Estate of Haburey v. Winchester ( 2014 )

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ESTATE OF ROBERT G. HABUREY v. TOWN OF
WINCHESTER ET AL.
(AC 35802)
Bear, Sheldon and Flynn, Js.*
Argued March 6—officially released May 23, 2014**
(Appeal from Compensation Review Board.)
Richard S. Bartlett, for the appellants-cross appel-
lees (defendants).
Maureen O’Doherty, for the appellee-cross appel-
lant (plaintiff).
Opinion
FLYNN, J. The defendants, the town of Winchester
(town) and the Connecticut Interlocal Risk Manage-
ment 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) respec-
tively. In this appeal, the defendants claim that the
board erred in affirming the commissioner’s determina-
tions 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 Legion-
naires’ 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 defen-
dants, 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 com-
missioner’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. Some-
times, untreated sewage would splash onto the dece-
dent 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 special-
ist. Dr. Record concluded that there was nothing signifi-
cant 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 com-
pleted by an attorney. In the space on the form cap-
tioned ‘‘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 Work-
ers’ 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, 20075 and
is titled ‘‘Dependent’s Notice of Claim’’ and, unlike form
30c, provides separate 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 rela-
tionship 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 commis-
sioner 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 survivor-
ship benefits, pursuant to § 31-306 (1) and (3) respec-
tively. 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 sub-
ject 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 determina-
tions 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 ques-
tions 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 unreason-
ably, arbitrarily, illegally or in abuse of its discretion.’’
(Internal quotation marks omitted.) Chambers v. Elec-
tric Boat Corp., 283 Conn. 840, 844, 930 A.2d 653 (2007).
Because the filing of a notice of claim implicates the
commissioner’s subject matter jurisdiction; see Kuehl
v. Z-Loda Systems Engineering, Inc., 265 Conn. 525,
534 n.14, 829 A.2d 818 (2003); we review this determina-
tion applying a plenary standard of review. O’Donnell
v. Waterbury, 111 Conn. App. 1, 5, 958 A.2d 163, cert.
denied, 289 Conn. 959, 961 A.2d 422 (2008). Additionally,
‘‘[i]t is well established that, in determining whether a
court has subject matter jurisdiction, every presump-
tion favoring jurisdiction should be indulged.’’ (Internal
quotation marks omitted.) Id.
Section 31-294c (a) provides in pertinent part: ‘‘No
proceedings for compensation under the provisions of
this chapter 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, provided, if death has resulted within two years
from the date of the accident or first manifestation of
a symptom of the occupational disease, a dependent or
dependents, or the legal representative of the deceased
employee, may make claim for compensation within
the two-year period or within one year from the date
of death, whichever is later. . . .’’
The defendants contend that our Supreme Court’s
decision in Kuehl v. Z-Loda Systems Engineering, Inc.,
supra, 265 Conn. 525, is dispositive of this appeal. In
Kuehl, the plaintiff’s husband suffered debilitating injur-
ies from a motor vehicle accident occurring in the
course of his employment. Id., 527–28. Notice of claim
was filed with the commission by the husband for work-
ers’ compensation benefits on December, 16, 1991. Id.,
528. This claim was contested by the husband’s
employer and its insurer. Id. Separately, the husband
brought a lawsuit against the driver of the vehicle that
injured him; the husband’s employer intervened in that
suit to recover benefits which it had already paid to
the husband. Id., 529. The husband died during the
pendency of that suit, on November 14, 1992, and the
plaintiff pursued her husband’s suit in her capacity as
executrix of his estate. Id.
Approximately six years later, the Kuehl plaintiff
requested a hearing for survivorship benefits in accor-
dance with § 31-294c (a), ‘‘notwithstanding her failure
to file a timely notice of claim for compensation . . . .’’
Id., 530. ‘‘Although the [husband] previously had filed
a notice of claim for compensation in connection with
his claim for workers’ compensation benefits, the plain-
tiff [in Kuehl] did not file a separate notice of claim in
connection with her claim for survivor’s benefits.’’ Id.,
530 n.8. Our Supreme Court rejected the plaintiff’s argu-
ment that service of the complaint on the husband’s
employer in the prior action against the driver satisfied
the jurisdictional requirements of § 31-294c (a). Id., 534–
35. Thus, our Supreme Court held that the plaintiff’s
failure to file notice of claim divested the commission
of subject matter jurisdiction to hear her claim. Id.,
532. The court also rejected the plaintiff’s secondary
argument that the savings provisions of subsection (c)
of § 31-294c permitted her claim to proceed.6 Id., 537.
