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CASE NO. 5521 CRB-1-10-1
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 11, 2012
AVROM GREENBERG (Deceased)
VIRGINIA GREENBERG, Dependent Widow
ABB COMBUSTION ENGINEERING SERVICES, INCORPORATED
BROADSPIRE, A CRAWFORD COMPANY/CNA
GALLAGHER BASSETT SERVICES, INC.
TRAVELERS PROPERTY & CASUALTY
Claimants Avrom Greenberg, deceased, and Virginia Greenberg, Dependent Widow of Avrom Greenberg, were represented by Louis N. George, Esq., and Jeffrey O. McDonald, Esq., Hassett & George, P.C., 945 Hopmeadow Street, Simsbury, CT 06070.
Respondent ABB Combustion Engineering Services, Incorporated, and Broadspire/CNA were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, LLC, 95 Glastonbury Boulevard, Glastonbury, CT 060334412.
Respondent ABB Combustion Engineering Services, Incorporated, and Gallagher Bassett Services, Inc., were represented by Lawrence R. Pellett, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
Respondent ABB Combustion Engineering Services, Incorporated, and Travelers Property & Casualty were represented by Jack Clarkson, Esq., Law Office of Charles G. Walker, Esq., 300 Windsor Street, Hartford, CT 061452138.
This Petition for Review from the December 23, 2009 Finding and Order of the Commissioner acting for the First District was heard on October 22, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Peter C. Mlynarczyk.
JOHN A. MASTROPIETRO, CHAIRMAN. Respondents ABB Combustion Engineering Services, Incorporated, Broadspire/CNA, and Gallagher Bassett Services, Inc., have petitioned for review from the December 23, 2009 Finding and Order of the Commissioner acting for the First District. Claimant has also filed a cross-appeal from the December 23, 2009 Finding and Order. We affirm the ultimate decision reached by the trial commissioner and discuss the other issues raised in the appeal.1
The trial commissioner made the following factual findings which are pertinent to our review of this matter. The claimant, Virginia Greenberg, who is seeking survivor’s benefits pursuant to § 31-306 C.G.S., is the surviving spouse of Avrom Greenberg, a former employee of ABB Combustion Engineering Services.2 Mr. Greenberg passed away from pancreatic cancer on February 20, 2001, after having been diagnosed with the disease on February 10, 2000. The claimant is seeking benefits on the basis that her husband died from an occupational disease as defined by § 31-275(15) C.G.S.3 Claimant’s counsel filed an initial notice of claim (“Form 30C”) on November 7, 2001, eleven (11) months after Mr. Greenberg’s death.4 The Form 30C named Avrom Greenberg as the claimant and described the injury as “employment exposure to radiation and other chemicals resulting in death.” Claimant’s Exhibit A. Virginia Greenberg’s name did not appear on the Form 30C and the form did not specifically identify that survivor’s benefits were being sought. Respondents ABB Combustion Engineering and Gallagher Bassett Services, Inc., filed a timely disclaimer (“Form 43”) on November 30, 2001 and again on December 4, 2001.5 Claimant’s Exhibit C and Administrative Notice.
Respondents ABB Combustion Engineering and RSKCo [now Broadspire/CNA] filed a Form 43 on April 22, 2003, following discussions at an informal hearing held on April 3, 2003, regarding Mrs. Greenberg’s claim. Claimant’s Exhibit D, Administrative Notice. The claimant filed a second notice of claim on August 28, 2003, two-and-one-half years after the date of Mr. Greenberg’s death. Claimant’s Exhibit B. The second Form 30C differed from the first notice only in that Virginia Greenberg’s name was typed below the signature line. Claimant’s counsel signed both notices. Respondents ABB Combustion Engineering and Travelers Property & Casualty filed a Form 43 on September 15, 2003.
Daniel Greenberg, Virginia and Avrom Greenberg’s son, testified at trial that his mother had requested him to handle the medical issues associated with his father’s final illness. He also testified that his mother requested that he manage all aspects of the Connecticut workers’ compensation claim as well as the federal claim filed with the Department of Labor pursuant to the Energy Employees Occupational Illness Compensation Program (EEOICPA) codified at 42 U.S.C. § 7384 et seq. The application for benefits under this program was filed in two parts in September and December of 2001 and included some 1600 pages of documents. The Final Decision issued by the Department of Labor awarded Virginia Greenberg $150,000.00 in benefits based on the following considerations: 1) Avrom Greenberg worked at ABB Combustion Engineering for more than 250 days; 2) he died from pancreatic cancer, which was a “specified cancer” and he was a “covered employee with cancer” as defined by the EEOICPA statute; and 3) the federal government had designated employees of ABB Combustion Engineering as members of a “Special Exposure Cohort.” The EEOICPA award letter did not indicate that a medical review had occurred.
Daniel Greenberg testified that he met with Attorney Louis George in October 2001, and retained him to look into filing a Connecticut workers’ compensation claim. He testified that he had also met with two other attorneys prior to meeting with Attorney George but could not recall the dates of those meetings. Daniel Greenberg stated that at the time of his father’s diagnosis and death, there was no speculation regarding a possible connection between his father’s employment at Combustion Engineering and his pancreatic cancer. Rather, the idea to investigate such a connection occurred to him after he met with Attorney Shafner prior to retaining Attorney George. Daniel Greenberg denied that he had any idea or knowledge that his father’s cancer was caused by his employment at Combustion Engineering until he received the report written by Michael Grey, M.D., dated September 15, 2003. Daniel Greenberg also indicated that he never spoke directly with Dr. Grey prior to the issuance of the September 15, 2003 report and any information Dr. Grey obtained would have been generated by Attorney George.
