Carl Rice v. Vermilyn Brown, Inc., et al., 232 Conn. 780

Palmer, J. The dispositive issue raised by this appeal is whether General Statutes (Cum. Sup. 1939) § 13306 bars the workers’ compensation claim of the decedent, Carl Rice (claimant), against the named defendant, Vermilyn Brown, Inc. (Vermilyn Brown). The compensation commissioner (commissioner) concluded that the claimant was entitled to certain benefits under the Workers’ Compensation Act (act) for an occupational disease caused by his exposure to asbestos in 1942 during the course of his employment with Vermilyn Brown.

On appeal, the compensation review board (review board) reversed the finding and award of the commissioner, concluding that the claimant’s receipt of benefits was barred by § 1330e. Angela J. Rice, executrix of the claimant’s estate, appealed from the decision of the review board to this court. We affirm the decision of the review board. The commissioner found the following facts. The claimant was employed as a carpenter by Vermilyn Brown for several months in 1942. While so employed, he frequently was required to cut and install sheets of asbestos, resulting in his inhalation of asbestos particles.

Although the claimant continued to work as a carpenter until his retirement in 1981, his only significant exposure to asbestos occurred in 1942 during the months that he was employed by Vermilyn Brown. In December, 1986, the claimant, after experiencing difficulty breathing, consulted with Robert Keltner, a physician specializing in pulmonary medicine. Keltner diagnosed the claimant as suffering from chronic obstructive pulmonary disease with mild asbestosis, and concluded that the condition had been caused by the claimant’s exposure to asbestos in 1942.

Keltner also concluded that the claimant’s pulmonary disease had resulted in a 25 percent permanent loss of the use of his lungs. Thereafter, Keltner determined that the claimant had become totally disabled as of January, 1989, by which date he was suffering from a 50 percent permanent disability of the lungs. On November 27, 1989, the claimant filed a claim under the act for benefits on account of his lung condition. The commissioner found that the claimant suffered from an occupational disease resulting from his exposure to asbestos in 1942 during the course of his employment with Vermilyn Brown.

The commissioner further found that the claimant had suffered a 25 percent permanent disability of the lungs as of December 12,1986, and that the claimant’s permanent lung disability had increased to 50 percent by January 1, 1989. The defendants contested the claimant’s eligibility for benefits on, inter alia, the ground that his compensation claim was barred by § 1330e, which required him to have filed the claim within five years from the termination of his employment with Vermilyn Brown.

The commissioner rejected this argument, concluding instead that the claim was governed by the limitation period set forth in General Statutes (Rev. to 1985) § 31-294, the pertinent provision of the act in force on December 12,1986, when the claimant’s lung disease first was diagnosed. The commissioner also concluded that the claimant had suffered a compensable injury on that date, and that he had filed his compensation claim within three years thereafter as required by § 31-294.

On the basis of these findings, the commissioner awarded the claimant partial disability payments of $28.46 per week commencing on December 12,1986, such payments to continue for a period of 87.5 weeks, and total disability payments of $28.46 per week commencing on January 1,1989, such payments to continue for as long as the claimant remained totally disabled. The defendants appealed to the review board from the commissioner’s finding and award.

The defendants claimed, inter alia, that the rights and obligations of the parties were governed by § 1330e and that the claimant therefore was not entitled to compensation because his claim had not been filed within five years from the last date of his employment with Vermilyn Brown. The review board agreed with the defendants that the claim was barred by § 1330e and, accordingly, reversed the decision of the commissioner and dismissed the claim for workers’ compensation benefits. This appeal followed.

The plaintiff contends that the claimant’s workers’ compensation claim is governed by § 31-294 rather than by § 1330e and, consequently, that the review board incorrectly determined that the claim was not timely filed.

The plaintiff posits two alternative bases to support her argument: first, that § 31-294 applies retroactively to the contract of employment between the claimant and Vermilyn Brown; and second, that even if § 31-294 applies prospectively only, its application is otherwise mandated by the common law rule that the rights and obligations of the parties under the act are determined by the statutory provisions in force on the date of injury. Because we conclude that the claimant’s workers’ compensation claim is barred by § 1330e, we affirm the decision of the review board.

I The plaintiff first claims that the legislature intended § 31-294 to apply retroactively. “The rules of statutory construction that govern the applicability of new legislation to preexisting transactions are well established. Our point of departure is General Statutes § 55-3, which states: ‘No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have retrospective effect.’ The ‘obligations’ referred to in the statute are those of substantive law. . . .

