Stevenson v. Edward W. Stevenson & Sons

CASE NO. 4710 CRB-5-03-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 17, 2004

LEIGH ANN STEVENSON, Dependent Widow

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., and Christopher Meisenkothen, 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. Following oral argument in this matter an appearance was filed by Jason M. Dodge, Esq. of Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412 in lieu of the Law Offices of Scott B. Clendaniel.

This Petition for Review from the August 7, 20031 Finding and Dismissal of the Commissioner acting for the Eighth District was heard July 30, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr., and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant is the dependent spouse of the decedent, Edward R. Stevenson. The claimant appeals from the August 7, 2003 Finding and Dismissal of the Commissioner acting for the Eighth District. At the outset we note that an appeal regarding this claim was previously heard by this tribunal and was the subject of our opinion in Stevenson v. Edward W. Stevenson & Sons, 4480 CRB-8-02-1 (January 8, 2003)[hereafter Stevenson I]. In Stevenson I, we remanded the matter to the trial commissioner for the purpose of finding the date of the first manifestation of symptom. In his August 7, 2003 Finding and Dismissal the trial commissioner found that the first known manifestation was May 6, 1996, when the claimant was advised by Dr. Duda of the causal nexus between the decedent’s exposure to asbestos and his death.

The issue presented for review is whether the trial commissioner erred in concluding that the claimant’s claim was untimely pursuant to § 31-294c(a). The pertinent facts are as follows. The decedent was employed by the respondent employer from the mid – 1960’s until his death on August 13, 1995 when he succumbed to lung cancer resulting from asbestosis. The claimant contends that the decedent’s exposure to asbestos occurred in the course of his employment. On May 26, 1998 the claimant filed a Form 30c Notice of Claim seeking surviving spouse benefits pursuant to § 31-306. Following our remand in Stevenson I, the trial commissioner concluded that the first known manifestation of symptom was May 6, 1996 and the applicable statute of limitation was that part of § 31-294c(a) providing

[I]f 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.

In order to apply the above referenced provision, the trial commissioner must have reasoned that the decedent’s death on August 13, 1995 occurred “within” two years of the first known manifestation of symptom of the occupational disease, i.e., May 6, 1996. Thus as the claimant’s written notice of claim was filed May 26, 1998, more than 2 years from the date of the claimant’s knowledge as to the first manifestation of symptom, the claim was untimely.

Following the trier’s August 7, 2003 Finding and Dismissal, the claimant filed this appeal. The claimant-appellant argues the applicable time limitation is that which is set out in that part of § 31-294c(a) providing that a claimant has three years from the first manifestation of symptom of the occupational disease to file a claim. Sec. 31-294c(a) provides:

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. (emphasis ours)

The appellant contends, inter alia, that as the claimant’s knowledge as to the first known manifestation of symptom occurred after the decedent’s death, the decedent did not die within two years of the manifestation of his occupational disease. The appellant further posits that as the decedent died before he knew of the causal link between his occupational exposure to asbestos and his disease, the trier could not have found that the decedent died within 2 years of the first manifestation of symptom.

Following our opinion in Stevenson I, supra, the General Assembly enacted Public Act 03-154. Public Act 03-154 provides:

The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.

Our review begins with how we are to construe the term “within” as it appears in § 31-294c(a) phrase, “if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease . . . .” In the Appellate Court’s opinion in Lehn v. Dailey, 77 Conn. App. 621, 626 (2003) our Appellate Court noted:

Where the legislature has not provided a specific definition of a word in a statute, “we look to the common understanding of [that word] as expressed in a dictionary.” (Internal quotation marks omitted.) State v. Russo, 259 Conn. 436, 449, 790 A.2d 1132, cert. denied, ___ U.S. ___, 123 S.Ct. 79, 154 L.Ed.2d 134 (2002); see General Statutes § 1-1(a) (“[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.”)

Webster’s Third New International Dictionary defines within, inter alia, as “not longer in time than, before the end or since the beginning.” Id., 2627 See also, Schwarzschild v. Binsse, 170 Conn. 212 (1976).