The trial commissioner determined, based on the foregoing, that the Form 30C filed by claimant’s counsel on November 7, 2001, was sufficient to place the respondents on notice that Virginia Greenberg was filing a claim for survivor’s benefits. The trial commissioner observed that “[i]n light of the subsequent timely Form 43, the Respondent had reasonable notice that survivor’s benefits would be claimed, and a reasonable opportunity to investigate the claim.” Findings, ¶ B. The trial commissioner also found that because the November 7, 2001 notice of claim was filed prior to the one-year anniversary of Mr. Greenberg’s date of death, the claim was timely. However, the trial commissioner, noting that she did not find Daniel Greenberg credible or persuasive relative “to the time or date at which he first believed his father’s cancer was caused by toxic workplace exposure,” determined that the second Form 30C filed on August 28, 2003 was not timely. Findings, ¶ C. The trial commissioner also did “not find it credible or persuasive that Daniel Greenberg and, by extension, Virginia Greenberg, had not formed a belief as to the cause of Avrom Greenberg’s pancreatic cancer, at the latest, by September 1, 2001.” Findings, ¶ D.
Respondents ABB Combustion Engineering and Broadspire/CNA (“ABB/CNA”) filed a Motion to Correct, which was denied in its entirety. Claimant filed a Motion to Correct which was denied in its entirety; claimant also filed a three-count Objection to the Respondents’ Motion to Correct of which two counts were sustained in their entirety and the third in part.
On appeal, respondents ABB/CNA argue that Virginia Greenberg’s claim was not timely filed in accordance with the provisions of § 31-294c(a) C.G.S. and, as such, the trier’s failure to dismiss the claim for lack of subject matter jurisdiction constituted error.6 Respondents ABB/CNA also claim as error the trial commissioner’s determination that the notice of claim filed on November 7, 2001, was sufficient to place the respondents on notice that Virginia Greenberg was claiming survivors’ benefits. In addition, respondents ABB/CNA challenge the trial commissioner’s conclusion that the Form 43 filed by Travelers Property & Casualty in response to the Form 30C documented that respondents had been given “reasonable notice that survivor benefits would be claimed and a reasonable opportunity to investigate the claim.” Appellants’ Brief [ABB/CNA], p. 18. Finally, respondents ABB/CNA argue that the trier erred in failing to grant their Motion to Correct.
In their separate appellate documents, respondents ABB Combustion Engineering and Gallagher Bassett Services (“ABB/GBS”) contend that the trier’s reliance on Berry v. State/Dept. of Public Safety, 5162 CRB-3-06-11 (December 20, 2007) in assessing the sufficiency of the claimant’s Form 30C of November 7, 2001 constituted error. Respondents ABB/GBS also argue that the trier erroneously identified the Notice of Claim filed on November 7, 2001 “as Virginia Greenberg’s Form 30C.” Appellants’ Brief [ABB/GBS], p. 4. Respondents ABB/GBS aver that because the notice of claim did not specifically identify Virginia Greenberg as the individual on whose behalf benefits were being claimed, the Workers’ Compensation Commission was effectively denied jurisdiction over the claim. Finally, respondents ABB/GBS argue that Virginia Greenberg’s failure to file a timely notice of claim in her own right constituted a “fatal defect.” Id., at 5.
The claimant filed a cross-appeal claiming as error the finding by the trial commissioner that the Form 30C filed on August 28, 2003 was not timely. The claimant contends that the trial commissioner erred in concluding that the assessment of whether the August 28, 2003 Form 30C was timely filed was dependent upon when Daniel and/or Virginia Greenberg first “believed” that Avrom Greenberg’s pancreatic cancer was caused by toxic workplace exposure. Cross-Appellant Brief, p. 18. The claimant also claims as error the trial commissioner’s conclusion that Daniel and/or Virginia Greenberg “had formed a belief as to the cause of Avrom Greenberg’s pancreatic cancer, sufficient to trigger the notice statute C.G.S. § 31-294c, prior to September 1, 2001.” Id., at 1. Finally, the claimant avers that the trial commissioner’s failure to grant the claimant’s Motion to Correct constituted error.
As a preliminary matter, we set forth the well-settled standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions. “The trial commissioner’s factual findings and conclusions must stand unless they are without evidence, contrary to law or based on unreasonable or impermissible factual inferences.” Russo v. Hartford, 4769 CRB-1-04-1 (December 15, 2004), citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Moreover, “[a]s with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Burton v. Mottolese, 267 Conn. 1, 54 (2003). “This presumption, however, can be challenged by the argument that the trial commissioner did not properly apply the law or has reached a finding of fact inconsistent with the evidence presented at the formal hearing.” Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007).
We begin our analysis with the respondents’ claims of error relative to the timeliness of the Form 30C filed by Virginia Greenberg on November 7, 2001. Respondents ABB/CNA assert that because Virginia Greenberg failed to file a notice of claim for compensation in her own right within one year of her husband’s date of death, her claim is untimely pursuant to the provisions of § 31-294c(a) C.G.S. In addition, “[t]he respondents contend that the November 7, 2001 notice of claim for compensation provided no information to the respondents which would advise them that a widow’s claim was being filed and therefore did not constitute a notice of claim for compensation on behalf of Virginia Greenberg.” Appellants’ Brief [ABB/CNA], p. 7. For their part, respondents ABB/GBS assert that because Virginia Greenberg did not file a notice of claim in her own right until August 28, 2003, which notice was deemed untimely by the trial commissioner, “Virginia Greenberg cannot rely on the claim filed on behalf of her deceased husband to satisfy the jurisdictional notice requirements of Section 31-294c of the Connecticut General Statutes.” Appellants’ Brief [ABB/GBS], p. 6.
