CASE NO. 4642 CRB-2-03-3
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 12, 2004
KENNETH JACOBSON, Deceased
HELEN JACOBSON, Dep. Widow
GENERAL DYNAMICS CORP./ELECTRIC BOAT DIVISION
The claimant was represented by Stephen Embry, Esq., David Neusner, Esq., and Nathan Shafner, Esq., Embry and Neusner, 118 Poquonnock Road, P.O. Box 1409, Groton, CT 06340.
The respondent employer and ACE USA, were represented by Lucas Strunk, Esq., and Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
The respondent employer and National Employers, were represented by David Bull, Esq., Murphy & Beane, One Union Plaza, P.O. Box 590, New London, CT 06320.
The respondent employer as a self-insured, was represented by Robert Bystrowski, Esq., Morrison, Mahoney and Miller, One Constitution Plaza, 10th Floor, Hartford, CT 06103.
This Petition for Review from the February 26, 2003 Finding and Award of the Commissioner acting for the Second District was heard October 31, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent-insurer ACE USA appeals from the February 26, 2003 Finding and Award of the Commissioner acting for the Second District. In that Finding and Award the claimant, the dependent spouse of the decedent, was awarded chapter 568 benefits. The pertinent facts in this matter are as follows.
The claimant’s decedent, Kenneth Jacobson, worked for various employers. In the course of his employment the decedent was exposed to asbestos, contracted asbestosis and eventually succumbed to lung cancer. From January 17, 1963 to June 29, 1964 and again from December 5, 1978 to April 10, 1979, the decedent worked for the respondent employer Electric Boat at a facility in Connecticut. The decedent alleged he was exposed to asbestos during this tenure of employment.
Following his employment with Electric Boat in 1964, the decedent was employed as a sheet metal worker by Butler Brother Oil Company in Rhode Island. This period of employment was between 1965 and 1976. The decedent then rejoined Electric Boat and from December 5, 1978 to April 10, 1979 he worked at an Electric Boat facility in Connecticut. Between February 19, 1980 and June 25, 1996 the decedent worked for the respondent Electric Boat, at its Quonset Point facility in Rhode Island.
While the decedent initially was able to participate in some of the proceedings relating to his claim, he eventually succumbed on January 9, 2000. Thereafter his dependent spouse pursued this matter. Additionally, a claim was pursued under the federal Longshore Harbor Workers’ Compensation Act and an award was made.
Following proceedings before the trier, the commissioner issued his February 26, 2003 Finding and Award. In that Finding and Award the commissioner found, inter alia, the claimant was exposed to asbestos while working for the respondent Electric Boat and that his illness and death were causally related to that asbestos exposure. The trial commissioner awarded benefits pursuant to chapter 568 with a caveat providing for the credit for applicable payments paid pursuant to the Longshore Harbor Workers’ Compensation Act as established in McGowan v. General Dynamics Corporation/Electric Boat Div., 210 Conn. 580 (1989). Thereafter the respondent insurer, ACE USA took this appeal.
The appellant, ACE USA, raises a number of issues of appeal. They are; (1) whether the trial commissioner erred in failing to find the decedent was exposed to asbestos while employed by Butler Bros., in Rhode Island between 1965 and 1976, (2) whether the trial commissioner erred in failing to find the decedent was exposed to asbestos while employed at Electric Boat’s Quonset Point Rhode Island facility and concomitantly, what proportionate share should be assigned to the risk carrier during this period of decedent’s asbestos exposure, (3) whether the trial commissioner erred in failing to apply the apportionment provisions in § 31-275(1)(D) due to the decedent’s cigarette smoking history and pre existing lung disease, and (4) whether the trial commissioner failed to issue his decision within the 120 day time frame set out in § 31-300 and thus, the matter should be remanded for proceedings de novo.
