Ryan v. VIC Insulation et al.

The claimant was represented by Kurt Koehler, Esq., and Elizabeth Gallagher Esq., Gallagher, Gallagher & Calistro, 1377 Boulevard, P.O. Box 1925, New Haven, CT 06509-1925.

The respondents VIC Insulation and EBI Insurance were represented by James D. Moran, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430-0550.

The respondents Vic Insulation and General Accident Insurance Company were represented by James M. Hughes, Esq., McNamara & Kenney, 75 Kings Highway Cutoff, Fairfield, CT 06430.

The respondents A & G Insulation and Aetna Insurance were represented by Jonathan F. Reik, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

The respondent Transco, Inc. was represented by Robert Schwab, Esq., Kennedy, Johnson, D’Elia & Gillooly, 545 Long Wharf Drive, New Haven, CT 06511.

The respondents D & N Insulation Co. and Liberty Mutual were represented by Laurie McQuade, Esq., Law Office of Robert M. Brennan, One Century Tower, 265 Church Street, Suite 802, New Haven, CT 06510.

The respondents Crouse Nuclear Energy Services and Travelers Property & Casualty were represented by Nancy E. Berdon, Esq., Sizemore Law Office, Crossroads Corporate Park, 6 Devine Street, North Haven, CT 06473.

The respondents VIC Insulation, Providence Washington, Talco Insulation, Inc. and CIGNA were represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

The respondents Cummings Insulation, Inc. and CNA were represented by Howard I. Levine, Esq., Law Offices of Grant H. Miller, Jr., 29 South Main Street, West Hartford, CT 06107-2445.

The respondents Talco Insulation and Merchants Mutual were represented by Catherine Wilowski, Esq., and Michael E. Wolf, Esq., Law Offices of Marc N. Needelman, 800 Cottage Grove Road, Suite 313, Bloomfield, CT 06002.

The Second Injury Fund was represented by Kenneth H. Kennedy Jr., Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120, who did not appear at oral argument.

The Petition for Review from the March 31, 1998 Finding and Dismissal by the Commissioner acting for the Third District was heard November 6, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr. and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the March 31, 1998 Finding and Dismissal of the Commissioner acting for the Third District. In that decision the trial commissioner dismissed the claimant’s claim for his condition of upper respiratory and sinus infections due to exposure to irritants at work. Specifically, the trial commissioner concluded that the claimant failed to file a notice of claim within one year following his last exposure to irritants at work as required by § 31-294c. The claimant argues on appeal that the commissioner erred by concluding that the claimant’s condition did not constitute an occupational disease. We find no error.

Initially, we will address the Motion to Dismiss filed by the respondent insurer Providence Washington Insurance which contends that the claimant failed to file timely Reasons for Appeal1 pursuant to Admin. Reg. § 31-301-2. According to that regulation, Reasons for Appeal were due within ten days of the date the petition for review was filed on April 13, 1998. However, the respondent’s Motion to Dismiss should have been filed within ten days of the day the reasons of appeal became late, pursuant to Practice Book § 4056. Matey v. Dember, 3153 CRB-5-95-8 (January 10, 1997); Sager v. GAB Business Services, 11 Conn. App. 693, 698 (1987). Because the respondent’s Motion to Dismiss was not timely and because we find no prejudice caused by the claimant’s late filing of Reasons of Appeal, we deny the Motion to Dismiss.

We now turn to the merits of the claimant’s appeal. The trial commissioner found the following relevant facts. The claimant alleged that as a result of his employment as a pipe insulator, he suffered from respiratory infections, sinus infections and allergic reactions to substances used in the pipe insulation trade. The claimant was employed as a pipe insulator from 1975 through June of 1992 with various employers. The claimant’s last period of employment as a pipe insulator with the respondent A & G Insulation was from March of 1992 to June of 1992. The claimant treated with Dr. Landino, who informed the claimant in September of 1992 that his upper respiratory problems were related to exposure to airborne dust particles at work. The claimant did not file a notice of claim until November of 1993.