We do not dispute the respondents’ assertion that Virginia Greenberg was indeed required to file her own claim for benefits. “While an injured worker’s claim and his dependent’s claim invariably arise out of the same compensable injury, this fact cannot obscure the notion that ‘[t]he classes of compensation awarded an employee and his dependents are separate and independent of each other.’” Sellew v. Northeast Utilities, 12 Conn. Workers’ Comp. Rev. Op. 135, 1422 CRB-8-92-5 (April 7, 1994), dismissed for lack of final judgment, A.C. 13541, 13542 (June 14, 1995), quoting Biederzycki v. Farrel Foundry & Machine Co., 103 Conn. 701, 704 (1926). See also Tardy v. Abington Constructors, Inc., 71 Conn. App. 140, 144 (2002) (“statutory scheme requires a dependent filing for a death benefit to file a separate claim”). Moreover, in Fredette v. Connecticut Air National Guard, 283 Conn. 813 (2007), our Supreme Court remarked:
[a]lthough the availability of dependents’ benefits under § 31-306 ‘is inextricably linked to, and wholly dependent upon, the existence of a compensable injury or illness suffered by the employee,’ it is not dependent upon the filing of a claim by the employee, but rather by the filing of any vested claim under the act within the applicable limitations period of § 31-294c(a). (Internal citations omitted.)
Id., at 838, quoting Duni v. UTC/Pratt & Whitney, 239 Conn. 19, 25 (1996).
As such, “the failure to file any compensable claim within the applicable limitations period would have the effect of barring all claims under the act, irrespective of whether they yet had become compensable.” Fredette, supra, at 824.
Turning to the instant notice of claim filed on November 7, 2001, our examination reveals at the outset that the injury claimed on the Form 30C is occupational illness. Claimant’s Exhibit A. Therefore, an assessment of the timeliness of the notice necessarily implicates the provision of § 31-294c(a) C.G.S. pertaining to occupational disease: i.e., the requirement that a notice of claim must be filed “within three years from the first manifestation of a symptom of the occupational disease.” § 31-294c(a) C.G.S. The one-year notice period governing claims of accidental injury and/or repetitive trauma is not applicable to this matter; rather, our inquiry is more properly directed to a determination of when the “first manifestation of a symptom of the occupational disease” occurred. Section § 31-294c(a) C.G.S. defines “manifestation of a symptom” as “manifestation to an employee claiming compensation, or to some other person standing in such relation to him that the knowledge of the person would be imputed to him, in a manner that is or should be recognized by him as symptomatic of the occupational disease for which compensation is claimed.” Id.
In Ricigliano v. Ideal Forging Corp., 280 Conn. 723 (2006), our Supreme Court discussed in some depth the basis for determining when a “first manifestation” may be deemed to have occurred, or, more specifically, “when the limitations period under General Statutes § 31-294c(a) commences for filing a workers’ compensation claim for occupational disease if a claimant is diagnosed with a disease but has no knowledge of the causal connection between the disease and workplace exposure until some later point in time.” Id., at 724-725. In its review of prior case law interpreting the phrase “first manifestation,” the court noted that in Bremner v. Eidlitz & Son, Inc., 118 Conn. 666 (1934), it had stated:
an employee cannot close his understanding to that which is clear and plain, and if the circumstances are such that a reasonable man would clearly recognize the existence of a symptom of an occupational disease, it must be regarded as manifest in the sense of the statute; for in the law it is usually so that what a man ought to know he is conclusively deemed to know.... The other implication arising out of the phrase in question is that there must be a clear recognition of the symptom as being that of the occupational disease in question; however plain is the presence of the symptom itself, unless its relation to the particular disease also clearly appears, there cannot be said to be a manifestation of a symptom of that disease. (Internal citations omitted.)
Ricigliano, supra, at 734, quoting Bremner, supra, at 670.
The Bremner court further observed,
[c]ertainly, we cannot impute to the legislature an intent to make the right of a particular employee to compensation depend upon the adventitious knowledge of others, perhaps strangers to him, or the knowledge of a physician who deems it his duty in the interest of his patient to conceal the actual fact from him, or the knowledge of one the interest of whose employer may well tempt him to keep silent as to the true fact.
Bremner, supra, at 671.
[t]he legislature must have intended that the manifestation should be to the employee or someone standing in such a relation to him that the knowledge of such a person would be imputed to him, and be such as is or ought to be recognized by him as symptomatic of an occupational disease.
Id., at 671-672.
Noting that the legislature essentially adopted this definition of “manifestation of a symptom” when it amended the statute of limitations in the year following the Bremner decision and had taken no action to change it since that time, the Ricigliano court pointed out that “[t]he legislature’s inaction in the face of Bremner and its progeny interpreting § 31-294 as requiring that the claimant have actual or constructive knowledge of a causal connection between his symptoms and the work-relatedness of his condition strongly suggests the legislature’s acquiescence in this interpretation.” Id., at 740. In fact,
[t]he legislature clearly has manifested an intent to compensate employees for disability arising from occupational diseases. It would be illogical, then, in order to preserve his statutory right to compensation for an occupational disease, to require an employee to file a claim at a time when the employee has no rational basis to believe that there is a causal connection between his employment and his disease or symptoms thereof.
The Ricigliano court also remarked that,
[t]o the extent that delays in filing occupational disease claims due to a lack of knowledge of the causal connection to employment may give rise to prejudice, employees are more likely than employers to be harmed by such delays, as employees bear the burden of proving that their disease is in fact an occupational disease.
Id., at 743.