On the basis of our ultimate holding as to the timeliness of the trier’s decision under § 31-300 , and our somewhat detailed discussion we reserve our ruling and discussion for review later in this opinion. As to the issues raised by the appellants on the merits we first consider whether the trial commissioner erred in failing to find the decedent’s employment for the period between 1965 – 1976 with a Rhode Island employer, Butler Bros., did not expose the claimant in any substantial way to asbestos. See Finding ¶ 10. Subsumed within this issue is whether the trial commissioner’s denial of the appellant’s Motion To Correct this finding was also error.
The standard of review for determining the legal appropriateness of a trier’s ruling in a Motion To Correct is whether the factual correction sought is admitted or undisputed, without evidence, and/or would compel a different legal conclusion. See Caldwell v. Shaw’s Supermarkets, Inc., 4493 CRB-3-02-2 (February 13, 2003); Loffredo v. Wal-Mart Stores, Inc., 4369 CRB-5-01-2 (February 28, 2002). In support of its Motion to Correct this finding, the appellant cites various medical reports and records. However, our review of the record reflects that the factual finding which the appellant seeks to alter was not undisputed. The decedent testified he was minimally exposed to asbestos, if at all, during his employment tenure at Butler Bros. Claimant’s Exhibit A, CX-13, March 7, 1997, Deposition of Kenneth Jacobson, Sr., pp 4-5. Thus, the trier’s finding has support in the evidentiary record and is predicated on the weight and credibility the trier assigned. That is the trier’s function. Sprague v. Lindon Tree Service, Inc., 80 Conn. App. 670 (2003).
Additionally, the appellant contends the trier erred in failing to find the decedent was exposed to asbestos while working at the Quonset Point facility in Rhode Island. As with the correction sought discussed above, whether the decedent’s employment at Electric Boat’s Rhode Island facility exposed him to asbestos that was a proximate cause of his resulting disease and death is a matter for the trier’s determination as it is dependent upon the weight and credibility assigned to the evidence. The appellant argues that the trier failed to make a finding in his February 26, 2003 Finding and Award as to the claimant’s exposure at Electric Boat’s Rhode Island facility and the matter must be remanded so the self insured’s portion of financial liability for the award may be determined. We disagree.
It is true the trial commissioner in his Finding and Award did not include a finding as to the decedent’s asbestos exposure while at the Quonset Point facility. However, the lack of such a finding does not necessarily reflect an oversight on the commissioner’s part. It appears that the trier did not make this finding because the trier did not believe (1) the decedent was exposed to asbestos while working at the Quonset Point facility or (2) the exposure, if any, was not a proximate cause of the decedent’s asbestosis.
Our conclusion here is further buttressed by the commissioner’s denial of the Motion To Correct. The trier did not make the requested factual finding in his Finding and Award. When given a second opportunity to include such a finding by virtue of the appellant’s Motion To Correct, the commissioner refused. See Kroczewski v. Old Fox Chemical, Inc., 8 Conn. Workers’ Comp. Rev. Op. 13, 730 CRD-1-88-5 (January 5, 1990). Supporting the trier’s “non” finding is the decedent’s testimony that the insulation on the pipes where he worked at the Electric Boat Quonset Point facility was in good condition. See Claimant’s Exhibit A, CX-13, March 7, 1997 Deposition of Kenneth Jacobson, Sr., p. 20. Additionally, Dr. John A. Pella testified that the Quonset Point asbestos exposure was minimal. See Claimant’s Exhibit A, CX-12 Deposition of John A. Pella, M.D., p. 23. Claimant’s Exhibit A, Sub-exhibit 12 p.23. Thus, the trier did not err in his ruling on the appellant’s Motion To Correct and furthermore, a remand for a finding as to the proportionate share of liability owed by the employer as a self insured is not required where no factual basis for assessing liability exists.
Next, we consider whether the trial commissioner erred in failing to apply the apportionment provision set out in § 31-275(1)(D). That statute provides, “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 . . . .” The appellant contends the decedent’s smoking history resulted in pre-existing lung disease and thus, the appellant should be permitted to apportion liability under § 31-275(1)(D). We do not agree.