The Kuehl court held that ‘‘[the] savings provision
addresses a ‘defect or inaccuracy’ in a notice of claim
for compensation; it does not excuse, however, the
failure to file a notice of claim.’’ (Emphasis in original.)
Id. Relying on this language from Kuehl, the defendants
in the present case contend that the commissioner was
without jurisdiction to hear the plaintiff’s claim,
because, they argue, notice of claim never was filed by
the plaintiff.
We agree with the board’s conclusion that the com-
missioner properly determined that this case is not con-
trolled by Kuehl. As discussed previously in this
opinion, Kuehl concerned the failure of a dependent to
file any notice of claim for survivorship benefits, and
whether that failure could be cured by her husband’s
previously filed notice for workers’ compensation bene-
fits. See Kuehl v. Z-Loda Systems Engineering, Inc.,
supra, 265 Conn. 537. In the present case, by contrast,
timely notice of claim was filed. The parties are in
agreement that a notice of claim was filed in this case.
The board observed that ‘‘the notice clearly states that
the claim for benefits is predicated on the death of the
claimant.’’ The question is whether that filing consti-
tuted a claim that was filed by the widow for survivor-
ship benefits.7
Our inquiry therefore reduces to determining whether
the form 30c filed on January 3, 1997, was filed on
behalf of the decedent’s estate or by the plaintiff widow.
The form does not provide space to specify which type
of benefits was being sought: benefits for an injured
worker (or his estate) or for a dependent spouse. The
form 30c filed in this case refers neither to the ‘‘estate
of Robert Haburey’’ nor to his surviving spouse, the
plaintiff. In the description section of the form, it states:
‘‘The decedent came in contact with a virus at work
which resulted in his death.’’ This reference to ‘‘[t]he
decedent’’ alerted the defendants that the notice of
claim filed pertained to claims arising from the dece-
dent’s death.
Accordingly, two possible inferences could be drawn
from the form 30c that was filed in this case. The first
inference, urged by the defendants, is that the claim
was filed by the estate of the decedent, to compensate
his estate for the decedent’s lost wages during his brief
hospitalization immediately preceding his death, and
for his medical expenses. The second inference, urged
by the plaintiff, is that the form 30c was filed on behalf of
the plaintiff for survivorship benefits as her husband’s
surviving spouse. Choosing between these two infer-
ences is a question of fact, which is within the commis-
sioner’s province. Thompson v. Roach, supra, 52 Conn.
App. 824 (‘‘[t]he power and duty of determining the facts
rest on the commissioner, the trier of facts’’ [internal
quotation marks omitted]). There is no evidence in this
record that an estate ever was opened on behalf of the
decedent on or before January 3, 1997, when notice of
claim was filed. Had the commissioner accepted the
inference urged by the defendants, the only claim would
have been for the payment of lost wages for the three
days the decedent was hospitalized preceding his death,
plus his medical expenses. The decedent was paid an
hourly rate of $15.64 and worked an eight hour shift.
Therefore, his claim for lost wages during his three
day hospitalization would have been $375.36, less any
statutory caps and less any applicable federal and state
taxes. See General Statutes §§ 31-294d and 31-307.
‘‘The [commissioner] alone is charged with the duty
of initially selecting the inference [that] seems most
reasonable and his choice, if otherwise sustainable, may
not be disturbed by a reviewing court.’’ (Internal quota-
tion marks omitted.) Sapko v. State, supra, 305 Conn.
371. In his rulings, the commissioner selected the latter
of these two inferences and determined that the form
30c was filed on behalf of the decedent’s widow, the
plaintiff, rather than on behalf of the decedent himself,
or his estate. We conclude that it was reasonable for
the commissioner to select this inference, and the
defendants have not met their burden of convincing us
otherwise. Absent an extraordinarily strong showing
that this choice was erroneous, like the board, this court
‘‘is precluded from substituting its judgment for that of
the commissioner with respect to factual determina-
tions.’’ (Internal quotation marks omitted.) McFarland
v. Dept. of Developmental Services, 115 Conn. App. 306,
315, 971 A.2d 853, cert. denied, 293 Conn. 919, 979 A.2d
490 (2009).