Applying this construction to the term “within” we conclude that the text in § 31-294c(a) stating “if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease” controls the time by which the dependent surviving spouse needed to make her claim. Thus, the claimant had two years from the date of the first known manifestation of symptom or one year from the date of the decedent’s death, whichever occurred later. Since claimant failed to satisfy either of these requirements, her claim was untimely.

In further support of her contention that the claim was timely filed, the claimant cites this tribunal’s dicta expressed in Mingrone v. Burndy Corp., 9 Conn. Workers’ Comp. Rev. Op. 252, 1109 CRD-7-90-9 (November 21, 1991) [hereafter Mingrone I] stating the following, “It is hardly conceivable that the legislature meant live victims to have three years and their surviving dependents to have less time to file occupational disease claims.” We recently considered Mingrone I’s comments as to the application of the three year time limitation for occupational disease claims in our opinion in Bartlett v. J.B. Williams Soap Factory, 4511 CRB-8-02-3 (March 3, 2003).

In Bartlett, we considered the timeliness of a dependent spouse’s claim where the first manifestation of an occupational disease occurred October 1994, prior to the decedent’s death. The decedent died July 1995 and the surviving spouse’s claim was not filed until August 1997. The claimant argued that the appropriate time limitation for bringing her claim was three years from the date of the decedent’s death.2 We disagreed and noted that while we sympathized with the surviving spouse’s situation the plain language of § 31-294c(a) could not be ignored. We relied on our earlier opinion in Merenski v. Greenwich Hospital, 4292 CRB-7-00-9 (September 12, 2001).

“The purpose of statutory construction is to give effect to the intended purpose of the legislature. . . . If the language of a statute is plain and unambiguous, we need look no further than the words actually used because we assume that the language expresses the legislature’s intent.” (Citations and internal quotation marks omitted.) State v. DeFrancesco, 235 Conn. 426, 435 (1995). In such circumstances, construction of the statute by reference to its history and purpose is unnecessary. State v. Gurreh, 60 Conn. App. 166, 171 (2000). A court may not torture the words of a statute in order to import ambiguity where the ordinary meaning of the language is straightforward. Sczapa v. United Parcel Service, Inc., 56 Conn. App. 325, 330 (2000). “While it is possible that in some cases the legislature has not said what it meant, nevertheless, when statutory language is clear and unambiguous we must presume that it meant what it said.” Trankovish v. Frenish, Inc., 47 Conn. App. 628, 631 (1998).

See Bartlett, supra. We also noted in Bartlett:

Public Act 80-124 amended the time limitation period for the filing of an injured workers’ occupational disease claim from one to three years. In its drafting of Public Act 80-124 amending § 31-294c (a) [fn4] the legislature left intact the reference to the time for filing dependents’ claims where death has occurred within two years. More than a dozen years have passed since Public Act 80-124 took effect and the legislature has not “clarified” an intention or resolved an ambiguity that the appellant suggests exists. We believe the legislature’s lack of action lends further support to our view that the statute should be construed as written.

Finally, we note that the appellant’s appeal also presents the same constitutional issues raised in Stevenson I, supra.3 As we noted in Stevenson I we lack the plenary authority to consider the constitutional issues presented for review. See Stevenson I, supra, citing 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 therefore affirm the August 7, 2003 Finding and Dismissal of the Commissioner acting for the Fifth District.

Commissioners A. Thomas White, Jr. and Charles F. Senich concur.

1 We note that extensions of time were granted during the course of the appellate process. BACK TO TEXT

2 See also Bartlett, note 2. In the alternative the claimant also argued that she should have been permitted to file her claim within three years from the date of the decedent’s death. Concluding as we did in Bartlett, i.e., declining to construe § 31-294c(a) so as to extend the time for filing a dependents claim where death occurred within two years of the first manifestation of symptom of the occupational disease to permitting a claim to be filed within three years of the first manifestation of symptom of the occupational disease, it was unnecessary to consider claimant’s alternative argument. BACK TO TEXT

3 “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.” Stevenson I, supra, note 1. BACK TO TEXT