Thus, we have uniformly interpreted § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only. . . . The Legislature only rebuts this presumption when it clearly and unequivocally expresses its intent that the legislation shall apply retrospectively.” (Citations omitted; internal quotation marks omitted.) Darak v. Darak, 210 Conn. 462, 467-68, 556 A.2d 145 (1989); see also Miano v. Thorne, 218 Conn. 170, 175-76, 588 A.2d 189 (1991).

The plaintiff acknowledges that the limitation period for the filing of claims under the act is a jurisdictional requirement that affects substantive rights. Vegliante v. New Haven Clock Co., 143 Conn. 571, 580-81, 124 A.2d 526 (1956); Walsh v. A. Waldron & Sons, 112 Conn. 579, 583-84, 153 A. 298 (1931); Schmidt v. O. K. Baking Co., 90 Conn. 217, 220, 96 A. 963 (1916). We presume, therefore, that the legislature intended § 31-294 to have prospective applicability only. Miano v. Thorne, supra, 218 Conn. 175; Darak v. Darak, supra, 210 Conn. 467-68.

Because there is nothing in the language of § 31-294 to suggest a contrary intent by the legislature, the plaintiff has failed to overcome the presumption against retroactivity. Furthermore, the legislative history of the precursor of § 31-294; see footnote 1; supports the conclusion that the legislature intended the limitation period contained therein to be applied prospectively only. Accordingly, the plaintiffs contention that § 31-294 applies retrospectively is without merit.

II The plaintiff also contends that even if § 31-294 is not applied retroactively, the claimant’s right to seek compensation benefits nonetheless is governed by § 31-294 under the common law rule that gives effect to the workers’ compensation statutes in force on the date of the injury. We conclude that the date of injury rule has no applicability in the circumstances presented by this case. As the plaintiff correctly asserts, we have adhered to the date of injury rule since 1916 to determine which of two or more successive amendments to the act governs the employment relationship.

Under this common law rule, the rights and obligations of the parties are governed by the provisions of the act in effect at the time of the injury. Civardi v. Norwich, 231 Conn. 287, 293 n.8, 649 A.2d 523 (1994); Kluttz v. Howard, 228 Conn. 401, 404 n.3, 636 A.2d 816 (1994); Iacomacci v. Trumbull, 209 Conn. 219, 222-23, 550 A.2d 640 (1988); Quilty v. Connecticut Co., 96 Conn. 124, 127, 113 A. 149 (1921); Schmidt v. O. K. Baking Co., supra, 90 Conn. 220-21.

In cases involving claims for workers’ compensation benefits on account of occupational disease, we have stated that the time of the injury is the date on which the claim first becomes compensable. See, e.g., Rossi v. Jackson Co., 120 Conn. 456, 460, 181 A. 539 (1935); Farmer v. Bieber-Goodman Corp., 118 Conn. 299, 301, 172 A. 95 (1934); Rousu v. Collins Co., 114 Conn. 24, 28, 157 A. 264 (1931).

The plaintiff contends that the application of these principles to the present case compels the conclusion that the rights and obligations of the parties are governed by § 31-294, the provision of the act in force on December 12, 1986, when the claimant suffered a compensable injury. The plaintiff further contends that the claimant’s workers’ compensation claim was timely filed because it was brought within three years from the first manifestation of a symptom of his occupational disease as required by § 31-294.

We reject the plaintiff’s argument, however, because the date of injury rule has no applicability when the claimant’s rights have already expired under the terms of the act that governed the employment relationship. The plaintiff acknowledges that § 1330e was the relevant provision of the act in force from the inception of the claimant’s employment relationship with Vermilyn Brown in 1942, until 1959, when § 1330e was amended.

Under § 1330e prior to its amendment, the claimant was required to have filed a workers’ compensation claim on account of his job related exposure to asbestos not later than five years from the date that he left the employ of Vermilyn Brown. The parties’ employment, relationship having terminated in July, 1942, the claimant’s right to file a workers’ compensation claim for his lung disease expired in July, 1947, twelve years before the legislature amended § 1330e to remove the prohibition against claims brought more than five years from the termination of the employment relationship.

Thus, as of July, 1947, there would have been no workers’ compensation jurisdiction for any claim by the claimant. Although the plaintiff concedes that the claimant’s right to file a claim on account of his occupational disease expired in 1947, she nevertheless contends that the date of injury rule should be applied to revive the claimant’s right to seek compensation for his lung ailment. We have never applied the date of injury rule to restore a right that had expired under the applicable provisions of the act, however, and we decline the invitation to do so now.