Moreover, the savings provision of the workers’ com-
pensation statute, § 31-294c (c), cautions against overly
technical dismissal of workers’ compensation claims.
We have held that because ‘‘workers’ compensation is
remedial legislation with a humanitarian purpose, we
liberally construe its provisions in favor of the [claim-
ant]. . . . As a result, strict compliance with a notice
of claim is not required as long as it puts the employer
on notice to make a timely investigation.’’ (Citations
omitted.) Tardy v. Abington Constructors, Inc., 71
Conn. App. 140, 149–50, 801 A.2d 804 (2002). Further-
more, our Supreme Court has held that, ‘‘sufficient
notice of claim for compensation under § 31-294c (a)
requires that the plaintiff reasonably inform the
employer or commissioner of his or her intent to pursue
a claim specifically under the state act.’’ (Internal quota-
tion marks omitted.) Chambers v. Electric Boat Corp.,
supra, 283 Conn. 856.8 We conclude that the board prop-
erly concluded that the plaintiff’s January 3, 1997 notice
of claim sufficiently put the defendants on notice of
the plaintiff’s claim for workers’ compensation survi-
vorship benefits.
We conclude that the jurisdictional requirements of
§ 31-294c (a) were satisfied in this case, in that timely
notice of claim was filed by the plaintiff with the com-
mission. The decedent died on April 12, 1996. Notice
of claim was filed with the commission on January 3,
1997. Therefore, the claim was timely filed within the
statutorily mandated one year filing period. See General
Statutes § 31-294c (a). We further recognize that the
savings provision of that statute cautions against arbi-
trary dismissal of the plaintiff’s claim. Therefore, we
affirm the board’s conclusion that the commissioner
had subject matter jurisdiction in the present matter to
hear the plaintiff’s claim.
II
We next consider whether the board erred in
affirming the commissioner’s determination that the
decedent died as a result of Legionnaires’ Disease. The
defendants contend that ‘‘the [plaintiff] failed to present
sufficient medical evidence to support the . . . com-
missioner’s conclusion that [Legionnaires’] Disease was
the cause of the sepsis which led to [the decedent’s]
death.’’ We disagree.
‘‘Before addressing the specific claims presented by
[defendants], we set forth certain general principles
pertaining to our workers’ compensation jurisprudence.
Our workers’ compensation scheme indisputably is a
remedial statute that should be construed generously
to accomplish its purpose . . . . The humanitarian and
remedial purposes of the act counsel against an overly
narrow construction that unduly limits eligibility for
workers’ compensation [benefits]. . . . To recover
under the Workers’ Compensation Act [General Stat-
utes § 31-275 et seq.], a plaintiff must prove that the
claimed injury is connected causally to the employment
by demonstrating that the injury (1) arose out of the
employment and (2) occurred in the course of the
employment.’’ (Internal quotation marks omitted.)
McFarland v. Dept. of Developmental Services, supra,
115 Conn. App. 310; see also Marandino v. Prometheus
Pharmacy, 294 Conn. 564, 591, 986 A.2d 1023 (2010).
‘‘The determination of whether an injury arose out of
and in the course of employment is a question of fact for
the commissioner.’’ (Internal quotation marks omitted.)
O’Reilly v. General Dynamics Corp., 52 Conn. App. 813,
815, 728 A.2d 527 (1999); see also Sapko v. State, supra,
305 Conn. 371.
‘‘A party aggrieved by a commissioner’s decision to
grant or deny an award may appeal to the board pursu-
ant to General Statutes § 31-301.’’ (Internal quotation
marks omitted.) McFarland v. Dept. of Developmental
Services, supra, 115 Conn. App. 310. ‘‘The appropriate
standard applicable to the board when reviewing a deci-
sion of a commissioner is well established. [T]he review
[board’s] hearing of an appeal from the commissioner
is not a de novo hearing of the facts. . . . [I]t is obli-
g[ated] to hear the appeal on the record and not retry
the facts.’’ (Internal quotation marks omitted.) O’Reilly
v. General Dynamics Corp., supra, 52 Conn. App.
815–16.
