Marshall v. UTC/Pratt & Whitney

CASE NO. 3623 CRB-01-97-06

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 20, 1998

JOSEPH MARSHALL

CLAIMANT-APPELLANT

v.

UTC/PRATT & WHITNEY

EMPLOYER

and

LIBERTY MUTUAL INSURANCE

INSURER

and

CIGNA INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Brian Prucker, Esq., Fitzgerald & Prucker, 1127 Tolland Turnpike, Suite 101, Manchester, CT 06040.

The employer and CIGNA were represented by James Pomeranz, Esq., and Douglas Drayton, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

The employer and Liberty Mutual were represented by Nancy S. Rosenbaum, Esq., Law Office of Nancy S. Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033.

The Second Injury Fund was represented by Ernie Walker, Esq., Office of the Attorney General, P.O. Box 120, 55 Elm Street, Hartford, CT 06141-0120, who did not appear at oral argument.

This Petition for Review from the June 3, 1997 Finding and Dismissal of the Commissioner acting for the First District was heard March 27, 1998 before a Compensation Review Board panel consisting of Commissioners Donald H. Doyle, Jr., Michael S. Miles and Amado J. Vargas.

OPINION

DONALD H. DOYLE, COMMISSIONER. The claimant has petitioned for review from the June 3, 1997 Finding and Dismissal of the trial commissioner acting for the First District. In that decision the trial commissioner concluded that the claimant failed to meet his burden of proof regarding his claim that he sustained a compensable injury. Specifically, the trial commissioner found that the claimant failed to prove that his chronic obstructive pulmonary disease was caused by toxic exposure at the claimant’s place of employment rather than by cigarette smoking. In support of his appeal, the claimant contends that his Motion to Preclude should have been granted because the respondents’ disclaimer was legally insufficient.

A brief procedural history is in order. The Compensation Review Board (“Board”) issued a decision on September 27, 1993 in the case of Marshall v. UTC/ Pratt & Whitney, 11 Conn. Workers’ Comp. Rev. Op. 204, 1317 CRD-1-91-10 (September 27, 1993). In that decision the Board addressed the claimant’s appeal from the September 26, 1991 Ruling on Claimant’s Motion to Preclude. The Board affirmed the trial commissioner’s conclusion that the respondents’ disclaimer was sufficiently specific to deny the claimant’s Motion to Preclude under § 31-297(b). Subsequently, a formal hearing on the merits of the claimant’s claim was held and a Finding and Dismissal was issued on June 3, 1997, which is the subject of the instant appeal.

In support of its appeal, the claimant contends that his Motion to Preclude should have been granted. The Board has already issued a decision regarding the Motion to Preclude in Marshall v. UTC/ Pratt & Whitney, 11 Conn. Workers’ Comp. Rev. Op. 204, 1317 CRD-1-91-10 (September 27, 1993). Thus, the September 27, 1993 decision by the Board became the law of the case, subject to a right of appeal to the Appellate Court. See Chase v. State of Connecticut, 15 Conn. Workers’ Comp. Rev. Op. 292, 295, 2185 CRB-2-94-9 (June 20, 1996), rev’d. 45 Conn. App. 499 (1997).

The claimant does not make any arguments regarding the June 3, 1997 Finding and Dismissal, which is the subject of the instant appeal, nor has the claimant filed a Motion to Correct. Without a Motion to Correct, this board must presume that the trial commissioner’s factual findings are accurate. Seltenreich v. Stone & Webster Engineering Corp., 15 Conn. Workers’ Comp. Rev. Op. 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996). The legal conclusion that the claimant has not met his burden of proof as to causation logically follows from those factual findings, and we may not disturb that conclusion on review. Fair v. People’s Savings Bank, 207 Conn. 535 (1988); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).

The trial commissioner’s decision is therefore affirmed.

Commissioners Michael S. Miles and Amado J. Vargas concur.