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PRISCO v. NORTH JUDD

Workers' Compensation Commission
Jun 30, 1992
1190 CRD 8 (Conn. Work Comp. 1992)

Summary

In Prisco, the claimant suffered from lung disease due to smoking, but sustained an aggravation of the lung disease during his exposure to heat and fumes in a foundry where he was employed.

Summary of this case from EPPS v. BEIERSDORF, INC

Opinion

CASE NO. 1190 CRD-8-91-3

JUNE 30, 1992

The claimant was represented at the trial level by Antoinette Ruzzier, Esq. On the appeal level the claimant was represented by Lawrence J. Cicchiello, Esq., Law Offices of Angelo Cicchiello.

The respondent AIAC were represented by Thomas Mulligan, Esq., James Hughes, Esq. and William Billcheck, Esq. all of McNamara and Kenney. The respondents Aetna Casualty Surety were represented by Richard Stabnick, Esq. and Margaret Corrigan, Esq. both of Pomeranz, Drayton Stabnick. The respondents, National Employers were represented by George Waldron, Esq., formerly of, and Booth Kelly, Esq., currently of Murphy Beane.

The instant Petition for Review was filed by the respondents, Aetna and none of the other respondents filed a brief on appeal nor appeared at oral argument with the exception of the respondents, AIAC whose counsel appeared at oral argument.

This Petition for Review from the February 22, 1991 Finding and Award of the Commissioner at Large acting for the Eighth District was heard January 24, 1992 before a Compensation Review Division panel consisting of the then Commission Chairman, John Arcudi and Commissioners Robin Waller and Angelo L. dos Santos.


OPINION


In this appeal from an occupational disease award, respondents dispute the commissioner's finding that claimant's claim for benefits timely filed under Sec. 31-294. They also argue that their liability should have been lessened under Sec. 31-275(12)(D) because claimant's disability arose due to an aggravation of a pre-existing lung disease.

Claimant was employed by the respondent employer from September, 1966 through February, 1988. In those twenty-two years the employer had insured its workers' compensation liability with the various carriers who were also respondents on the claim. During most of his employment tenure with the respondent the claimant worked in the foundry and was exposed to very high heat and dust. He was diagnosed as a "forty pack" per year smoker for most of his life. In 1981 he began to experience nasal problems and wheezing. Between 1981 and 1984 he underwent several medical procedures and periods of hospitalization to relieve headache and sinus pain. In May, 1987 the respondent employer had all employees tested for a possible blood disorder. It was then that claimant first learned that he had a medically diagnosed condition of asthma. In November, 1987 the claimant's own physician, Dr. Michael Genovesi, diagnosed his condition bronchial asthma and advised claimant to stop working in the mold pouring

To support the contention that the claim was not timely filed respondents allege "that as of 1984 and possibly even 1981, the claimant could reasonably conclude from his health consultation and treatment with physicians that his symptoms were occupationally related." They concede in their brief that "[t]he question of manifestation of symptoms is purely one of fact." See Respondents Brief at 11. See also, Deangelo v. Allegheny Ludlum Corp., 9 Conn. Workers' Comp. Rev. Op. 126, 970 CRD-8-90-1 (1991).

But in neither their Motion to Correct nor their brief do the respondents set out the specific parts of the evidentiary record which support their argument. It is not the duty of this tribunal to cull out the specific parts of the record which might support respondents' contentions, Gonzalez v. Meriden-Wallingford Hospital, 1178 CRD-8-91-2 (decided May 21, 1992) citing Sorrentino v. Cersosimo, 103 Conn. 426, 429 (1925). See also, Horkheimer v. Town of Stratford, 4 Conn. Workers' Comp. Rev. Op. 139, 163 CRD-4-82 (1987); Platt v. UTC/Pratt Whitney Aircraft Div., 3 Conn. Workers' Comp. Rev. Op. 3, 164 CRD-6-82 (1985).

As an allegation that a claim was untimely filed raises a jurisdictional question and despite appellants' failure to buttress their argument with appropriate evidential references, we must point out that mere suspicion that a disease or an aggravation is work related does not cause the limitations period to begin to run. It must be a known manifestation of a symptom. Bremner v. Eidlitz, 118 Conn. 666 (1934), Cortes v. Allegheny Ludlum Steel Corp., 1 Conn. Workers' Rev. Op. 173, 61 CRD-3-81 (1982).

In the second issue raised respondents seek to have their liability reduced because claimant's long term cigarette smoking had caused his basic lung disease and his occupation had merely caused an aggravation. The commissioner denied that argument on the basis of Bongialatte v. Lines Co., 97 Conn. 548 (1922).

Sec. 31-275(12)(D) provides:

In the case of aggravation of a preexisting disease, compensation shall be allowed only for such proportion of the disability or death due to the aggravation of such preexisting disease as may be reasonably attributed to the injury upon which the claim is based.

Cashman v. McTernan School, Inc., 130 Conn. 401, 409 (1943) stated, "The provision in Sec. 31-275 of the General Statutes that calls for apportionment of compensation in the case of `aggravation of a pre-existing disease' refers only to occupational diseases." That decision distinguished Henry v. Keegan, 121 Conn. 71 (1936) and reasserted the rule in Bongialatte v. Lines Co., 97 Conn. 548, 552 (1922). See also, J. Asselin, Connecticut Workers' Compensation Practice Manual, at 49.

Here the commissioner found "that the claimant sustained an aggravation of his underlying lung disease while employed at North Judd, [the respondent employer] which disease first manifest (sic) itself in the last two or three years of claimant's employment and for which claimant filed a timely notice of claim." See Paragraph #16.

The trier then stated in paragraph #16A of the Finding and Award, "I further find that the claimant's diagnosed obstructive lung disease with asthma and bronchitis were severely aggravated by the environmental conditions at the claimant's place of work". Nowhere in the Finding and Award does the trial commissioner find that the claimant's pre-existing underlying lung disease is an occupational disease.

The correction sought by the respondents relied on Dr. Godar's testimony which attributed only thirty-five (35%) per cent of claimant's lung impairment to the work environment and the remaining impairment to cigarette smoking. But the Cashman and the Bongialatte holdings together with Sec. 31-349 of the law clearly mandate where no pre-existing impairment due to occupational disease is present, the employer as in the law of torts takes the victim as it finds him and pays for the entire resultant disability. Under the circumstances in the present case Sec. 31-275(12)(D) is not applicable.

We therefore affirm the February 22, 1991 Finding and Award and deny the appeal. Pursuant to Sec. 31-301c(b) we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of this appeal.

Commissioners Robin Waller and Angelo L. dos Santos concur.


Summaries of

PRISCO v. NORTH JUDD

Workers' Compensation Commission
Jun 30, 1992
1190 CRD 8 (Conn. Work Comp. 1992)

In Prisco, the claimant suffered from lung disease due to smoking, but sustained an aggravation of the lung disease during his exposure to heat and fumes in a foundry where he was employed.

Summary of this case from EPPS v. BEIERSDORF, INC
Case details for

PRISCO v. NORTH JUDD

Case Details

Full title:ANDREA PRISCO, CLAIMANT-APPELLEE v. NORTH JUDD, EMPLOYER and AIAC…

Court:Workers' Compensation Commission

Date published: Jun 30, 1992

Citations

1190 CRD 8 (Conn. Work Comp. 1992)

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