In Cashman v. McTernan School, Inc., 130 Conn. 401 (1943), our Supreme court held that the term pre-existing disease refers to pre-existing “occupational” disease. Essentially, the appellant would have us overrule our Supreme Court’s long standing holding in Cashman. When presented with this same opportunity in Criscio v. State/Southern Conn. State Univ., 4271 CRB-3-00-7 (June 1, 2001) we declined to do so. In Criscio we provided a detailed discussion as to why we would not rule as the appellant’s wished. Chief among our reasons were this tribunals status as an intermediate appellate court bound by the rulings of a higher court and the principles of stare decisis. Since our ruling in Criscio, the Supreme Court in Gartrell v. Department of Correction, 259 Conn. 29 (2002) was also presented with the opportunity to revisit its holding in Cashman and concluded the revisiting of its conclusion in Cashman was left for another day. If our own Supreme Court declined to revisit its holding as to the construction of “pre-existing disease” in § 31-275(1)(D) we can think of no reason that would persuade this tribunal to deviate from the precedent established in Cashman. See also; Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003); Prisco v. North & Judd, 10 Conn. Workers’ Comp. Rev. Op. 154, 1190 CRD-8-91-3 (June 30, 1992).
We now consider the procedural challenge raised by the appellant, i.e, whether the instant matter should be remanded for proceedings de novo on the basis of the trier’s failure to comply with the 120-day time requirement set out in § 31-300. Section 31-300 provides, “As soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of the commissioner’s findings and award.” The appellant claims the trial commissioner’s February 26, 2003 Finding and Award did not comply with § 31-300’s requirements and gave notice to its objection in its Reasons For Appeal filed March 14, 2003.
As we most recently noted in Bernardo v. Capri Bakery, 4570 CRB-3-02-9 (February 10, 2004) the failure of a commissioner to issue a decision within the time required by § 31-300 makes the decision voidable. See also; Schreck v. Stamford, 72 Conn. App. 497 (2002). However as we also noted in Bernardo, the voidability of the trial commissioner’s decision often turns on whether the objection to the untimeliness of the decision is seasonable.
On appeal, the appellant contends that Schreck stands for the proposition that “[i]f the trial commissioner fails to issue a decision within 120 days of closure of the record then a party can object upon issuance of the decision and request a trial de novo before a new commissioner.” Appellant’s Brief, p. 9. Here, the appellant contends that the record was closed on December 17, 2001 and thus, the trier’s decision was due 120 days thereafter. The trier’s decision was not issued until February 26, 2003. If one accepts December 17, 2001 as the date of the last hearing in this matter, then the commissioner’s decision is untimely.
Our review of the record indicates that a pre-formal hearing was scheduled and held May 13, 2002 and another formal hearing was scheduled and held November 1, 2002. Thus, the hearing held November 1, 2002 would seem to make the trial commissioner’s Finding and Award timely. However, on appeal the appellant contends that the November 1, 2002 hearing was of no consequence and did not serve any useful purpose. Nonetheless, a representative of the appellant’s firm appeared and it seems no objection to the hearing was raised.
Following oral argument before this Board the parties were polled as to whether the appellant expressly waived the time requirements of § 31-300 at the November 1, 2002 hearing. None of the attorneys who appeared at the November 1, 2002 hearing could recall the appellant providing the commissioner with an expressed waiver of the 120-day obligation. Thus, we are left to determine whether the appellant’s conduct served as an implied waiver of § 31-300’s requirements.
We note that one of the issues presented for the commissioner’s consideration was whether the apportionment provision contained in § 31-275(1)(D) was applicable. In the course of the proceedings before the trier, our Supreme Court issued its opinions in Gartrell v. Dept. of Correction, 258 Conn. 137 (2001), [Gartrell I]. Following the Court’s Gartrell I opinion a Motion For Reconsideration was filed which the Court granted. The Supreme Court reconsidered and issued Gartrell v. Dept. of Correction, 259 Conn. 29 (2002) [Gartrell II] on January 15, 2002. Both Gartrell I and Gartrell II, concerned the application of § 31-275(1)(D) as such were legal precedent relevant to the trial commissioner’s consideration in this matter.