As such, the court went on to hold that “the fact that an occupational disease cannot be qualified as such until a causal connection can be established compels the conclusion that such a connection is a prerequisite to the commencement of the statute of limitations for making a claim for an occupational disease.” Id., at 744-745. In Ricigliano, the claimant was diagnosed with multiple myeloma “[s]ometime between September, 1996, and November 22, 1996.” Id., at 726. However, the court concluded that the claimant’s notice of claim dated August 15, 2002, was timely because it was predicated on a July 8, 2002 medical opinion in which the physician stated “that the claimant’s exposure to petroleum products and hydrocarbon fuels at his workplace was ‘the causative factor in his current condition of multiple myeloma.’” Id.
Our Supreme Court expanded upon its analysis of the appropriate notice period in occupational disease claims in Fredette v. Connecticut Air National Guard, 283 Conn. 813 (2007). In Fredette, the court identified as the principal issue:
whether a dependent has filed a timely claim for benefits when the employee, who had not made a claim for occupational disease benefits during his life, died more than two years after the first manifestation of his occupational disease, and the dependent filed a claim within three years from that first manifestation.
Id., at 815-816.
More specifically, the court was called upon to interpret the meaning of the “proviso” in § 31-294c(a) C.G.S. which states: “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.” Section 31-294c(a) C.G.S. (Rev. to 2001). The Fredette respondents contended that this proviso essentially constituted a limitation on dependents’ claims such that, “in the absence of a timely filed claim of the decedent within his lifetime, the death of the decedent within two years of the first manifestation of a symptom of the occupational disease is a condition precedent to a dependent’s claim.” Id., at 819. Alternatively, the Fredette claimant argued that the proviso “intended to create a modified limitations period for dependents’ claims in only those cases in which the decedent never filed a claim in his own right but died within two years from the first manifestation of the disease.” (Emphasis in the original.) Id., at 818.
Following a lengthy analysis of the genealogy of the statute and the case law construing the pertinent provisions, the court ultimately concurred with the interpretation of the claimant. Noting that “§ 31-294c(a) requires, not that claims under the act be brought in any particular order, but rather that a compensable claim be filed within the applicable limitations period, irrespective of whether that initial claim is filed by the employee, the employee’s estate after his death, or the decedent employee’s dependents,” id., at 824-825, the court “conclude[d] that the legislature introduced the proviso, not as a condition precedent for the commencement of dependents’ claims, but rather to articulate a modified – at the time, extended – limitations period for the commencement of such claims.”7 Id., at 828. Moreover, “[t]his change ensured that no compensable dependent’s claim would become untimely solely by virtue of the employee’s failure, before his death, to satisfy the one year limitations period.”8 Id., at 829. However, the court also observed “that the proviso of § 31-294c(a) neither operates as a condition precedent to dependents’ claims nor applies its modified limitations period to cases ... in which the employee dies more than two years after the first manifestation of a symptom of the occupational disease .....” (Emphasis in the original.) Id., at 836.
Turning to the matter at bar, we note that the parties stipulated, and the trier so found, that the claimant was diagnosed with pancreatic cancer on February 10, 2000 and died on February 20, 2001 from the cancer. Findings, ¶¶ 2, 3. The trial commissioner concluded that the Form 30C filed on November 7, 2001 was “filed prior to one year from the Decedent’s date of death and was, therefore, timely.” Findings, ¶ A. The trial commissioner also found that the claimant’s son, Daniel, had “testified that there was absolutely no knowledge, or even speculation at the time of [his father’s] diagnosis and death, of a workplace relationship,” Findings, ¶ 23, and that he “denied having any idea or knowledge of his father’s cancer having been caused by his work at Combusion Engineering until he read a report from Dr. Gray [sic] dated September 15, 2003.” Findings, ¶ 27. However, the trier concluded that Daniel Greenberg was “neither credible nor persuasive as to the time or date at which he first believed his father’s cancer was caused by toxic workplace exposure,” Findings, ¶ C, and, furthermore, that it was not “credible or persuasive that Daniel Greenberg and by extension, Virginia Greenberg, had not formed a belief as to the cause of Avrom Greenberg’s pancreatic cancer, at the latest, by September 1, 2001.” Findings, ¶ D.
Based on the foregoing, we find that it may be reasonably inferred that the trier determined that the requisite statutory “first manifestation of a symptom of the occupational disease” occurred by the time Daniel Greenberg filed the first part of the application for federal benefits pursuant to EEOICPA on September 2, 2001.9 The trier found that Greenberg submitted some 1600 pages of documents which Greenberg testified were the product of “extensive” research and at least one Freedom of Information Act request. Findings, ¶ 18. See also June 11, 2009 Transcript, p. 44. We note that Greenberg testified that at the time of the filing of the federal application, he did not yet possess any medical documentation linking his father’s illness to the workplace. Id., at 26. We also note that Greenberg was unable, during cross-examination, to provide the exact date on which he first learned of “a potential relationship between [his] father’s work at Combustion Engineering and the development of pancreatic cancer.” Id., at 36-37. However, in response to a direct inquiry by the trial commissioner, Greenberg stated that by the time of the filing of the federal application, he did believe that his father’s pancreatic cancer had been caused by workplace exposure.10 Id., at 63. Thus, while we concede that the trier did not articulate precisely the relevant legal standard, we do not feel that her use of the construction “formed a belief” is so far afield from the Ricigliano court’s observation that a claimant must have a “rational basis to believe that there is a causal connection between his employment and his disease or symptoms thereof” as to render her finding erroneous in this regard. Ricigliano, supra, at 740.