As we have stated, the purpose of the date of injury rule is to determine which of two or more successive amendments to the act governs the rights and obligations of the parties. Civardi v. Norwich, supra, 231 Conn. 293 n.8; Kluttz v. Howard, supra, 228 Conn. 404 n.3; Iacomacci v. Trumbull, supra, 209 Conn. 222-23. In this case, however, it is undisputed that § 1330e governed the parties’ rights and obligations as of July, 1947, when the claimant’s right to file a claim under the act expired.

The issue of the claimant’s right to bring a compensation claim having been resolved decades ago under § 1330e, there remains no choice of law question requiring the application of the date of injury rule. The rule has no application when, as here, the parties’ rights and obligations have been so finally concluded under the provisions of the act governing the employment relationship that no subsequent amendment without retrospective effect can alter them. See, e.g., Vegliante v.

New Haven Clock Co., supra, 143 Conn. 579 (“Since the [subsequent] amendment applied only in cases which arose from and after its enactment, it furnishes no aid to the plaintiff. Her rights had already expired under the old law, which governed her contract of employment. . . . Likewise, no other amendment to the compensation act effective more than three years after she left the defendant’s employ can help her.”); Rossi v. Jackson Co., supra, 120 Conn. 463 (“Since [the subsequent] provisions [of the act] only applied in cases which arose from and after their enactment, they furnish no aid to this employee.

His rights had already expired under the old law, which was the one governing his contract of employment.”); Schmidt v. O. K. Baking Co., supra, 90 Conn. 221 (“Whatever inchoate right, arising from his injuries, [the claimant] may have lost by noncompliance with the conditions precedent to a definite and enforceable claim, was then lost. Whatever that loss was, it could not be restored to him by subsequent legislation.”).

Although the legislature effected a policy change in 1959 when it amended § 1330e to eliminate the bar against claims filed more than five years after the termination of the employment relationship, we have concluded that the legislature intended that change to have prospective applicability only. See

part I. Moreover, the legislative history of the 1959 amendment indicates that the legislature, in removing the prohibition against claims not filed within five years of the last date of employment, did not intend to revive claims that had already expired under § 1330e. Thus, application of the date of injury rule to revive the claimant’s right to file a claim would nullify the five year limitation period of § 1330e, thereby altering the settled rights and obligations of the parties, contrary to the intent of the legislature. See Miller v. Kirshner, 225 Conn. 185, 203-204, 621 A.2d 1326 (1993); Moore v.

McNamara, 201 Conn. 16, 22, 513 A.2d 660 (1986); Lavieri v. Ulysses, 149 Conn. 396, 401-402, 180 A.2d 632 (1962). We need not, and do not, reject the date of injury rule as it has been applied since 1916 to determine the rights and obligations of the parties under the act. We conclude, however, that the date of injury rule has no applicability under the facts of this case, in which the claimant’s right to seek compensation already expired under the provisions of the act governing the employment relationship.

Accordingly, the review board properly determined that the claimant’s workers’ compensation claim, filed more than forty years after his right to seek compensation benefits had expired under § 1330e, was time barred. The decision of the review board is affirmed. In this opinion Peters, C. J., and Borden and Norcott, Js., concurred. General Statutes (Cum. Sup. 1939) 5 1330e provided in relevant part: “(

a) The first sentence of

section 1613c is amended to read as follows: No proceedings for compensation under the provisions of [the Workers’ Compensation Act] shall be maintained unless a written notice of claim for compensation shall be given within one year from the date of the accident or from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury . . . provided no claim on account of an occupational disease shall be made by an employee or his dependents against the employer in whose employ the disease is claimed to have originated, except while the employee is still in such employ, or within five years after his leaving such employ. ...”

Section 1330e was amended in 1959, at which time the prohibition against compensation claims filed more than five years after the termination of employment was eliminated. Public Acts 1959, No. 580, § 8, codified at General Statutes (1959 Sup.) § 31-168. In 1980, the legislature further amended the Workers’ Compensation Act to extend the period for the filing of a claim due to an occupational disease from one year after the first manifestation of a symptom of the disease to three years thereafter. Public Acts 1980, No. 80-124, § 5, codified at General Statutes (Rev. to 1981) § 31-294; see footnote 8.