The sequence of the Supreme Court’s opinions and the proceedings before the trial commissioner are as follows. Gartrell I was issued by the Supreme Court on September 25, 2001. Following that ruling the trial commissioner re-opened the proceedings. On December 17, 2001 the Supreme Court granted a Motion For Reconsideration of its opinion in Gartrell I. See Gartrell II, supra, note 14. The record in this matter reflects that on the same day the Supreme Court granted the Motion For Reconsideration in Gartrell I, briefs were filed with the trial commissioner as to Gartrell I’s application in the instant matter. The appellant contends that this December 17, 2001 hearing, at which the parties submitted briefs, was the last hearing at which documents the commissioner was required to consider were proffered. The appellant thus contends the 120 days for the rendering of the decision began to run as of that date. We disagree. Given that the court reversed its earlier holding in Gartrell I, and that ruling was not issued until January 15, 2002, December 17, 2001 cannot be the date at which the trial commissioner had all documents necessary for his determination in this matter.
As to the nature of the trial level hearings that followed, the record in this matter indicates that notice of a pre-formal hearing was scheduled for May 13, 2002 and a formal hearing was scheduled for November 1, 2002. Both hearing notices indicate “A claim for compensation having been made in the above-entitled matter, you and each of you are hereby notified that Commissioner Amado J. Vargas will hold a hearing to address the following issue(s): 31-275-Compensability/Causal Connection 31-306-Survivor’s Benefits.” We note that it is customary that pre-formal hearings are not usually put on the record. However, a formal hearing is generally a hearing that is conducted on the record. In the instant matter no such record of the November 1, 2002 formal hearing was prepared therefore, what additional information the trial commissioner gathered requiring his consideration before issuing his decision in this matter is impossible to discern.1
In fact a representative of the appellant’s law firm seems to have appeared at both hearings. Our review of the record fails to show that the appellant objected to the additional pre-formal hearing of May 13, 2002 or the additional November 1, 2002 formal hearing. We fully appreciate the appellant’s contention that hearings should not be permitted where such hearings are scheduled for no other purpose then to extend the time by which the commissioner must issue a decision. However, our courts have held that “A judge is not an interlocutor presiding over a debate.” Statewide Grievance Committee v. Ankerman, 74 Conn. App. 464, 471 (2003) quoting McWilliams v. American Fidelity Co., 140 Conn. 572, 580-81 (1954). In the instant case, there is no record by which we may determine that the November 1, 2002 formal hearing did or did not provide the trial commissioner with some useful information in his consideration of this matter. Furthermore, as the November 1, 2002 was the first formal hearing following the Supreme Court’s reversal of its ruling in Gartrell I we cannot infer that the hearing held was solely for the purpose of extending the time for issuing the trier’s decision.
We therefore affirm the February 26, 2003 Finding and Award of the Commissioner acting for the Second District.
Commissioners James J. Metro and Howard H. Belkin concur.
1 Following oral argument in this matter the parties were polled as to whether the appellant’s expressly waived their right to a decision within the time period set out in § 31-300’s. This inquiry occurred on the basis of a notation in the Commissioner’s notes from the May 13, 2002 Pre-Formal indicating that the parties waived their right to a decision within 120 days. Additionally there was a notation in the Commissioner’s notes that the parties present at the November 1, 2002 formal hearing waived their right to have a court reporter present and waived their right to a decision within 120 days. Upon discovery of this information an inquiry was made of the parties as to whether the appellant’s expressly waived their right to a decision within 120 days at the November 1, 2002 Formal hearing. However, none of those who appeared at the November 1, 2002 had any independent recollection of any such express waiver. Thus, as we are unable to determine whether the appellant’s expressly waived their right to a decision within 120 days we are left to determine if the appellant’s conduct was such that a waiver may be inferred. BACK TO TEXT