Estate of Haburey v. Town of Winchester

• Decision Date: 23 May 2014
• Docket Number: No. 35802.,35802.
• Citation: 150 Conn.App. 699,92 A.3d 265
• Court: Connecticut Court of Appeals
• Parties: ESTATE OF Robert G. HABUREY v. TOWN OF WINCHESTER, et al.

150 Conn.App. 699

92 A.3d 265

ESTATE OF Robert G. HABUREY

v.TOWN OF WINCHESTER, et al.

No. 35802.

Appellate Court of Connecticut.

Argued March 6, 2014.^*

Decided May 23, 2014.

Richard S. Bartlett, East Hartford, for the appellants-cross appellees (defendants).

Maureen O'Doherty, for the appellee-cross appellant (plaintiff).

BEAR, SHELDON and FLYNN, Js.^**

FLYNN, J.

The defendants, the town of Winchester (town) and the Connecticut Interlocal Risk Management Agency, appeal from the decision of the Workers' Compensation Review Board (board), affirming the decision of the Workers' Compensation Commissioner (commissioner) awarding the plaintiff, Shirley Haburey,¹ burial expenses and survivorship benefits, pursuant to General Statutes § 31–306(1) and (3) respectively. In this appeal, the defendants claim that the board erred in affirming the commissioner's determinations that (1) he had subject matter jurisdiction to hear this claim although the plaintiff never filed a notice of claim for benefits; (2) there was insufficient factual support to justify a finding that the plaintiff's husband, Robert Haburey (decedent), died as a result of Legionnaires' Disease; and (3) there was insufficient medical, scientific, or epidemiological evidence to support the commissioner's decision that the decedent sustained an occupational disease arising out of and in the course of his employment with the town.

We conclude that the board properly affirmed the commissioner's conclusion that it had subject matter jurisdiction because, contrary to the claim of the defendants, the plaintiff had filed a timely notice of claim using form 30c, which at the time of filing was the form used by the Workers' Compensation Commission (commission) to claim survivor benefits. The inevitable conclusion from the commissioner's findings and award is that he found that the notice given not only was timely, but was sufficient to put the defendants on notice that a claim for survivorship benefits was being made, a factual finding to which the board and we give deference. We further conclude that the board properly affirmed the commissioner's finding that the decedent's death was caused by Legionnaires' Disease resulting from his job raking raw sewage from intake grates and his exposure to splashes of untreated sewage and/or aerosolized raw sewage mist in the pump house. Finally, we conclude that the board properly affirmed the commissioner's determination that the decedent sustained an occupational disease that arose out of and in the course of his employment with the town. Therefore, we affirm the board's decision.²

The following facts and procedural history inform our analysis. At the time of his death, the decedent and the plaintiff were married. The decedent was employed by the town; he worked in its wastewater treatment plant from 1972 until his death in 1996. The decedent worked in the influent pump house. His job was to clear grates of raw sewage, either by raking the grates or hosing them using a high-pressure power hose. Untreated sewage would come into the building and accumulate at the grates, requiring the raw sewage to be raked from the grates every couple of hours during an eight hour shift. There often was a mist present in the pump house from the sewage. When the grates were not raked for extended periods of time, sewage would spill onto the floor of the influent pump house. Sometimes, untreated sewage would splash onto the decedent as he worked. The only safety equipment provided to the decedent were gloves and overshoes.

Prior to his illness in April of 1996, the decedent was healthy and physically active. The decedent began feeling ill approximately one week before he sought treatment at Winsted Memorial Hospital on April 10, 1996. He was evaluated, treated for a viral syndrome with dehydration, and released from the hospital. He returned to the hospital later that day, where he was examined by Dr. David Lawrence and admitted. His chief complaints included muscle aches and soreness, shortness of breath, and abdominal discomfort. Dr. Lawrence testified that when he first laid eyes on the decedent, he could tell that he was suffering from a serious infection.