The Second Injury Fund and Travelers Insurance Company are also defendants. The Workers’ Compensation Act can be found at General Statutes §§ 31-275 through 31-355a. The claimant died prior to the decision of the review board, and the original appeal from that decision was taken by the claimant’s attorney in the claimant’s name. Because an attorney may not prosecute an appeal on behalf of a decedent; see Hennessy v.

Denihan, 110 Conn. 646, 649,149 A. 250 (1930); the motion of the Second Injury Fund to dismiss the appeal without prejudice to the right of the executrix of the claimant’s estate to file an appeal on behalf of the estate was granted; see General Statutes § 52-599; see also Worden v. Francis, 170 Conn. 186, 188, 365 A.2d 1205 (1976); Clemens v. Harris, 120 Conn. 111, 113,179 A. 334 (1935). This appeal by the executrix followed. References to the plaintiff are to Angela Rice in her capacity as executrix.

The defendants, in their appeal to the review board, raised objections to certain of the commissioner’s factual findings. Because the review board concluded that the claimant’s application for benefits was barred by § 1330e, the board did not reach the defendants’ claims concerning the commissioner’s factual findings and, therefore, those claims are not the subject of this appeal. For the purposes of this appeal, we assume without deciding that the commissioner’s factual findings are supported by the record. See Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18, 411 A.2d 924 (1979).

In 1942, coverage under the act was available at the option of the parties to the employment contract. General Statutes (1930 Rev.) § 5227. Because the claimant and Vermilyn Brown opted for coverage under the act, its “terms . . . [were] incorporated into the contract of employment, [and] the rights and obligations of the parties were defined by that Act.” Walsh v. A. Waldron & Sons, 112 Conn. 579, 583, 153 A. 298 (1931); see also Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 649, 363 A.2d 1085 (1975); Vegliante v. New Haven Clock Co., 143 Conn. 571, 579-80,124 A.2d 526 (1956).

A second physician, Eric Glue, also a pulmonary specialist, concurred that the claimant’s asbestosis and obstructive lung disease had resulted in a moderate to severe lung impairment. General Statutes (Rev. to 1985) § 31-294 provided in relevant part: “notice of injury and of claim for compensation, (a) . . . .

No proceedings for compensation under the provisions of [the Workers’ Compensation Act] shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury .... “(b) ....

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 compensation is claimed. . . .”

Section 31-294 was amended in 1991 by No. 91-32 of the 1991 Public Acts, and recodified at General Statutes (Rev. to 1993) § 31-294c. The commissioner calculated the claimant’s benefits on the basis of his average weekly wage while employed by Vermilyn Brown in 1942. The claimant earned $622.52 during his 17.5 weeks of employment with Vermilyn Brown, for an average weekly wage of $35.57.

The commissioner concluded that under the applicable provisions of the act the claimant was entitled to compensation at the rate of 80 percent of his average weekly wage and, accordingly, awarded the claimant weekly compensation of $28.46. The commissioner further concluded that the claimant was entitled to payment for certain cost-of-living adjustments and to reimbursement for reasonable medical expenses resulting from his lung ailment.

The claimant also appealed from the commissioner’s decision on the ground that his benefits should have been calculated on the basis of his average weekly wage in 1981, when the claimant was last employed, rather than on the basis of his 1942 wages. See Mulligan v. F. S. Electric, 231 Conn. 529, 651 A.2d 254 (1994). Because the review board determined that § 1330e barred the claimant’s receipt of benefits, it did not consider this issue. The review board also declined to reach the other claims raised by the defendants.

The plaintiff concedes that the claimant’s workers’ compensation claim failed to satisfy the requirements of § 1330e. By contrast, procedural statutes generally are applied retroactively absent a clear expression of legislative intent to the contrary. Miano v. Thorne, 218 Conn. 170, 175, 588 A.2d 189 (1991); Darak v. Darak, 210 Conn. 462, 467 n.8, 556 A.2d 145 (1989).

Representative Robert Satter, in responding to a colleague’s question concerning the applicability of the new law during the floor debate in the House of Representatives, stated that “[t]hose cases that have occurred previously would not be covered by this law; the law would become effective on its passage.” 8 H.R. Proc., Pt. 12, 1959 Sess., p. 5083; see footnote 17.