The claimant was examined by Dr. Cullen on October 29, 1992, who indicated that the claimant is a severe atopic who suffers from remarkable frequency of rhinitis, conjunctivitis, and recurrent sinus infections. Dr. Cullen indicated that “atopic” means that the claimant has a predisposition to infection. Dr. Cullen did not identify the claimant’s atopic condition as a disease. Furthermore, Dr. Cullen opined that the atopy and allergies were not caused by the claimant’s employment and that non-occupational dust exposure could trigger infections in an atopic person. The trial commissioner found that “[s]ufficient evidence has not been presented to indicate that atopy, conjunctivitis, rhinitis or sinus infections are peculiar to the pipe insulating trade.” (Finding No. 25).

Section 31-294c(a) provides for two separate time periods within which a notice of claim may be filed: one year from the date of an accidental injury, or three years from the first manifestation of a symptom of an occupational disease. Discuillo v. Stone & Webster, 242 Conn. 570, 575-78 (1997). A claim for repetitive trauma must be filed within one year following the last date of injurious exposure. Dorsey v. United Technologies Corp., 47 Conn. App. 810, 812 (1998). This Commission has no jurisdiction over claims that have not been filed in a timely fashion. Crochiere v. Board of Education, 227 Conn. 333, 346 (1993).

Section 31-275(15) defines “occupational disease” as “any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such . . . .” Our Supreme Court has explained that such a disease “need not be unique to the occupation of the employee or to the work place; it need merely be ‘so distinctively associated with the employee’s occupation that there is a direct causal connection between the duties of the employment and the disease contracted.’” Hansen v. Gordon, 221 Conn. 29, 35 (1992) (hepatitis contracted by dental hygienist was occupational disease). This would not include a disease which resulted from particular conditions surrounding employment in a kind of work which “would not from its nature be more likely to cause it than would other kinds of employment carried on under the same conditions.” Crochiere, supra, 333-34, quoting Madeo v. I. Dibner & Brother, Inc., 121 Conn. 664, 667 (1936); see also, Discuillo, supra, 579-80; Dorsey, supra.

Whether or not the claimant’s condition constitutes an occupational disease is essentially a factual question for the trial commissioner to determine. Pekar v. Warnaco, Inc./Warner’s Division, 3611 CRB-4-97-5, 3721 CRB-4-97-10 (Oct. 16, 1998); Pelosi v. Anchor Fasteners, 3542 CRB-5-97-2 (June 2, 1998). In the instant case, there is no incontrovertible evidence that the claimant’s condition is either peculiar to the claimant’s occupation or to his specific workplace. The trial commissioner’s determination that the claimant’s condition did not constitute an occupational disease is fully supported by the record, including the opinion of Dr. Cullen. Accordingly, we may not disturb that decision. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Thus, the one-year statute of limitations applies to the claimant’s claim under § 31-294c, rather than the three-year notice period allowable for occupational disease claims. See Discuillo, supra; Crabb v. N.B. Jon-Son, Inc., 3296 CRB-1-96-3 (Nov. 19, 1997).

The trial commissioner’s decision is affirmed.

Commissioners Donald H. Doyle, Jr. concurs.

MICHAEL S. MILES, COMMISSIONER, CONCURRING. I concur with the majority’s decision in the instant case. However, in my opinion, it appears that there is sufficient evidence to support a determination that the claimant’s condition constituted an occupational disease. Specifically, the trial commissioner found that the claimant’s atopic condition was “aggravated by exposure to construction dust that he was exposed to as a pipe insulator.” (Finding ¶ D). The claimant’s condition appears to satisfy the definition of an occupational disease, specifically that it “need not be unique to the occupation of the employee or to the work place; it need merely be ‘so distinctively associated with the employee’s occupation that there is a direct causal connection between the duties of the employment and the disease contracted.’” Hansen, supra, at 35. Because the determination of whether the claimant’s condition constituted an occupational disease or a repetitive trauma injury is a question of fact for the trial commissioner, and because the trial commissioner considered this issue in his findings, I therefore must give deference to his determination and affirm his decision.

1 The respondent also contends that the claimant failed to file a timely Motion to Correct. However, the record indicates that the trial commissioner granted two motions for extension of time to file the Motion to Correct, and that the claimant filed a timely Motion to Correct on August 17, 1998. BACK TO TEXT