Harrison v. General Dynamics Corporation Electric Boat Division

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

The respondent employer and National Employers Co. were represented by Booth Kelly, Esq., Murphy & Beane, Two Union Plaza, P. O. Box 590, New London, CT 06320

The respondent employer and the insurers INA/Aetna and Aetna Life & Casualty were represented by Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

The Second Injury Fund was not represented at oral argument. Notice sent to Ernie Walker, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

These Petitions for Review from the January 18, 1996 Finding and Award of Compensation by the Commissioner acting for the Eighth District were heard November 1, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. Both the claimant and the respondents have petitioned for review from the January 18, 1996 Finding and Award of Compensation by the Commissioner acting for the Eighth District. The respondents argue that the trier erred by awarding the claimant dependent death benefits of $440.34 per week, while the claimant filed an admittedly untimely cross-appeal challenging the trier’s order that the respondents receive credit for benefits paid under the Longshoremen’s and Harbor Workers’ Compensation Act. We affirm the trial commissioner’s decision on both appeals.

The claimant is the dependent widow of Norman Harrison, who was employed by Electric Boat from November 19, 1963 through December 20, 1988, except for hiatuses during the last six months of 1964 and the period between July 26, 1974 and March 29, 1976. The decedent died on February 25, 1992. The trier found that he died from lung disease—malignant mesothelioma—that was caused at least in part by asbestos exposure during his employment with Electric Boat. The decedent was also exposed to asbestos while working as a diesel mechanic in the U.S. Navy from 1944 to 1963. The trial commissioner cited a records review performed by Dr. Bigos, a New London pulmonary medicine specialist, who reported that the decedent’s death was due to mesothelioma directly related to asbestos exposure throughout his employment history. Dr. Gaensler, a Boston University physician, essentially concurred in this diagnosis. A co-worker of the decedent’s at Electric Boat, Charles Collins, also testified that the decedent was exposed to asbestos at Electric Boat.

Relying on this evidence, the trier awarded the decedent’s surviving widow $440.34 per week as compensation, based on the last 26 weeks worked by the decedent under his employment contract with Electric Boat. As the claimant was already receiving LHWCA benefits, the trier ruled that the respondents were entitled to credits and offsets based on these payments and from third party sums received. The respondents appealed from the trier’s decision within ten days after it was issued, as required by § 31-301(a) C.G.S. The claimant filed a cross-appeal on July 17, 1996, six months after the date notice of the trier’s decision was sent.

We will first address the untimely cross-appeal. Normally, once this board determines that a petition for review has been filed outside the ten-day statutory time limit of § 31-301(a), it lacks jurisdiction to consider any substantive claim. Kudlacz v. Lindberg Heat Treating Co., 49 Conn. App. 1, 4 (1998). In response to a motion to dismiss the cross-appeal, the claimant argues that she is entitled to raise the issue of the § 31-293 credit at any time because it implicates the subject matter jurisdiction of the trial commissioner. Specifically, she contends that the third-party actions were brought under the Products Liability Act, which barred liens, credits or offsets during the time it was in effect; as a consequence, she contends that the trier was without jurisdiction to order an offset against third party recoveries.

Whether or not the third party actions fell within § 52-572r and thus barred any offset was essentially a mixed question of fact and law for the trial commissioner. The only question we must ask at this stage is whether the trier had general subject matter jurisdiction to order an offset against an award under § 31-293. As noted by the respondents, there is little dispute in our law that a workers’ compensation commissioner has the power to order an offset under § 31-293 as part of his authority under § 31-278. See, e.g., Enquist v. General Datacom, 218 Conn. 19 (1991). Absent a timely appeal, we have no jurisdiction in this case to determine whether the exercise of that power in this particular case was appropriate. Thus, we dismiss the claimant’s cross-appeal.

With respect to the respondents’ appeal, the issue regarding the calculation of the decedent’s average weekly wage has been settled by our Supreme Court. In Green v. General Dynamics, 245 Conn. 66 (1998), the Court held that § 31-310c1 applies retroactively because it merely clarifies the law that existed before it took effect on October 1, 1990. Thus, the fact that the decedent voluntarily retired in 1988 does not prevent the claimant from collecting dependent death benefits according to the formula in § 31-310c, even though the decedent’s first manifestation of symptoms did not occur until 1991. See Jordan v. General Dynamics Corp./Electric Boat Division, 3206 CRB-8-95-11 (Aug. 18, 1998).

The respondents also argue that the evidence was insufficient to support a finding that the claimant was exposed to asbestos at Electric Boat, with the respondent insurer National Employers Co. focusing on exposure after September 1, 1980. It is an axiom of workers’ compensation law in Connecticut that the trial commissioner is the sole individual charged with determining the credibility of all medical and lay testimony and evidence, including evidence that is apparently uncontradicted. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997); Webb, supra, 70. There was no error in the commissioner’s reliance on the testimony of Dr. Bigos simply because he performed a records review rather than an actual examination. The type of hearsay discussed in Balkus v. Terry Steam Turbine Co., 167 Conn. 170 (1974), and Capen v. General Dynamics, 38 Conn. App. 73 (1995), is not at issue here. Dr. Bigos was given a description of the type of work the decedent performed during his employment at General Dynamics, and it supported a finding that asbestos exposure was significant until at least the mid-1970’s. See Claimant’s Exhibits D, L.

As for dates beyond August 31, 1980, Dr. Bigos’ statement that the decedent was exposed to asbestos through his retirement in 1988 is buttressed by the testimony of Charles Collins, who, contrary to the assertion of National Employers Co., the trial commissioner was entitled to believe. Collins testified that there was asbestos dust present in the area where the decedent was working, and that items containing asbestos fibers were stored on the decedent’s desk. Claimant’s Exhibit I. We cannot fault the trial commissioner for choosing to assign credibility to that testimony, and incorporating it into his decision. Thus, the assignment of initial liability for the payment of benefits to the respondent insurer National Employers Co. under § 31-299b is legally sound.

The trial commissioner’s decision is hereby affirmed.

Commissioners George A. Waldron and Robin L. Wilson concur.

1 Section 31-301c provides in relevant part that “in the case of an occupational disease which manifests itself at a time when the worker has not worked during the twenty-six weeks immediately preceding the diagnosis of such disease, the claimant’s average weekly wage shall be considered to be equivalent to the greater of (1) the average weekly wage determined pursuant to section 31-310 and adjusted pursuant to section 31-307a or (2) the average weekly wage earned by the claimant during the fifty-two calendar weeks last worked by the claimant, which wage shall be determined in accordance with said section 31-310 and adjusted pursuant to said section 31-307a.” BACK TO TEXT