The five year limitation period of § 1330e reflected the judgment of the legislature concerning the proper balance between an injured employee’s interest in compensation and the employer’s interest in a finite period of exposure to compensation claims, including those claims filed on account of occupational disease. Rossi v. Jackson Co., supra, 120 Conn. 462-63.

Thus, although the legislature was aware that a former employee might not know that he or she was suffering from an occupational disease until more than five years after the termination of the employment relationship, the legislature nonetheless opted to prohibit recovery in such circumstances. Id. The dissent’s repeated mischaracterization of our holding as creating an exception to the date of injury rule reflects its fundamental misunderstanding of the issue presented by this case. We do not “engraft [a] novel” and “newly crafted” exception onto the date of injury rule, as the dissent asserts.

We conclude, rather, that the doctrine is inapplicable because, as we have explained, there is no choice of law issue to be resolved: the claimant’s right to bring a claim expired in 1947 under the five year limitation period of § 1330e, the concededly applicable amendment to the act, long before the legislature, in 1959, prospectively eliminated the five year filing requirement.

For this reason, the dissent can cite to no authority to support its proposition that the choice of law principle embodied in the common law date of injury rule may be applied to revive a claim that has already expired under the applicable amendment to the act. The 1959 amendment to § 1330e eliminating the proscription against claims not filed within five years from the termination of the employment relationship was a direct response to our decision in Vegliante v.

New Haven Clock Co., supra, 143 Conn. 579, wherein we concluded that the right of the plaintiff to file a workers’ compensation claim on account of her occupational disease had expired under the precursor of § 1330e, which barred claims brought more than three years after the termination of the employment relationship. 8 H.R. Proc., Pt. 12,1959 Sess., pp. 5079-83; see footnote 18. Although not a model of clarity, the pertinent legislative history supports the conclusion that the legislature did not intend its elimination of the five year limitation period to have retroactive effect. Representative Michael J.

Vernovai, who opened the debate on the amendment removing the five year limitation period, stated as follows: “Finally the bill changes the [statute] of limitations to prevent people from being barred from obtaining benefits because they discovered their conditions too late to be able to make claims.

The law as proposed would permit notice being filed within a year of the date of injury or disability; it provides that the present [five year] statute [of limitations] be eliminated; that prevented workers from making [a] claim after they had been out of the employ of an employer against whom they claimed more than [five years]. This prevented people at the [New Haven Clock Company] from obtaining benefits for [radium] poisoning. It prevented claims for [radium] poisoning and it might prevent claims for . . . other diseases the manifestation of which comes some [years] after exposure.” 8 H.R.

Proc., Pt. 12, 1959 Sess., pp. 5079-80. The following colloquy then transpired between Representatives J. McCullough Turner and Robert Satter: “[Representative] Turner: Would this [bill] cover a case of radiation illness? [Representative Vernovai] referred to radiation poisoning among workers in the [New Haven Clock Company] and I know well this is a latent disease which doesn’t develop until up to [twenty-five years] after exposure.

Would this bill cover those persons? “[Representative] Satter: Under the present law those people who received that illness in the [New Haven Clock Company] would not be compensated; the present bill would enable them to be compensated, because the statute of limitation[s] doesn’t start until there is a manifestation of the symptoms. “[Representative] Turner: [Representative Satter], a technicality.

I would like to be assured that this bill before us would cover those cases. “[Representative] Satter: Those cases that have occurred previously would not be covered by this law; the law would become effective on its passage.” In the case referred to during the floor debate, Vegliante v.

New Haven Clock Co., supra, 143 Conn. 577-79, the claimant’s right to seek compensation benefits had expired both because her claim had not been filed within one year of the date that she became aware of her illness and because she had not filed her claim within three years from the date she left the employ of the New Haven Clock Company. The legislature, however, was concerned only with the latter bar to recovery and, consequently, the debate focused entirely upon the elimination of that provision.

In amending the act to eliminate the five year limitation period for the filing of claims, the legislature, as Representative Satter indicated, intended the amendment to apply only to those compensation claims that, unlike the claim in Vegliante, had not expired under the prior law. The plaintiff suggests that because the legislature is presumed to have been aware of the date of injury rule; see Iacomacci v. Trumbull, supra, 209 Conn. 221-23; application of the rule to revive the claimant’s right to file a claim would not be inconsistent with the intent of the legislature.

As we have discussed, however, the date of injury rule is inapplicable in circumstances where, as here, there is no choice of laws issue to be decided. Thus, a presumption that the legislature was aware of the rule provides no support for the plaintiff’s argument.