5280 CRB-2-07-10 (2009). Abrahamson v. State of Connecticut Department of Public Works.

• Court: Connecticut

Connecticut Workers Compensation 2009. 5280 CRB-2-07-10 (2009). Abrahamson v. State of Connecticut Department of Public Works CASE NO. 5280 CRB-2-07-10 COMPENSATION REVIEW BOARD WORKERS' COMPENSATION COMMISSION FEBRUARY 26, 2009ERNEST A. ABRAHAMSON CLAIMANT-APPELLANT v. STATE OF CONNECTICUT DEPARTMENT OF PUBLIC WORKS EMPLOYER SELF-INSURED RESPONDENT-APPELLEE and GAB ROBINS NORTH AMERICA ADMINISTRATOR APPEARANCES: The claimant was represented by Amy Stone, Esq., formerly of, O'Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge Street, P.O. Drawer 929, Groton, CT 06340. The respondent State of Connecticut was represented by Taka Iwashita, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120. This Petition for Review of the October 2, 2007 Finding and Order on Remand of the Commissioner acting for the Second District was heard July 25, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich. OPINIONJOHN A. MASTROPIETRO, CHAIRMAN.The claimant has petitioned for review from the October 2, 2007 Finding and Order on Remand of the Commissioner acting for the Second District. We find no error, and affirm the decision of the trial commissioner. The following factual determinations are pertinent to our review. The claimant was employed by A. Torrance Construction Company from 1952 through 1964, during which period he experienced substantial exposure to asbestos. In 1964, the claimant was employed by the State of Connecticut, from which he retired in 1985. The claimant sustained additional exposure to asbestos during this time period. On March 7, 1980, the claimant underwent a thoracotomy and resection of the lower lobe of his right lung. He did not seek additional examination or treatment for his lungs until September 29, 2000, when he met with Paul Greif, M.D. The tests ordered by Dr. Greif indicated the claimant had "asbestos-related pleural disease, a pleural-based lesion and a pulmonary fibronodular density." Claimant's Exhibit D. Dr. Greif referred the claimant to John Federico, M.D., who subsequently performed a biopsy of the claimant's lung nodules. The biopsy indicated the claimant had "pleural and sub-pleural fibrosis and asbestos bodies." Claimant's Exhibit L. No malignancy was found. The claimant was then examined by Louis V. Buckley, M.D., on May 30, 2002, who diagnosed the claimant with "asbestos pleural plaques" and "infolding pleuritis, a benign condition associated with asbestosis." Claimant's Exhibit O. Dr. Buckley subsequently opined that the claimant "suffered from repeated episodes of infolding pleuritis" which had resulted in the claimant's need for surgery in both 1980 and 2001. Id. On March 5, 2003, Dr. Buckley assigned the claimant a thirtyfive (35%) percent permanent partial disability of his lungs due to the surgical resections and scarring caused by the pleuritis. At the request of the respondent, the claimant was examined by Michael Conway, M.D., on June 9, 2004. In reports dated June 9, 2004 and August 31, 2004, Dr. Conway indicated that he agreed with Dr. Buckley regarding the diagnosis and causation of the claimant's lung disease. Dr. Conway assigned the claimant a forty (40%) percent permanent partial disability of both lungs as a result of the claimant's asbestos-induced pleural disease, lobectomy and chronic obstructive pulmonary disease, and indicated that of that forty (40%) percent, he attributed twenty (20%) percent of the claimant's lung disability to the claimant's employment with the State of Connecticut and eighty (80%) percent to the claimant's prior employment with A. Torrance Construction Company. The claimant filed a Notice of Claim against the State of Connecticut on July 20, 2001 alleging a lung injury caused by exposure to asbestos during his employment with the state. Following two formal hearings held in this matter, the trial commissioner determined that the date of the claimant's incapacity was March 5, 2003. The trial commissioner found the opinions of Drs. Greif and Buckley more persuasive than the other medical opinions offered relative to the issue of causation, but found Dr. Conway's rating of forty (40%) percent more credible than Dr. Buckley's rating of thirty-five (35) percent. The trial commissioner "specifically rejected" Dr. Buckley's opinion that the claimant had suffered two distinct injuries in 1980 and 2000. Findings, ¶ W. Based on the lack of evidence relative to the claimant's exposure to asbestos after 1985, the trial commissioner determined the State of Connecticut was the carrier for purposes of § 31-299b C.G.S.(fn1) Noting that the respondent had made a $10,000.00 advance to the claimant on August 23, 2004, the trial commissioner awarded the claimant statutory interest pursuant to § 31-295c C.G.S.(fn2) and § 31-300 C.G.S.(fn3) but denied the claimant's claim for attorney's fees. The trial commissioner also indicated that the matter would be set down for additional hearings on the issue of apportionment. The claimant filed a Motion for Articulation seeking clarification as to whether the interest awarded by the trial commissioner pursuant to § 31-300 C.G.S. was payable at the rate of ten (10%) percent, in conformity with § 37-3a C.G.S., or twelve (12%) percent, both of which are permitted under that statute.(fn4) The trial commissioner granted the claimant's motion and ordered the State of Connecticut to pay interest at the rate of ten (10%) percent. Prior to the issuance of the trial commissioner's ruling on the Motion for Articulation, the claimant filed an appeal contending that the trial commissioner had committed reversible error by failing to award the claimant attorney's fees and by failing to award interest on the basis of both § 31-295(c) C.G.S. and§ 31-300 C.G.S. On January 9, 2007, this board remanded the matter to the trial commissioner for clarification as to whether he had found fault or neglect on the part of the respondent and, if not, whether the award to the claimant of interest at ten (10%) percent was made pursuant to § 31-295(c) C.G.S. or the appropriate provision of § 31-300 C.G.S. In his Finding and Order on Remand issued on October 2, 2007, the trial commissioner took administrative notice of the original Finding and Award and the subsequent Compensation Review Board Opinion. The trial commissioner also indicated that he had "reviewed, considered and weighed" the prepared findings of the claimant and respondent but did not consider the respondent's "Response to Claimant's Proposed Finding and Award" dated June 18, 2007. The trial commissioner determined that interest had been awarded to the claimant pursuant to § 31-300 C.G.S. and not § 31-295(c) C.G.S. The trial commissioner also "specifically" found the payment to the claimant was not unduly delayed because of fault or neglect on the part of the respondent, Findings, ¶ 6, and dismissed the claimant's claims for attorney's fees and interest pursuant to § 31-295(c) C.G.S. The claimant filed a Motion to Correct, which was denied in its entirety, and this appeal followed. On appeal, the claimant puts forth two...