn. Workers’ Comp. Rev. Op. 251, 1723 CRB-5-93-5 (April 18, 1995) (issues regarding asbestos exposure were issues of fact for the trial commissioner). In the instant case, the record fully supports the trial commissioner’s determination, and thus it may not be disturbed.

We will next address the applicability of P.A. 95-277, § 4(a)2 which amended § 31-349. Our Supreme Court in Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282 (1997) held that P.A. 95-277, § 4(a) “applies retroactively to all pending transfer claims in which the claimant’s second injury occurred prior to July 1, 1995.” Id. at 309. The Court ruled that the trial commissioner in Hall had correctly refused to consider the issue of transfer to the Fund at an August 8, 1995 formal hearing, and that the issue of medical qualification for transfer should have been submitted to the medical panel as provided by P.A. 95-277, § 4(a), which took effect on July 1, 1995.

In Soto v. Swank Crestline, Inc., Case No. 3255 CRB-7-96-1 (July 24, 1997) we addressed the effect of P.A. 95-277, § 4(a) on the trial commissioner’s authority to issue a decision regarding whether a claim medically qualifies for transfer pursuant to § 31-349. In Soto, the board held that where the last formal hearing was held on June 30, 1995 and the trial commissioner’s decision was rendered on January 11, 1996, the issue regarding whether a claim medically qualified for transfer pursuant to § 31-349 was under the jurisdiction of the medical panel rather than the trial commissioner. The board explained that in Hall, supra, the court held that P.A. 95-277, § 4(a) applies to all cases pending as of July 1, 1995. A “pending” case includes “all cases that have not yet reached final judgment, or at least those that were still in dispute when the amendment to § 31-349 went into effect on July 1, 1995.” Soto, supra. In the instant case, the transfer issue was undecided as of July 1, 1995, and hence it was a “pending” case. Therefore, jurisdiction over the issue of whether the claim medically qualifies for transfer belonged with the medical panel rather than with the trial commissioner.

Finally, we will address the Fund’s and the claimant’s contention that the trial commissioner erred in failing to make a finding as to the date of the decedent’s injury. The findings in the instant case do not indicate the date of injury. Moreover, the findings do not set forth sufficient facts to support a determination that the notice filed on October 28, 1993 was timely pursuant to § 31-349. Accordingly, these issues must be remanded to a trial commissioner for determination.

Accordingly, we will vacate the trial commissioner’s decision as far as it addressed the issue of medical qualification for transfer, and remand this matter in accordance with the above.

Commission Chairman Jesse M. Frankl concurs.

JOHN A. MASTROPIETRO, CONCURRING. I concur with the decision written by the majority in this case. In addition, I write separately in order to state my opinion regarding the conduct of the representative of the Second Injury Fund in this matter. During oral argument before this board, in the reasons of appeal, and in the legal brief submitted by the Fund, the Fund’s representative repeatedly attacked the integrity of the trial commissioner. Specifically, during oral argument the Fund’s representative repeatedly claimed that the trial commissioner’s findings of fact were “dishonest” and that they were “distortions” of fact. In the Fund’s reasons of appeal, the Fund states as reason number four: “The commissioner erred by misrepresenting, distorting, and taking out of context Dr. Godar’s testimony and report.” Similarly, the fifth reason of appeal states: “The commissioner erred by distorting, misrepresenting, and taking out of context Dr. Cherniak’s testimony from his May 22, 1995 deposition.”

In the Fund’s brief it is stated that “the commissioner accomplished the often practiced demagogue’s art of turning the truth into a lie.” (Fund’s Brief at p. 13). The Fund’s brief further states: “The commissioner’s finding at paragraph 15... represents such a lack of good judgment and discrimination, that one should not be able to look at this and say that any part of this case was being appropriately adjudicated.” (Fund’s Brief at p. 19, 20). Furthermore, the Fund’s brief states regarding findings numbers 17 to 20: “The lack of discrimination and good judgment pervades all of these paragraph (sic).” (Fund’s Brief at p. 22).

I find the Fund’s allegations to be both disrespectful and inappropriate. The case at hand involved highly complex medical issues regarding the etiology of mesothelioma. There were extensive depositions of both Dr. Godar and Dr. Cherniak, both of whom are highly respected medical experts. I have carefully reviewed these depositions along with the medical reports and other evidence in the record, and find that the trial commissioner’s findings are fully supported by the record. It cannot be forgotten that a trial commissioner is charged with the responsibility of determining the facts. Where the evidence is conflicting, “it is the quintessential... function [of the fact finder] to reject or accept certain evidence, and to believe or disbelieve any expert testimony....” Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45 (1996) (citations omitted). Furthermore, the “trier of fact can disbelieve any or all of the evidence... and can construe that evidence in a manner different from the parties’ assertion.” Id. This is exactly what the trial commissioner did in the instant matter.

In conclusion, I find the conduct of the Fund’s representative to be unwarranted and inappropriate, in that the Fund’s representative attacked in my opinion not merely the trial commissioner’s decision, but also attacked his integrity.

1 National Employers acted as the administrator of General Dynamics Corporation when it became self-insured effective September 1, 1980, which was subsequent to the claimant’s employment with General Dynamics. BACK TO TEXT

2 Public Act 95-277, § 4(a) provides that “The custodian of the Second Injury Fund and an insurer or self-insured employer seeking to transfer a claim to the fund shall submit all controverted issues regarding the existence of a previous disability under section 31-349 of the general statutes, as amended by section 3 of this act, to the chairman of the Workers’ Compensation Commission. The chairman shall appoint a panel of three physicians, as defined in subdivision (17) of section 31-275 of the general statutes, and submit such dispute to the panel, along with whatever evidence and materials he deems necessary for consideration in the matter. The panel may examine the claimant, who shall submit to any examination such panel may require. Within sixty days of receiving the submission, the panel shall file its opinion, in writing, with the chairman, who shall forward it, along with any records generated by the panel’s work on the case, to the commissioner having jurisdiction over the claim in which the dispute arose. The panel’s opinion shall be determined by a majority vote of the three members. Such opinion shall be binding on all parties to the claim and may not be appealed to the Compensation Review Board pursuant to section 31-301 of the general statutes, as amended by section 9 of this act.” BACK TO TEXT