Stevenson v. Edward W. Stevenson & Sons

CASE NO. 4480 CRB-8-02-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 8, 2003

LEIGH ANN STEVENSON, Dependent Widow of EDWARD R. STEVENSON (Deceased)

CLAIMANT-APPELLANT

v.

EDWARD W. STEVENSON & SONS

EMPLOYER

and

TRAVELERS PROPERTY & CASUALTY CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Lindalea Ludwick, Esq., Early, Ludwick and Sweeney, 265 Church Street, 11th Floor, P.O. Box 1866, New Haven, CT 06508.

The respondents were represented by Theodore Pappas, Esq., Law Offices of Scott B. Clendaniel, 300 Windsor Street, P.O. Box 2138, Hartford, CT 06145.

This Petition for Review from the December 27, 2001 Finding And Dismissal Re: Motion To Dismiss of the Commissioner acting for the Eighth District was heard July 19, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr and Michael S. Miles.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant is the dependent spouse of the decedent, Edward R. Stevenson. The claimant seeks dependent spouse benefits pursuant to § 31-306. The primary issue for our consideration is whether the claimant’s claim is timely under § 31-294c(a). Sec. 31-294c(a) sets out the statute of limitations for Workers’ Compensation claims.

Sec. 31-294c(a) provides in pertinent part:

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, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within the two-year period or within one year from the date of death, whichever is later.

The pertinent facts giving rise to this claim are as follows. The decedent was employed by the respondent-employer from sometime in the mid-1960’s until his death on August 13, 1995. The decedent died as a result of asbestosis. It is the claimant’s contention that the decedent’s exposure to asbestos occurred in the course of his employment.

The instant matter comes before us as a result of the trial commissioner’s December 27, 2001 Finding and Dismissal Re: Motion To Dismiss. In that Finding and Dismissal the trier granted the respondents’ Motion To Dismiss on the basis that the decedent’s spouse’s claim was untimely under § 31-294c(a).

The trial commissioner found the Notice of Claim dated May 22, 1998 was received by the Workers’ Compensation Commission on May 26, 1998. The trier then accepted for the purpose of the consideration of the respondents’ Motion To Dismiss that the first known manifestation of symptom of the decedent’s occupational disease was May 6, 1996. The trier concluded that under § 31-294c(a) the claimant had two (2) years from May 6, 1996 to file her claim for benefits pursuant to § 31-306, and as her claim was not filed until May 26, 1998 it was therefore untimely. The claimant took this appeal and presents the following issue on appeal; whether the trier’s ruling that the dependent spouse’s claim was untimely pursuant to § 31-294c(a) was erroneous as a matter of law. In addition to her argument as to the appropriate construction and application of the time limitations imposed by § 31-294c(a) the claimant also challenges the validity of § 31-294c(a) on federal and state Constitutional grounds.

At the outset we note that we lack the plenary authority to review the constitutional challenges presented in this appeal.1 See Thompson v. State/Univ. of Conn. Health Ctr., 4355 CRB-8-01-2 (January 15, 2002); Rayhall v. Akim Co., Inc., 4321 CRB-2-00-12 (November 5, 2001), citing Giaimo v. New Haven, 257 Conn. 481, 490 n. 8 (2001); Fish v. Caldor, Inc., 3840 CRB-7-98-6 (May 11, 1999).

We begin our review by determining the appropriateness of the trier’s assumption as to the date of the first manifestation of symptom. A trial commissioner’s conclusions must be supported by the facts found. In the instant matter the trier failed to find a material fact upon which his conclusion rests. We think that a determination as to when the first manifestation of symptom occurred is a material fact. It is a fact which must be found as the claimant’s right to have her claim heard is dependent upon it. Simmons v. Bonhotel, 40 Conn. App. 278 (1996); Croxford v. Columbia Mfg., 3758 CRB-2-98-1 (March 1, 1999). By virtue of the fact that the trier did not make an actual finding as to this fact we are compelled to remand this matter for a determination of when the first manifestation of symptom occurred. Our case law has long held that

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 to render a just judgment. When this appears, the case must be returned to the commissioner for a finding in accordance with the suggestions made by the trial court or this court, and for an award to be made on the corrected finding. Herbst v. Hat Corporation of America, 130 Conn. 1, 4, 31 A.2d 329; Cormican v. McMahon, 102 Conn. 234, 238, 128 A. 709.

Dombach v. Olkon Corporation, 163 Conn. 216, 228 (1972)

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

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

1 The Constitutional challenges raised by the appellant are whether the Commissioner’s Finding and Dismissal violates the claimant’s rights to redress, equal access to the courts and equal protection under the law under Article1, §§ 1, 10 and 20 of the Connecticut Constitution and the Fourteenth Amendment to the United States Constitution. BACK TO TEXT