We recognize that by adopting September 1, 2001, as the date of first manifestation we are rejecting the claimant’s argument that the first manifestation actually occurred upon receipt of the September 15, 2003 report of Michael Grey, M.D. While we agree that such an inference does find some support in Ricigliano, given that the court traced the establishment of a causal connection to a medical report, we note that in the instant matter, the trier found that by the time the medical report was issued on September 15, 2003, Daniel Greenberg had met with three workers’ compensation attorneys, submitted an application for federal EEOICPA benefits accompanied by 1600 pages of documentation, filed one Form 30C on November 7, 2001, and filed a second Form 30C on August 28, 2003.11 Thus, while we recognize that the trier might have reasonably inferred that September 15, 2003, represented a legally viable date of first manifestation, she also retained the discretion, based on her review of the evidence before her, to select September 1, 2001, as the date of first manifestation.12 “It is ... immaterial that the facts permit the drawing of diverse inferences. The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court.” Fair v. People’s Savings Bank, 207 Conn. 535, 540 (1988), quoting Del Vecchio v. Bowers, 296 U.S. 280, 287 (1935).
Moreover, we note that the Ricigliano court, in reviewing the legislative history of § 31-294c C.G.S., discussed a bill proposed during the 1980 legislative session which “would have substituted, inter alia, ‘date of documented discovery that the disease is an occupational disease’ for the phrase at issue in this case, ‘first manifestation of a symptom of the occupational disease.’” Ricigliano, supra, at 741. Noting that the bill “was not favorably reported out of committee and that the legislature instead amended the statute to extend the limitations period to three years from the first manifestation of a symptom,” id., the court remarked that because “the proposed bill would have defined ‘date of documented discovery’ to require that the claimant receive this documentation from a licensed physician,” id., at 743, such a change in the law “significantly would have broadened the standard that we have articulated since Bremner because it would have eliminated constructive knowledge as well as knowledge from sources other than a licensed physician.”13 Id. As such, we affirm the trier’s selection of September 1, 2001, as the appropriate date of demarcation as to when it could be reasonably inferred that the claimant had “constructive knowledge” of the “first manifestation of a symptom of the occupational disease” and reject the claimant’s assertion that September 15, 2003, represented said date. In accordance with this determination, we therefore affirm the trial commissioner’s finding that the first Form 30C filed on November 7, 2001 was timely and reverse the trier’s finding that the second Form 30C filed on August 28, 2003, was untimely as both Form 30C’s were filed within three years of September 1, 2001.14
Having ascertained that the first manifestation of a symptom of the occupational disease did not occur until six months after the claimant’s decedent’s death on February 20, 2001, it therefore follows that the Supreme Court’s analysis regarding the “proviso” of § 31-294c(a) C.G.S. in Fredette, supra, is inapplicable to the case at bar. As discussed previously herein, the invocation of this proviso requires as a condition precedent that “death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease....” Section 31-294c(a) C.G.S. (Rev. to 2001). We reject the argument propounded by respondents ABB/CNA that the Fredette proviso applies because the claimant died on February 20, 2001, and the first manifestation, which arguably occurred prior to September 1, 2001, therefore fell “within” the twoyear window contemplated by the Fredette court. In light of our review of the applicable case law, we are simply not persuaded that the totality of the conditional proviso language contained in the statute – i.e., “in cases in which the decedent dies within two years from that first manifestation” – contemplated a retrospective application of the proviso to situations in which the claimant dies prior to the first legal manifestation of a symptom of the occupational disease. (Emphasis ours.) Section 31-294c(a) C.G.S. (Rev. to 2001). This is particularly so if one accepts the Fredette court’s observation that “the legislature originally crafted the proviso of § 31-294c(a) as an expansion of the underlying one year limitations period for cases in which the employee had, during his lifetime, failed to satisfy the underlying statute of limitations but still had died relatively ‘swiftly;’ ... namely, within two years of the injury.” (Internal citations omitted.) Fredette, supra, at 834.
We find similarly unpersuasive the argument propounded by respondents’ ABB/CNA that either footnote 12 or footnote 18 of the Fredette decision have any bearing on the matter at bar.15 In footnote 12, the court is merely giving voice to its recognition that there would need to be some time limitation on the filing of a separate claim by dependents or legal representative following the death of a decedent who had filed a timely claim during his lifetime but declining to decide the question.16 Respondents’ reliance on footnote 18 is similarly unavailing, because the Fredette court is again positing an alternative fact pattern – how long a dependent would have to file a claim following the death of a decedent who had filed a claim within the three-year limitation period – and again declining to decide the question. While the Supreme Court’s considerations are always entitled to great deference, we do not find that either of the Fredette footnotes cited by respondents ABB/CNA sheds much light on our analysis of the fact pattern presently before us.
Having determined that both the Form 30C filed on November 7, 2001, and the Form 30C filed on August 28, 2003, were timely, we turn next to an analysis of the sufficiency of these notices of claim. Respondents ABB/CNA “contend that the November 7, 2001 notice of claim for compensation provided no information to the respondents which would advise them that a widow’s claim was being filed and therefore did not constitute a notice of claim for compensation on behalf of Virginia Greenberg.” Appellants’ Brief [ABB/CNA], p. 7. For their part, respondents ABB/GBS assert that the trial commissioner’s reliance on Berry v. State/Dept. of Public Safety, 5162 CRB-3-06-11 (December 20, 2007) constituted error. We are not so persuaded, and in fact find our prior decision in Berry to be dispositive of the respondents’ arguments relative to the sufficiency of both notices of claim filed in this matter.