Similarly, on appeal to this court, ‘‘[o]ur role is to
determine whether the review [board’s] decision results
from an incorrect application of the law to the subordi-
nate facts or from an inference illegally or unreasonably
drawn from them . . . . [Therefore, we ask] whether
the commissioner’s conclusion can be sustained by the
underlying facts.’’ (Citation omitted; internal quotation
marks omitted.) Id., 816; see also McFarland v. Dept.
of Developmental Services, supra, 115 Conn. App. 311.
‘‘It matters not that the basic facts from which the
[commissioner] draws this inference are undisputed
rather than controverted . . . . It is likewise immate-
rial that the facts permit the drawing of diverse infer-
ences. The [commissioner] alone is charged with the
duty of initially selecting the inference [that] seems
most reasonable and his choice, if otherwise sustain-
able, may not be disturbed by a reviewing court.’’ (Inter-
nal quotation marks omitted.) Sapko v. State, supra,
305 Conn. 371; see also Gartrell v. Dept. of Correction,
259 Conn. 29, 36, 787 A.2d 541 (2002); Fair v. People’s
Savings Bank, 207 Conn. 535, 540, 542 A.2d 1118 (1988).
We conclude that the commissioner’s determination
that the decedent died as a result of Legionnaires’ Dis-
ease is sustainable in light of the underlying facts con-
tained in the record. We further conclude that the
board’s decision affirming the commissioner did not
result from an incorrect application of the law to the
facts of this case, nor from an illegal or unreasonable
inference drawn therefrom.
The commissioner concluded that ‘‘[t]he pathogen
that killed [the decedent] was Legionella.’’ The defen-
dants argue that this conclusion, ‘‘based upon testimony
of Dr. David Lawrence, the physician who treated [the
decedent] during his hospitalization, that the cause of
the sepsis which led to [the decedent’s] death was
Legionnaires’ Disease, caused by bacteria identified as
Legionella transmitted through the inhalation of con-
taminated water particles . . . lacks the support of
subordinate medical facts.’’ We disagree.
As described by the board in its decision, ‘‘Lawrence
indicated [in his deposition] that the [decedent] was
initially administered a broad spectrum of antibiotics
to counteract sepsis, and a drug known to be effective
against Legionella was added when the doctor received
the results of a lung x-ray demonstrating infiltrates in
the [decedent’s] left lower lobe. Dr. Lawrence testified
that [Legionnaires’] Disease is a known cause of sepsis;
however, the [decedent] did not live long enough to
obtain confirming laboratory results for Legionella . . .
which would have needed to be repeated in two to
four weeks.’’
Dr. Lawrence was called to testify at a formal hearing
before the commission, where he delivered essentially
the same testimony that he gave in his deposition. He
testified that his conclusion that the decedent died after
contracting Legionnaires’ Disease was ‘‘based on rea-
sonable medical probability.’’ Dr. Lawrence explained
that his opinion concerning the cause of death of the
decedent had changed since 1996 because his basis of
medical knowledge had expanded to include a greater
understanding of individual pathogens. He further
explained the differential diagnosis process he
employed which allowed him to ‘‘narrow . . . the list
of possible causes for the [decedent’s] symptoms until
he could conclude with reasonable medical certainty
that [he] died of [Legionnaires’] Disease.’’ Dr. Lawrence
testified that ‘‘Legionella was included in my differential
diagnosis when I was determining the spectrum of anti-
biotics I was using.’’ When questioned about advances
in medical technology since the decedent’s death, Dr.
Lawrence testified, ‘‘I feel that . . . [the decedent] died
of Legionella.’’9 The commissioner found Dr. Law-
rence’s testimony persuasive.10
Having thoroughly reviewed the record and the deci-
sions of the commissioner and board, we agree with
the board’s conclusion that there is ‘‘sufficient support
[in the record] for the trial commissioner’s conclusion
that the [decedent’s] death was due to [Legionnaires’]
Disease . . . .’’ ‘‘[O]ur task is not to determine whether
a conclusion different from the one arrived at could
have been reached, but rather to determine if there
was some evidence on which the [finder of fact] might
reasonably have reached its conclusion.’’ (Emphasis in
original.) Menon v. Dux, 81 Conn. App. 167, 174, 838
A.2d 1038, cert. denied, 269 Conn. 913, 852 A.2d 743,
cert. denied, 543 U.S. 1003, 125 S. Ct. 623, 160 L. Ed.
