Rice v. Vermilyn Brown, Inc., 15123

• Decision Date: 02 May 1995
• Docket Number: No. 15123,15123
• Citation: 657 A.2d 616,232 Conn. 780
• Court: Connecticut Supreme Court
• Parties: Carl RICE v. VERMILYN BROWN, INC., et al.

Page 616

657 A.2d 616

232 Conn. 780

Carl RICE v. VERMILYN BROWN, INC., et al.

No. 15123.

Supreme Court of Connecticut.

Argued Jan. 5, 1995.

Decided May 2, 1995.

Matthew Shafner, Groton, with whom, on the brief, was Mark W. Oberlatz, Norwich, for appellant (plaintiff).

Robert S. Cullen, Hamden, for appellee (named defendant).

Jane R. Rosenberg, Asst. Atty. Gen., with whom, on the brief, were Richard Blumenthal, Atty. Gen., and William J. McCullough, Michael J. Belzer, Michelle D. Truglia and Lisa Kahn, Asst. Attys. Gen., for appellee (defendant Second Injury Fund).

Before PETERS, C.J., and BORDEN, BERDON, NORCOTT and PALMER, JJ.

PALMER, Associate Justice.

The dispositive issue raised by this appeal is whether General Statutes (Cum.Sup.1939) § 1330e ¹ bars the workers' compensation claim of the decedent, Carl Rice (claimant), against the named defendant, Vermilyn Brown, Inc. (Vermilyn Brown). ² The compensation commissioner (commissioner) concluded that the claimant was entitled to certain benefits under the Workers' Compensation Act (act) ³ 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. ⁴ We affirm the decision of the review board.

The commissioner found the following facts. ⁵ The claimant was employed as a carpenter by Vermilyn Brown for several months in 1942. ⁶ 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. ⁷

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, ⁸ 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. ⁹

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. ¹⁰ This appeal followed.

The plaintiff contends that the claimant's workers' compensation claim is governed by § 31-294 rather than by § 1330e ¹¹ 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." ¹² (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. at 175, 588 A.2d 189; Darak v. Darak, supra, 210 Conn. at 467-68, 556 A.2d 145. 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. ¹³ Accordingly, the plaintiff's 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. at 220-21, 96 A. 963. 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...