In Berry, the claimant appealed the trial commissioner’s dismissal of her claim for survivorship benefits predicated on a Form 30C that failed to identify the dependent widow by name or indicate that she was seeking survivorship benefits. The respondent “challenged subject matter jurisdiction for this claim asserting the notice was irredeemably defective, based on the holding of Kuehl v. Z-Loda Systems Engineering, 265 Conn. 525 (2003).” In its analysis, the board at the outset distinguished Berry from Kuehl noting that in Kuehl, the widow did not file a notice for § 31-306 C.G.S. benefits or request a hearing for survivor benefits until some six years after her husband’s death. The Kuehl court held that the claimant’s furnishing to the employer an amended complaint in a related thirdparty action was “insufficient to establish that Z-Loda Systems had actual notice of the plaintiff’s intent to seek survivor’s benefits.” Id., at 536. The court “also [rejected] the plaintiff’s contention that, because she was managing ZLoda Systems at the time of the decedent’s death, her purported intent to seek survivor’s benefits should be imputed to Z-Loda Systems.” Id. Finally, the court disagreed with the claimant’s contention “that the savings provisions of subsection (c) of § 31-294c evince a legislative intent to permit claims in circumstances such as those in the present case,” id., at 537, instead remarking that the “savings provision addresses a ‘defect or inaccuracy’ in a notice of claim for compensation; it does not excuse, however, the failure to file a notice of claim.” (Emphasis in the original). Id. The Kuehl court affirmed this board’s dismissal of the claim, remarking, “[i]n the absence of a compelling or overriding reason to do so, we cannot ignore the requirement of written notice contained in § 31-294c (a).” (Emphasis in the original). Id.
Having distinguished Berry from Kuehl on its facts, this board, in Berry, then assessed the applicability of the “totality of circumstances” test as referenced in Hayden-Leblanc v. New London Broadcasting, 12 Conn. Workers’ Comp. Rev. Op. 3, 1373 CRD-2-92-1 (January 5, 1994). In Hayden, we stated: “[t]he purpose of § 31-294 ... is to alert the employer to the fact that a person has sustained an injury that may be compensable ... and that such person is claiming or proposes to claim compensation under the Act.” (Citations omitted; internal quotation marks omitted.) Id., at 4, quoting Black v. London & Egazarian, 30 Conn. App. 295, 303 (1993), cert. denied, 225 Conn. 916 (1993). We noted that “[w]hile compliance with the limitation period set forth in § 31-294 is jurisdictional in nature ...; substantial compliance with the notice content requirements set forth in § 31-294 sufficient to fulfill the purpose of the statute will toll the running of the statutory period.” (Internal citations omitted.) Id., at 4. We then concluded that “the notice need not be drafted with ‘absolute precision,’” id., at 5, quoting Black, supra, and “a written notice of claim lacking one or more of the elements set forth in § 31-294 may be sufficient to meet the time limitations requirement of that statute....” Fuller v. Central Paving Company, 5 Conn. Workers’ Comp. Rev. Op. 92, 94, 665 CRD-7-87 (April 6, 1988).
This board next reviewed our Appellate Court’s reasoning in Tardy, supra, wherein the defendants, subject to a motion to preclude, challenged the sufficiency of a widow’s notice of claim which reported the place of injury rather than the place of the decedent’s death and indicated as one of the two claimants the name of the decedent rather than the decedent’s estate. The court, unpersuaded by the defendants’ assertion that the information provided was “‘enough to prevent or hinder a timely investigation of the claim by the [defendants]’ to determine whether to file a notice to contest,” id., at 149, remarked that because “workers’ compensation is remedial legislation with a humanitarian purpose, we liberally construe its provisions in favor of the employee,” id., and, as such, “strict compliance with a notice of claim is not required as long as it puts the employer on notice to make a timely investigation.” Id., at 150. See also Pereira v. State/Dept. of Children & Youth Services, 228 Conn. 535, fn. 8 (1994).
In light of the foregoing, this board, in Berry, reversed the trier’s dismissal of the claim, concluding that “our reading of the Kuehl and Tardy cases is that there must be either a complete absence of notice to warrant dismissal of a claim or granting preclusion; or notice which was so fundamentally deficient as to prejudice the other party.” Id. We deemed such a reading “consistent with the plain language of § 31-294c(c) C.G.S. [which states that] ‘[n]o defect or inaccuracy of notice of claim shall bar maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning the personal injury and was prejudiced by the defect or inaccuracy of the notice.’” Berry, supra. We also noted that “we find the notice filed in this case substantially similar to the notice for § 31-306 C.G.S. benefits we deemed sufficient in Tardy (lacking only the name of the claimant) and are not persuaded that the law on this issue has been materially changed in the past five years.”17 Id.
Turning our analysis to the notices of claim filed in the instant matter, we note at the outset the similarities between the notice of claim filed on November 7, 2001 and that filed by the Tardy and Berry claimants. All three notices identified that workers’ compensation benefits were being sought in the name of the claimants’ decedents and, more significant, all three notices clearly indicated that the claimants’ former spouses were deceased. As such, we find apropos our observation in Berry that “[a] reasonable conclusion from reading this 30C form is that relief would be sought under § 31-306 C.G.S; if for no other reason than Trooper Berry was no longer alive to receive the other forms of relief available under Chapter 568, such as temporary total or permanent partial disability benefits.” Id. Moreover, all three claimants were required to utilize the Form 30C, which does not provide a designation for dependents filing on behalf of a deceased employee, because the Form 30D, which is specifically intended for use by dependents of a deceased employee, was not introduced until September 24, 2007. Nevertheless, the Form 30C filed on November 7, 2001, was obviously sufficient to place the respondents on notice that death benefits of some sort were being sought given that Travelers issued a Form 43 on November 28, 2001, clearly indicating that the respondents ABB/Travelers were aware that the employee was deceased.18 See Claimant’s Exhibit C. Consistent with this reasoning, we also find that the second Form 30C filed in the instant matter on August 28, 2003, which was the same in all respects as the Form 30C filed on November 7, 2001 save for the typed addition of Virginia Greenberg’s name under the “signature” line, was likewise sufficient to place the respondents on notice that death benefits were being sought.19 See Claimant’s Exhibit B.