2d 463 (2004).
The defendants attempt to employ an exacting stan-
dard, contending that the commissioner’s conclusion
was erroneous because ‘‘[t]he existence of [Legion-
naires’] Disease in a patient can be confirmed by labora-
tory testing’’ and no empirical confirmation occurred
in this case. They argue that ‘‘all the laboratory studies
done at the hospital performed during [the decedent’s]
hospitalization revealed negative results.’’ Dr. Lawrence
testified, however, that the cause of the decedent’s sep-
sis could not be identified at the time of this death
because the pathogen was not recovered. In any event,
such an exacting standard of proof, as urged by the
defendants, is not required. ‘‘Unlike Aristotelian and
Thomistic logic, law does not demand metaphysical
certainty in its proofs.’’ Curran v. Kroll, 118 Conn. App.
401, 408, 984 A.2d 763 (2009), aff’d, 303 Conn. 845, 37
A.3d 700 (2012). Rather, the commissioner need only
be convinced that that it was ‘‘reasonably probable’’
that the decedent died of Legionnaires’ Disease. See
DiNuzzo v. Dan Perkins Chevrolet GEO, Inc., 294 Conn.
132, 142, 982 A.2d 157 (2009) (‘‘[t]o be reasonably proba-
ble, a conclusion must be more likely than not’’ [internal
quotation marks omitted]).
The defendants also rely on other pieces of evidence
in the record to cast doubt on the conclusion that the
decedent died of Legionnaires’ Disease. Some of the
evidence includes: one doctor’s statement that he
doubted that the decedent had Legionnaires’ Disease;
that at the time when the decedent was being treated,
hospital physicians were unable to determine the cause
of the decedent’s sepsis; a 1996 report by Dr. Lawrence
concluding that the decedent probably died from a
virus; and the fact that the decedent did not exhibit all
of the ‘‘key features’’ of Legionnaires’ Disease described
in an article referenced by Dr. Lawrence. The defen-
dants conclude by arguing: ‘‘[B]ased upon the facts pre-
sented above . . . although [Legionnaires’] Disease is
a cause of sepsis, the [plaintiff] failed to present subor-
dinate facts which support the conclusion that it was
the cause of [the decedent’s] sepsis.’’ We disagree. The
commissioner was well within his authority to choose
which evidence he found persuasive and which evi-
dence he found unpersuasive, and adjudicate the claim
accordingly. ‘‘As the fact finder, the commissioner may
reject or accept evidence . . . .’’ (Internal quotation
marks omitted.) Holmes v. G.A. Masonry Corp., 76
Conn. App. 563, 568, 820 A.2d 1071 (2003). It is not the
province of this court to second-guess the commission-
er’s factual determinations. ‘‘[T]he trier of fact—the
commissioner—was free to determine the weight to be
afforded to [the] evidence.’’ Marandino v. Prometheus
Pharmacy, supra, 294 Conn. 594. This court, like the
board, ‘‘is precluded from substituting its judgment for
that of the commissioner with respect to factual deter-
minations.’’ (Internal quotation marks omitted.) McFar-
land v. Dept. of Developmental Services, supra, 115
Conn. App. 315. Accordingly, we conclude that there
is sufficient evidence in the record from which the
commissioner reasonably could have concluded that
the decedent died of Legionnaires’ Disease.
III
Finally, we consider whether there was sufficient
medical, scientific, or epidemiological evidence for the
commissioner to conclude that the decedent sustained
an occupational disease arising out of and in the course
of his employment with the town. The defendants argue
that ‘‘[t]here was no medical or scientific evidence pre-
sented at trial to support the [c]ommissioner’s conclu-
sion that [the decedent] contracted [Legionnaires’]
Disease at his place of employment.’’ We disagree.
