Fredette v. Connecticut Air National Guard

The claimant was represented by Richard L. Gross, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge Street, P.O. Drawer 929, Groton, CT 06340.

The respondent-employer was represented by Philip Schulz, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 28, 2004 Ruling on Motion to Preclude of the Commissioner acting for the Eighth District was heard June 17, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Michelle D. Truglia and James J. Metro.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The Respondent, State of Connecticut, Connecticut Air National Guard appeals from the June 28, 2004 Ruling of the Commissioner acting for the Eight District granting a Motion to Preclude and has challenged the commissioner’s July 26, 2004 Ruling on Respondent’s Motion to Correct. Claimant, Rita M. Fredette, is the dependent widow of John O. Fredette, the decedent, a former civilian employee of the Air National Guard who died March 25, 2003 from asbestosis.

Counsel for the respondent, the Attorney General’s office has taken issue with two elements of the trial commissioner’s decision. They assert that the Air National Guard is not a covered employer under Chapter 568 as a result of it being under federal control since 1969. They also contest the timeliness of the notice of claim based on their interpretation of § 31-294c(a) C.G.S. Both issues implicate subject matter jurisdiction of the Commission, and therefore as the Attorney General’s office correctly points out, they cannot be waived regardless of delay on the part of the respondent to raise a jurisdictional defense. See DelToro v. Stamford, 64 Conn. App. 1, 5-7 (2001).

The jurisdiction issue regarding the Air National Guard can be addressed expeditiously. Respondent admits the Connecticut Air National Guard was not under federal auspices until 1969. It is mutually acknowledged the decedent was employed from 1960-1969 by the Air National Guard. As a result, the decedent was a “covered employee” and the commission possesses jurisdiction over the claim for that reason.

Assumingly, arguendo that the decedent had not commenced his employment until 1969 or later the respondent’s jurisdictional claims still fail. Mr. Fredette was a civilian employee of the Air National Guard, not an officer or enlisted man. As such, his status is governed by § 27-31 C.G.S. entitled “Employees” which states “The adjutant general shall appoint such number of employees, subject to the provisions of Chapter 67 and section 4-40, as may be required to perform adequately the duties required of the department.” As Chapter 67 of the Connecticut General Statutes is the “State Personnel Act,” Mr. Fredette was an employee of the state for the purposes of the Workers’ Compensation Act and this statute is dispositive of the jurisdictional argument advanced herein. The Attorney General office’s citation of Chodkowski v. UTC/Pratt & Whitney, 736 CRD-3-88-5 (December 18, 1989) and § 27-67 C.G.S. is inapposite as they deal with uniformed members of the National Guard, not its civilian employees.1

The issues regarding proper notice are more substantial in nature and closely track a number of similar cases to which the Compensation Review Board has had to determine the proper scope of the statute in regards to the claim brought post mortem. Section 31-294c(a) sets out the statute of limitations for Workers’ Compensation claims. Section 31-294c(a) provides in pertinent part:

The facts are as follows. Mr. Fredette was initially diagnosed with an occupational lung disease on September 25, 2000. He died on March 25, 2003. His widow filed a notice of claim on May 28, 2003.

There is no question the Notice herein was filed within one year of death. The issues in dispute are 1) the date of when the “manifestation” of the disease occurred consistent with the standards outlined in Bremner v. Eidlitz & Son, Inc., 118 Conn. 666, 670 (1934) and Discuillo v. Stone and Webster, 242 Conn. 570 (1997); and 2) whether this manifestation date is proximate enough in time for the May 28, 2003 notice to be legally effective.

In regards to the issue of manifestation, it appears both sides have relied on the date of September 25, 2000, at which time the decedent was diagnosed with asbestosis. Claimant points out in her brief that no evidentiary hearing was held by the trial commissioner to determine the date of manifestation. However, the claimant provided this date on the Form 30C that commenced the claim. Having advanced a specific date of manifestation to the trial commissioner, and not having filed a Motion to Correct to advance an alternative date, the claimant cannot now challenge their own averments on appeal.

Moreover, even if this matter were to be remanded for an evidentiary hearing regarding the date of manifestation (as was ordered in Stevenson v. Edward W. Stevenson & Sons, 4480 CRB-8-02-1 (January 8, 2003) (aka “Stevenson I”), there does not appear to be a legal rationale to justify a later date of manifestation. Evidence could come to light that prior to the September 25, 2000 diagnosis the decedent would have been aware of the symptoms of asbestosis, and thereby starting the clock running for filing a claim within the statutory time period. “We believe that the correct interpretation of § 31-294c demand that the statute of limitations begin running at the time a symptom of the disease is, or should have been recognized by the claimant, irrespective of whether a causal connection has been drawn between the disease and the claimant’s employment.” Ricigliano v. Ideal Forging Corp., 4851 CRB-6-04-9 (September 28, 2005). (Emphasis added).