The record also reveals that an informal hearing was held in this matter on April 3, 2003, at which Virginia Greenberg’s claim for benefits was discussed, which hearing evidently prompted the filing of a second Form 43 by ABB/RSKCo [now Broadspire/CNA]. See Claimant’s Exhibits D, F. Section 31-294c(c) C.G.S. provides that:
[f]ailure to provide a notice of claim under subsection (a) of this section shall not bar maintenance of the proceedings if there has been a hearing or a written request for a hearing or an assignment for a hearing within a one-year period from the date of the accident or within a three-year period from the first manifestation of a symptom of the occupational disease, as the case may be....
Section 31-294c(c) C.G.S. (Rev. to 2001).
“This exception is based upon the fact that, if a hearing has been held, then the employer knows that an injury has been suffered that may be the basis of such a claim.” Fredette, supra, at 835. Moreover,
[t]he notice to the employer serves the purpose of informing him of the condition with which he is confronted, and the hearing is intended to further fix and make certain that condition as regards his liability, if any. The hearing presents a complete opportunity fully to develop the situation as regards the nature, extent and compensability of the injury, and incidentally to ascertain all possible dependents, present and prospective. It is difficult to conceive an employer having so little comprehension of a law by which he is bound, and the provisions of which he is presumed to know, or so ill advised professionally, as not to be aware that not only is there a dependent first compensable in any given case, but that the law also provides for other dependents in order after the one first preferred.
Tolli v. Connecticut Quarries Co., 101 Conn. 109, 116 (1924).
Having determined previously herein that the date of first manifestation occurred on or about September 1, 2001, we find that the informal hearing of April 3, 2003 falls within the three-year window contemplated by the “savings provision” of § 31-294c(c) C.G.S. and, as such, provided the respondents with constructive notice of the claim, in addition to the actual notice provided by the Form 30C of November 7, 2001. We also note that the respondents have failed to establish that they were in any way prejudiced by the purported deficiencies of the November 7, 2001 Form 30C. As the claimant points out,
[d]espite being given the opportunity at the Formal Hearing on June 11, 2009, Combustion Engineering produced no evidence indicating that the failure of that notice of claim to state that Virginia Greenberg was the party making the claim has affected the way in which Combustion Engineering has defended this claim. The Respondent elected to simply cross examine Dan Greenberg while putting on no witnesses of its own.
Appellee’s Brief, p. 16.
Both the claimant and respondents ABB/CNA filed Motions to Correct in this matter which were denied in their entirety. Our review of the motion filed by respondents ABB/CNA indicates that the respondents are merely reiterating the arguments made at trial which ultimately approved unavailing. We therefore find no error in the trier’s decision to deny the Motion to Correct. D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). As for the claimant’s Motion to Correct, insofar as the trier’s denial of the proposed corrections was inconsistent with the conclusions reached herein, the denial constituted error.
Having determined that both the Form 30C filed on November 7, 2001, and the Form 30C filed on August 28, 2003, constituted timely and sufficient notice pursuant to the provisions of § 31-294c(a) C.G.S., we affirm the trier’s ultimate conclusion that the Workers’ Compensation Commission retained subject matter jurisdiction over the claim. We would therefore anticipate additional proceedings consistent with this opinion.
Commissioners Amado J. Vargas and Peter C. Mlynarczyk concur in this opinion.
1 We note that a motion for a continuance was granted during the pendency of this appeal. BACK TO TEXT
2 Section 31-306 C.G.S. (Rev. to 2001) states, in pertinent part: (a) Compensation shall be paid to dependents on account of death resulting from an accident arising out of and in the course of employment or from an occupational disease as follows:
(1) Four thousand dollars shall be paid for burial expenses in any case in which the employee died on or after October 1, 1988. If there is no one wholly or partially dependent upon the deceased employee, the burial expenses of four thousand dollars shall be paid to the person who assumes the responsibility of paying the funeral expenses.
(2) To those wholly dependent upon the deceased employee at the date of his injury, a weekly compensation equal to seventy-five per cent of the average weekly earnings of the deceased calculated pursuant to section 31-310 ... as of the date of the injury but not more than the maximum weekly compensation rate set forth in section 31-309 for the year in which the injury occurred or less than twenty dollars weekly. BACK TO TEXT
3 Section 31-275 (15) C.G.S. (Rev. to 2001) 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, and includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee in the course of his employment.” Our Supreme Court further elucidated this concept in Estate of Doe v. Dept. of Correction, 268 Conn. 753 (2004) wherein it remarked, “‘[i]n interpreting the phrase occupational disease, we have stated that the requirement that the disease be peculiar to the occupation and in excess of the ordinary hazards of employment, refers to those diseases in which there is a causal connection between the duties of the employment and the disease contracted by the employee. In other words, [the disease] need not be unique to the occupation of the employee or to the workplace; 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.’” (Internal quotation marks omitted.) Id., at 758, quoting Malchik v. Division of Criminal Justice, 266 Conn. 728, 734 (2003). BACK TO TEXT
4 Claimants generally utilize the “Form 30C” entitled, “Notice of Claim for Compensation.” BACK TO TEXT
5 Respondents generally utilize a “Form 43” entitled “Notice to Compensation Commissioner and Employee of Intention to Contest Employee’s Right to Compensation Benefits.” BACK TO TEXT
