CASE NO. 1103 CRD-3-90-8
JANUARY 13, 1992
The claimant was represented at the trial level by Edward Cantor, Esq., and on appeal by Scott Wilson Williams, Esq., Maher Williams.
The respondents were represented by Michael Belzer, Esq., Assistant Attorney General.
The Petition for Review from the August 20, 1990 Finding and Award of the Commissioner for the Fifth District acting for the Third District was heard June 28, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Andrew Denuzze and Angelo dos Santos.
The present appeal is from the August 20, 1990 Finding and Award of the Commissioner for the Fifth District acting for the Third District. An earlier appeal from a May 2, 1986 ruling by that same commissioner was withdrawn June 23, 1987. In that ruling that trial commissioner had granted the claimant's Motion to Preclude Defenses.
We note that while the title of the trial commissioner who presided over the instant matter has changed in the course of the proceedings below all the trial level decisions were rendered by the same trial commissioner.
In his August 20, 1990 decision the commissioner awarded claimant 350 weeks of permanent partial disability for the loss of use of his rectum, 130 weeks of permanent partial disability for near total sexual impotence and 52 weeks of permanent partial disability for the loss of abdominal wall function, all of which resulted from cancer surgery resulting in a permanent colostomy. The respondent's appeal contends (1) claimant's Notice of Claim was not timely and (2) the award for permanent partial benefits was found without competent supporting evidence.
The January 23, 1991 Reasons of Appeal stated the following: 1. The Commissioner erred in finding that the claimant's Notice of Claim was timely where the claimant was aware of the relationship between his symptoms and his claimed occupational disease six years before he attempted to serve a notice of claim. 2. The commissioner erred in finding that the time limited for commencing a claim based on an occupational disease did not begin until he was aware of the possible link between his disease and his work place. 3. The Commissioner erred in giving effect to the claimant's purported notice of claim where said notice was a nullity because the claim was not filed within the time permitted by statute, and therefore, subject matter jurisdiction had lapsed. 4. The Commissioner erred in awarding permanency benefits without competent supporting evidence from a treating physician or by the testimony of an independent medical examiner. 5. The Commissioner erred by denying the respondent's motion to correct.
The issue of whether claimant's August, 1984 notice of claim was timely under Sec. 31-294 may be raised despite any legal effect which may attach to the earlier withdrawal of respondent's appeal from the granting of preclusion. The timeliness of a claim under Sec. 31-294 is a jurisdictional matter and may be raised at any time. See Pelletier v. Caron
Pipe Jacking Inc., 13 Conn. App. 276 (1988) cert. denied 207 Conn. 805 (1988). As we noted in Kinney v. State, 6 Conn. Workers' Comp. Rev. Op. 143, 144-145, 786 CRD-3-88-11 (1989),
The recent holdings in Castro, 207 Conn. 420 (1988) and Pelletier, supra are the latest in a long series of decisions defining the limited subject matter jurisdiction of the commission as a creature of statute. Neither can such jurisdiction be conferred by consent or waiver. . . . Moreover, an award or a judgment entered by a tribunal without jurisdiction over the res "is void ab initio and subject to both direct and collateral attack." Broaca v. Broaca, 181 Conn. 463, 467 (1980) (citations omitted).
It is therefore necessary to examine respondents' contention on timeliness. Sec. 31-294 provides that a written notice of claim be given "within three years from the first manifestation of a symptom of the occupational disease." Our holding in Cortes v. Allegheny Ludlum Steel Corp., 1 Conn. Workers' Comp. Rev. Op. 173, 177, 61 CRD-3-81 (1982) relied on Bremner v. Eidlitz Sons, Inc., 118 Conn. 666 (1934). "Knowledge of a physician not communicated to claimant is not a known manifestation of symptom. The statute is to start running only when a claimant or his representative knew or should have known that the worker was experiencing a symptom related to an occupational disease."
Whether the claimant knew or should have known that he was experiencing a symptom related to an occupational disease is a factual determination of the trial commissioner. In the May 2, 1986 Memorandum the commissioner found "Since claimant was unaware of the possible link between his work place and his cancer until 1984 that is when the statute began to run." (citation omitted). On review we may only determine whether there was evidence to support the trier's conclusion, whether the conclusion was contrary to law or whether the conclusion was based on unreasonable or impermissible factual inferences. Here the claimant testified that he only first became aware of the occupational connection to his employment in 1984. See August 5, 1985 Formal Hearing, Tr., p. 8. Respondent presented no evidence to dispute claimant's testimony. As there was a sufficient evidentiary basis for the commissioner's conclusion, there is no ground for appellate interference. Bailey v. Mitchell, 113 Conn. 721 (1931).