While the trial commissioner could potentially determine the decedent should have recognized his condition prior to his September 25, 2000 diagnosis; conversely, the trial commissioner would be bound by the claimant’s own evidence that the decedent received a diagnosis from a physician on September 25, 2000 regarding asbestosis and clearly the presence of the disease “should have been recognized” at such time based on the legal standard enunciated in Ricigliano, Id. Therefore, a remand for an evidentiary hearing would be futile in advancing the claimant’s case.

The final issue is one which recurs in various iterations: the appropriate deadline for a surviving dependent to file a claim for compensation when the decedent fails to file such a claim prior to their death. Mr. Fredette died more than two years after the date of manifestation; but the claim was filed less than one year after his death. The Attorney General’s office focuses on the former fact to assert the claim is untimely; the claimant on the latter fact to assert timeliness and further points out that had Mr. Fredette lived he would have had three years from the date of manifestation to submit a claim.

The trial commissioner rejected those portions of respondent’s Motion to Correct which sought to apply § 31-294c(a) so as to declare claims brought by a dependent for deaths more than two years after manifestation as untimely and legally barred. It appears the trial commissioner agreed with the claimant that in the event death occurs more than two years and less than three years after the date of manifestation, the dependent inures to the same three-year period to file as if the decedent were still alive and able to file themselves.

Recent precedents regarding the notice provisions of § 31-294c(a) C.G.S. are not fully dispositive of these issues. The claim was not filed more than three years after the date of first manifestation as in Ricigliano, id., or filed more than one year after the death of the decedent and more than two years after date of first manifestation as in Bartlett v. J.B. Williams Soap Factory, 4511 CRB-8-02-3 (March 3, 2003). In those cases we found the late notice negated jurisdiction for the claim.

The facts at hand appear similar to an older precedent wherein the Compensation Review Board determined that when a claim is filed a) more than two years but less than three years after date of manifestation, and b) less than one year after date of death, that the statutory time requirements of § 31-294c(a) are met. In Mingrone v. Burndy Corporation, 9 Conn. Workers’ Comp. Rev. Op. 252, 1109 CRD-7-90-9 (November 21, 1991) Commissioner Arcudi discussed the commission’s rationale. “Assuming arguendo that May 15, 1986 was the first date of known manifestation, the decedent, if he had been alive, would have had until May 15, 1989 to file a claim. The surviving widow filed her claim by certified mail with the employer on December 16, 1988 well before the three-year period. As the date of death was October 16, 1988, the claim was also filed within one year of the death. 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. Even if that were the legislative intent, it does not apply here as death did not occur within two years of the possible known manifestation of symptom. As death did not occur within the period, then the limitation period is that set forth at the beginning of the statute, three years from manifestation.”

As the present fact pattern herein is consistent with the fact pattern in Mingrone, the trial commissioner’s decision was legally correct and consistent with the established law. In Bartlett, we found Mingrone inapplicable to the circumstances in that case “The claimant was required to have filed her claim within two years from the manifestation of symptom of the occupational disease or within one year from the date of the decedent’s death, whichever is later” (Emphasis added). In this case, the trial commissioner correctly determined that when a death occurs more than two years and less than three years after manifestation of illness that the appropriate time bar for filing a claim is the three-year period in § 31-294c(a) C.G.S.

We therefore affirm the commissioner’s decision of the Ruling on the Motion to Preclude.

Commissioners Michelle D. Truglia and James J. Metro concur.

1 The fact the Air National Guard is federally funded is not relevant to these issues. Mr. Fredette was an employee under the control and direction of the state Air National Guard. See Mathurin v. Putnam, 136 Conn. 361, 369-370 (1950), wherein a police officer injured at an athletic event while receiving payment from a board of education was held to be an employee of the police department, not the school board, also Malchik v. Division of Criminal Justice, 266 Conn. 728, 743 (2003) (absence of direction or control from the state determinative that claimant was not a state employee). There is no evidence in the record that the Pentagon exercises the level of supervision of Air National Guard employees sufficient to satisfy the tests in Mathurin or Malchik, et seq. BACK TO TEXT