The decedent was evaluated by a surgeon, Dr. George Record, because of his complaint of abdominal pain, and Dr. James O'Halloran, an infectious disease specialist. Dr. Record concluded that there was nothing significant occurring in the decedent's abdomen to explain his symptoms. Blood tests were performed and a chest X ray was taken. The blood tests showed a significantly elevated white blood cell count, indicating that the decedent was suffering from a severe infection. Dr. Lawrence concluded that the decedent was suffering from septic shock, the cause of which was unknown. Further testing and an additional chest X ray showing signs of pneumonia led Dr. Lawrence to broaden the antibiotic spectrum administered to the decedent to include treatment for Legionella. The decedent did not improve from the antibiotic therapy he received, and he died on April 12, 1996 from “overwhelming sepsis,” the cause of which was unknown at that time to his doctors. An autopsy was performed on the decedent and showed inflammation in his left lung, greater than in the right, and erythremia³ of his trachea. The finding of pneumonic process is consistent with Legionella.

Notice of claim was filed with the commission on January 3, 1997, using form 30c. This form was completed by an attorney. In the space on the form captioned “Injured Worker Information,” the decedent is listed. In the space on the form captioned “Employer Information,” the town is identified. Finally, under the caption “Injury Information,” the decedent's injury is described as “massive sepsis from infection contacted at work.” ⁴ Additionally, under that caption, the form indicated that “[t]he decedent came in contact with a virus at work which resulted in his death.” The form 30c does not provide space for one to specify on whose behalf the claim is filed. On its face, the specific form 30c filed in this case does not elucidate whether the claim was filed on behalf of the decedent's estate or on behalf of the plaintiff. This problem has since been addressed through the adoption of form 30d, which is designed specifically for dependents' claims. See Workers' Compensation Commission, “Online Forms,” (last modified May 13, 2014), available at http:// www. wcc. state. ct. us/ download/ forms. htm# FORMS (last visited May 23, 2014) (copy contained in the file of this case in the Appellate Court clerk's office). The new form 30d was adopted on September 24, 2007 ⁵ and is titled “Dependent's Notice of Claim” and, unlike form 30c, providesseparate spaces to identify the dependent and the deceased worker.

The defendants filed a form 43 stating that they intended to contest liability on the grounds that (1) the cause of the decedent's death did not arise out of and in the course of his employment, and (2) a causal relationship had not been proven sufficiently. The form 43 filed by the defendants contested only the factual basis of the claim, namely, whether the decedent's “massive sepsis” was a work related injury. The defendants did not raise their jurisdictional argument in this first filing. In fact, the jurisdictional argument was not raised until 2009, twelve years after the claim in this case first was filed.

The claim remained stagnant until September 18, 2009, when the defendants filed a motion to dismiss, claiming that the commissioner lacked subject matter jurisdiction over the claim. The commissioner denied the defendants' motion on May 7, 2010. Thereafter, the commissioner held four hearings in 2011 and 2012 and issued a written decision on May 30, 2012. The commissioner concluded that “[t]he pathogen that killed [the decedent] was Legionella” and that “[the decedent's] death arose out of and in the course of his employment.” Accordingly, the plaintiff was awarded burial expenses for the costs of the decedent's interment and survivorship benefits, pursuant to § 31–306(1) and (3) respectively. On May 30, 2012, the defendants paid the plaintiff $4000 for the decedent's burial expenses, $543,537.32 in back survivorship benefits, and commenced biweekly payments of survivorship benefits. The defendants filed a motion to correct with the commissioner, which was denied. Thereafter, they filed an appeal with the board on June 19, 2012. The board held a hearing on November 30, 2012, and issued its decision on June 14, 2013, affirming the commissioner's decision. This appeal followed.

I

We first address the defendants' claim that the board erred in concluding that the commissioner had subject matter jurisdiction to adjudicate this claim. Specifically, the defendants argue that the commissioner lacked subject matter jurisdiction over the plaintiff's claim, as dependent widow of the decedent, because she never filed a notice of claim for benefits as required by General Statutes § 31–294c (a). We disagree.

We begin by setting forth our standard of review. To the extent that the commissioner's factual determinations are challenged on appeal, we must defer to the finder of facts, the commissioner, unless his findings are unsustainable. See Sapko v. State, 305 Conn. 360, 371, 44 A.3d 827 (2012); Thompson v. Roach, 52 Conn.App. 819, 824, 728 A.2d 524, cert. denied, 249 Conn. 911, 733 A.2d 227 (1999).

“It is well established that [a]lthough not dispositive, we accord great weight to the construction given to the workers' compensation statutes by the commissioner and review board.... Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” (Internal quotation marks omitted.) Chambers v. Electric Boat Corp., 283 Conn. 840, 844, 930 A.2d 653 (2007)...