Greenberg v. ABB Combustion Engineering Services, Inc.
Although the trial commissioner reasonably might have inferred that the date of first manifestation of a symptom of an occupational disease under C.G.S. §31-294c (a) occurred upon receipt of a medical report, she retained the discretion, based on the evidence, to select an earlier date. Avrom Greenberg, former employee of ABB Combustion Engineering Services, passed away from pancreatic cancer on Feb. 20, 2001. A notice of claim, Form 30C, filed on Nov. 7, 2001, named Avrom Greenberg as claimant and described the injury as "employment exposure to radiation and other chemicals resulting in death." The form did not name his widow, Virginia Greenberg, or specify that survivor's benefits were sought. Virginia's claim was discussed at an informal hearing on April 3, 2003. A second Form 30C filed on Aug. 28, 2003 bore Virginia's name. The trial commissioner found that the Nov. 7, 2001 notice of claim was timely filed within one year of death and sufficed to place the respondents on notice of Virginia's claim. The second Form 30C was found untimely. The commissioner found Daniel Greenberg,Virginia and Avrom's son, not credible as to a 2003 date claimed for forming a belief as to the cancer's cause and determined it was by Sept. 1, 2001. On Sept. 2, 2001, Daniel filed a federal claim under the Energy Employees Occupational Illness Compensation Program, 42 U.S.C. §7384, with 1600 pages of documents. The claimant and respondents, including ABB Combustion, Broadspire/CNA, appealed. The Compensation Review Board affirmed the commissioner's ultimate decision. The board agreed with the respondents that Virginia was required to file her own claim for benefits but found the occupational disease provisions of C.G.S. §31-294c(a) applied, which require notice "within three years from the first manifestation of a symptom of the occupational disease." The board inferred that the commissioner determined that the "first manifestation of a symptom" occurred by Sept. 1, 2001. The commissioner retained the discretion to select that date rather than the 2003 date of a medical report. Both notices were filed within three years of Sept. 1, 2001. The commissioner's finding that the second notice was untimely was reversed. Both form 30Cs provided sufficient notice under the board's 2007 decision in Berry v. State Department of Public Safety.