Summary
affirming commissioner's decision concluding that statute of limitations began when claimant's physician concluded that claimant's lung disease was causally connected to his employment, not when earlier examination yielded physician's conclusion that he could not state categorically that disease was work-related absent additional information from employer
Summary of this case from Ricigliano v. Ideal Forging Corp.Opinion
CASE NO. 970 CRD-8-90-1
MAY 16, 1991
The claimant was represented by George H. Romania, Esq.
The respondent Hartford Insurance Company was represented by Richard Stabnick, Esq., and Jason Dodge, Esq., Pomeranz, Drayton Stabnick. The respondents Liberty Mutual Insurance Company was represented by Scott Wilson Williams, Esq., Maher Williams. The respondent CIGNA was represented by David Schoolcraft, Esq. of Trowbridge, Ide, Mansfield, Shaw.
This Petition for Review from the January 16, 1990 Finding and Award of the Commissioner for the Eighth District was heard October 26, 1990 before a Compensation Review division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew Denuzze and Michael S. Sherman.
OPINION
Respondents appeal the award of benefits for claimant's occupational disease. The trial commissioner found the first known manifestation of symptom of the occupational disease occurred in March, 1986. The appeal argues that the first manifestation of symptoms occurred in 1979 or early 1980, and as no claim was filed until March 18, 1986, the claim should be time barred by Sec. 31-294, C.G.S.
Claimant was employed by the respondent employer from May 19, 1947 until sometime in 1986 when he claimed to be totally disabled due to an occupationally related lung disease. The commissioner found that in December, 1979 a pre-surgical chest x-ray indicated an abnormality. The physical examination conducted by Dr. Richard Smith, a pulmonary specialist, included an occupational history and noted claimant's "significant exposure to fumes of hydrofluoric, (sic) nitric and sulfuric acids, as well as to cupridine, iron fumes and oil fumes." See Finding, paragraph #5. Dr. Smith thereafter referred the claimant to Dr. J. Bernard Gee, of the Yale School of Medicine. Dr. Gee examined the claimant December 26, 1979 and stated in his report, "`I cannot categorically state that this is an occupational lung disease and I think we need very specific data from the company in order to resolve the issue.'" See paragraph #7.
Dr. Gee then wrote to the claimant indicating his intent to learn more about the possible sources of exposure in the claimant's work place. On January 29, 1980 Dr. Smith sent a report to the respondent employer's plant physician stating "`This continues to be uncertain etiology and there is no proof at this time that this is related to occupational exposure but the suspicions remain.'" See paragraph #10. The trial commissioner found that claimant worked until late 1985 when he fractured some ribs. Claimant then noticed shortness of breath and saw the plant physician who referred him to Dr. Smith. In March, 1986, Dr. Smith reported to the plant physician, "`My impression is that this represents an occupational lung disease, most likely to hot oil fumes, to which the Patient has had significant exposure.'" See paragraph #12.
The statute of limitations or non-claim for occupational disease claims is contained in Sec. 31-294.
Sec. 31-294 provides 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 three years from the first manifestation of a symptom of the occupational disease . . . . For the purposes of this section, "manifestation of a symptom" means its manifestation to the employee claiming compensation, or to some other person standing in such relation to him that the knowledge of such a person would be imputed to him, in such manner as is or ought to be recognized by him as symptomatic of the occupational disease for which is claimed.
Bremner v. Eidlitz Son, Inc., 118 Conn. 666, 669-70 (1934) holds that the statute of limitations as to occupational disease begins to run only when symptoms are manifested, and that the symptoms are only manifested when the "plainly appear, not when it was merely suspected or doubtful." The date of manifestation is therefore a factual question. On such a question we will not disturb the trial commissioner's conclusions unless they are without evidence, contrary to law or based on impermissible or unreasonable factual inferences. Fair v. People's Savings Bank, 207 Conn. 535 (1988). Further those conclusions are not to be disturbed unless they are so unreasonable as to justify judicial interference. Bailey v. Mitchell, 113 Conn. 721 (1931).
Respondents argue the trial commissioner's conclusion as to the date of first manifestation of symptoms was so unreasonable as to justify judicial interference. We disagree. There was sufficient evidence presented below for the commissioner to have found and concluded as he did.
We therefore affirm the January 16, 1990 Finding and Award.
Additionally, pursuant to Sec. 31-301c(b) we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.
Commissioners Andrew Denuzze and Michael S. Sherman concur.