6 Section 31-294c(a) C.G.S. (Rev. to 2001) states, 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. Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, or the date of the first manifestation of a symptom of the occupational disease and the nature of the disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed.... As used in this section, “manifestation of a symptom” means manifestation to an employee claiming compensation, or to some other person standing in such relation to him that the knowledge of the person would be imputed to him, in a manner that is or should be recognized by him as symptomatic of the occupational disease for which compensation is claimed.” BACK TO TEXT
7 It should be noted that at the time the proviso was enacted, the statute of limitations for filing an occupational disease claim was one year. “Then, in 1980, the legislature extended the underlying limitations period for occupational diseases – but not for accidents – from one to three years.” Fredette v. Connecticut Air National Guard, 283 Conn. 813, 832 (2007), citing Public Acts 1980, No. 80-124, § 5. BACK TO TEXT
8 The Fredette court also pointed out that “to construe the proviso to impose a condition precedent on dependents’ claims, of death within two years of the first manifestation of the disease, also would necessarily preclude such claims of the estate.” Fredette v. Connecticut Air National Guard, 283 Conn. 813, 835-836 (2007). Noting that § 52-599 C.G.S. states that “[a] cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person,” id., at 835, the court concluded that “[s]uch a construction of § 31 294c(a) would result in the destruction of a right of action of the employee by the death of that employee, presenting a conflict between §§ 31-294c(a) and 52-599.” Id., at 836. BACK TO TEXT
9 Our review of the federal EEOICPA application indicates that in his response to the inquiry entitled: “Describe all factor(s) believed to have contributed to the development of the claimed illness,” Greenberg provided a lengthy itemization of the environmental conditions at the plant and noted that “PPL” was “closed due to contamination.” Respondents’ Exhibit 1. BACK TO TEXT
10 The pertinent excerpt from the June 11, 2009 formal hearing transcript proceeded as follows:
Q: [The Commissioner] Hold on, Mr. Dodge. Mr. Dodge’s question could have been answered with either a yes or a no. Can you answer it with a yes or a no? His question, I believe was, at the time you submitted that application did you have, at least in your own mind, a strong belief that your father’s death had been caused by whatever he was exposed to at Combustion Engineering? Can you answer that with a yes or no.
A: Okay. A belief, yes.
Transcript, p. 63. BACK TO TEXT
11 As such, while we concede the validity of the claimant’s statement that “[u]nder Ricigliano, starting the process of investigating a possible connection between pancreatic cancer and workplace exposure does not begin the running of the statute of limitations,” Cross-Appellant Brief, p. 14, we would respectfully submit that by September 1, 2001, Daniel Greenberg’s investigation had progressed well beyond the starting point. BACK TO TEXT
12 We note that at the formal hearing held in this matter on June 11, 2009, counsel for respondents ABB/CNA stated that “[i]n our view, the latest time for the date of manifestation of symptomatology in this case would be September of 2001.” Transcript, p. 15. BACK TO TEXT
13 See Raised Committee Bill No. 7, 1980 Sess., § 1. BACK TO TEXT
14 It should be noted that had the trier determined that September 15, 2003, did represent, as a matter of law, the date of the first manifestation of a symptom of the occupational disease, both of the Form 30C’s filed in this matter would still be timely. BACK TO TEXT
15 In their brief, respondents ABB/CNA seem to suggest that the Form 30C filed on November 7, 2001 was filed by Avrom Greenberg. Brief, p. 14. Given that Greenberg died on February 20, 2001, we are somewhat at a loss to comprehend how he could have filed the November 7, 2001 Form 30C. BACK TO TEXT
16 The only claim filed in Fredette v. Connecticut Air National Guard, 283 Conn. 813 (2007), was brought by the decedent’s widow. BACK TO TEXT
17 Respondents ABB/CNA assert that the board’s decision in Berry v. State/Dept. of Public Safety, 5162 CRB-3-06-11 (December 20, 2007) was inconsistent with our Supreme Court’s reasoning in Fredette v. Connecticut Air National Guard, 283 Conn. 813 (2007) “in that the Fredette decision mandates that a widow’s notice of claim for compensation be filed separate from a claim for compensation on the part of the employee ... whereas the Berry ruling found that a Form 30C filed solely under the name of the employee was sufficient for purposes of the widow claim as well.” Appellants’ Brief [ABB/CNA], p. 16. As discussed previously herein, the Fredette court, while recognizing, consistent with precedent, the necessity for the filing of a separate claim for survivor’s benefits, primarily focused its attention on the operation of the two-year proviso in § 31 294c(a) C.G.S. relative to the timing of a claim for survivor benefits. This proviso had nothing to do with the issues raised in Berry, which called for an analysis of the sufficiency of a dependent’s notice of claim which clearly indicated that the employee was deceased. Contrary to the assertions of respondents ABB/CNA, this board neither held nor implied “that a claim in [sic] behalf of the widow need not be filed”, Appellants’ Brief, at 17, and we strenuously reject the notion that we “missed” the issuance of Fredette or Berry is now “bad law” as a result of Fredette. Id., at 16, 17. BACK TO TEXT
18 In her Articulation dated January 20, 2010, the trial commissioner indicated that she had found significant the fact that on the Form 43 filed by Travelers on November 30, 2001, the insurance adjuster cited § 31-294c in its reasons for denial on its notice of contest. See Claimant’s Exhibit C. It appears that the trier drew the inference from the inclusion of this statutory reference that the respondents were thus aware that survivor benefits in particular were being sought by the claimant. We are inclined to agree with respondents ABB/CNA that the trier may have afforded the statutory citation itself more weight than was proper given that § 31-294c C.G.S. is the notice statute in general and is not geared specifically towards survivor benefits. Nevertheless, we find that the trier reasonably inferred that the entirety of the Form 43 in question clearly evinces awareness by the respondents that the benefits being sought were in the name of a deceased employee. BACK TO TEXT
19 Our holding on this issue is therefore dispositive of the claimant’s first issue on cross-appeal. BACK TO TEXT
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