Respondent argues that claimant was lax in not ascertaining the work relatedness of his cancer sooner. It cites no authority for its contention other than the purpose underlying Sec. 31-297(b) to encourage the prompt investigation of claims and an unsupported assertion that it is somehow inequitable to preclude defenses where a claim is "clearly late." See May 8, 1991 Brief of the Respondent (Appellant) at 7. Again "clearly late" is respondent's characterization. It was not the commissioner's conclusion; as the trier's conclusion is sustainable for reasons already noted, respondent's argument is untenable.
Although respondent did not refer to that argument in its Reasons of Appeal reproduced above in footnote 2, its brief contends that the Notice of Claim failed to comply with Sec. 31-294. See e.g., Fuller v. Central Paving Company, 5 Conn. Workers' Comp. Rev. Op. 92, 665 CRD-7-87 (1988). As this issue was not included in the Reasons of Appeal, it need not be considered. Sager v. GAB Business Services, Inc., 11 Conn. App. 693 (1987) held that the Compensation Review Division's "Reasons of Appeal" were analogous to the "preliminary statement of issues" filed pursuant to Practice Book Sec. 4013(a)(1) in appeals to the appellate courts. Thus as our Supreme court has held as issue not raised in a preliminary issue statement need not be considered on appeal, by analogy we need not consider this argument. See Rosenblit v. Danaher, 206 Conn. 125, 136 note 12 (1988). Also, Robert S. Weiss Co. v. Mullins, 196 Conn. 614 (1985); Presutti v. Presutti, 181 Conn. 622 (1980). Further as respondents withdrew their appeal from the May 2, 1986 ruling, any objection to the sufficiency of the notice of claim was waived. Unlike the jurisdictional issues of timeliness and the employer/employee relationship, failure strictly to comply with Sec. 31-294 technical requirements does not deprive a commissioner of subject matter jurisdiction.
Even if we were to consider whether claimant's notice of claim met the Sec. 31-294 technical requirements, we fail to note any deficiencies in claimant's July 24, 1984 notice. Respondent's basic contention is that the notice failed to provide "the date and place of the accident and the nature of the injury resulting therefrom" as required by Sec. 31-294. See Respondent's Brief at 8. But the claim here is for an occupational disease. Sec. 31-294 C.G.S. provides: "Such notice 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 therefrom, or the date of the first manifestation of the occupational disease and the nature of such disease. . . ." (emphasis ours). Claimant's notice certainly satisfies the technical prerequisites for an occupational disease notice of claim set out in Sec. 31-294 C.G.S.
Claimant's July 24, 1984 Notice of Claim provides the following:
Workers' Compensation Commissioner 770 Chapel Street New Haven, Connecticut 06510
Re: Theodore Peters, 141 Florence Street, East Haven, CT
Anthony Solevo, 15 Haines Street, East Haven, Connecticut Tan Construction Co., 141 Florence St., East Haven, CT Southern Connecticut State University
This office represents the above-named party who has suffered from an occupational disease as a result of his employment at the above-named places. Mr. Peters worked for Anthony Solevo in East Haven for approximately three years, 1957 to 1960. From 1960 to 1968 he worked for a corporation, located at the East Haven address, known as Tan Construction Co. That corporation is no longer in business. Subsequently, he worked at Southern Connecticut State College, also known as Southern Connecticut State University and continues to work there.
On or about 1978, he was diagnosed as having cancer and was caused to undergo a total colostomy, resulting in a loss of function to a portion of his body. It has just come to the attention of Mr. Peters that the colostomy is probably work-related as a result of his exposure through his employment. He seeks compensation for same.
very truly yours,
EDWARD H. CANTOR
As to the respondent's other issue whether there was sufficient supporting evidence for the award of permanent partial benefits, the argument raised is that the medical reports of Dr. Paul Ephraim upon which the trial commissioner relied were never made part of the evidentiary record. The reports referred to are dated October 11, 1989 and May 21, 1990. (See Paragraphs 15-17 of the August 20, 1990 Finding and Award.) The reports apparently were mailed to the commissioner but never entered formally into the record. Therefore as they were not in evidence, the commissioner was incorrect to rely on those reports in his August 20 ruling. There need to be further proceedings so that Dr. Ephraim's reports may be entered. The matter is remanded for such further proceedings consistent with this opinion.
On the face of the August 20, 1990 Finding and Award, the trial commissioner refers to an August 5, 1985 hearing only. Our review of the record indicates that a subsequent hearing was held January 22, 1988.
We therefore affirm in part and reverse and remand in part the August 20, 1990 Finding and Award of the trial commissioner.
Commissioners Andrew Denuzze and Angelo dos Santos concur.