The commissioner concluded: ‘‘Given the peculiar
nature of daily exposure to a plethora of pathogens by
employees such as [the decedent] who work directly
with raw sewage, the sepsis caused by Legionella in
this case is considered an occupational disease. [The
decedent’s] death arose out of and in the course of his
employment.’’ Before the commissioner, Dr. Lawrence
testified that Legionella is a water-borne organism that
enters the human system through the inhalation of con-
taminated water particles. He further explained that
Legionella has been linked to infection of sewage work-
ers. Dr. Lawrence testified that ‘‘[e]ven with a broad
list of potential pathogens, regardless of my opinion of
the pathogen, I cannot think of any other place that
[the decedent] would have been where he was likely
to contact something that would do this to him.’’ Consid-
ering other potential places and sources of exposure,
Dr. Lawrence concluded that he ‘‘[could not] think of
any other source of exposure that [the decedent] had
outside of his workplace . . . . I cannot find on my
list a likely source, anything that ranks anything near
the sewage plant.’’ The commissioner concluded that
‘‘Lawrence’s opinion that [the decedent] contracted the
Legionella at his place of employment is . . . persua-
sive, especially in light of the fact that his co-workers
were similarly ill at the same time, while the general
population was not.’’11
The following findings by the commissioner are of
particular significance. The commissioner concluded
that ‘‘[t]he [decedent] worked almost exclusively in the
area of the wastewater treatment plant where the sew-
age is untreated. He was exposed to splashing of raw
sewage on his clothes and skin while raking grates and
washing tanks with high pressure hoses. The only safety
gear apparently worn or provided to the employees at
the time at issue were gloves and overshoes.’’ Given
‘‘the presence of a cool mist in the fluent pump room’’
the commissioner concluded that the ‘‘the [decedent]
was exposed to aerosolized raw sewage.’’ Lastly, the
commissioner noted that ‘‘[i]t is undisputed . . . that
[the decedent] was exposed to pathogens in the waste-
water influent at the treatment plant.’’
After a thorough review of the record and the deci-
sions of the commissioner and board, we agree with
the board’s conclusion that there is ‘‘sufficient support
for the trial commissioner’s conclusion that the [dece-
dent’s] death was due to [Legionnaires’] Disease which
he contracted while working at the wastewater treat-
ment plant.’’ We conclude that the record was adequate
for the commissioner to determine that the occupa-
tional disease arose out of and in the course of the
decedent’s employment. Although there is other evi-
dence in the record upon which a contrary conclusion
could have been reached, that is not the inquiry. We
do not retry facts. See O’Reilly v. General Dynamics
Corp., supra, 52 Conn. App. 816. Rather, our review is
limited to asking whether the commissioner’s conclu-
sion could be sustained in light of the factual record.
Id. We conclude that it is easily sustained in light of
this record.
The decision of the Workers’ Compensation Review
Board is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date or oral argument.
** May 23, 2014, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
Although the appeal in this case was filed with the caption Estate of
Robert G. Haburey v. Town of Winchester et al., we refer in this opinion
to Shirley Haburey as the plaintiff.
2
We dismiss the plaintiff’s cross appeal because she is not aggrieved by
the board’s decision. See Practice Book § 61-8; Scarsdale National Bank &
Trust Co. v. Schmitz, 24 Conn. App. 230, 233, 587 A.2d 164, cert. denied,
229 Conn. 923, 642 A.2d 1215 (1994). In so far as the plaintiff briefed two
alternative grounds for affirmance, in the interest of judicial economy, we
decide them and determine that both are meritless. The first is that the
commissioner’s decision should be affirmed because the board erred in
denying the plaintiff’s motion to dismiss the defendants’ appeal, in which
the plaintiff claimed that the defendants waived their right to appeal by
paying the award before taking an appeal to the board. The second is that
payment of the award by the defendants rendered the appeal to the board
moot. We affirm the board’s decision. We conclude, as did the board, that
General Statutes § 31-301 (f) renders these arguments unavailing. Section
31-301 (f) provides in pertinent part: ‘‘During the pendency of any appeal
of an award made pursuant to this chapter, the claimant shall receive all
compensation . . . payable under the terms of the award . . . .’’
3
Erythremia is a ‘‘[r]edness due to capillary dilation.’’ Stedman’s Medical
Dictionary (27th Ed. 2000) p. 615.
4
The defendants claim that ‘‘[o]n January 3, 1997, [the decedent] filed a
Notice of Claim . . . .’’ We find this contention unpersuasive, given that
the decedent died nearly one year before notice of claim was filed.
5
See Greenberg v. ABB Combustion Engineering Services, Inc., No. 5521,
CRB 1-10-1 (June 11, 2012).
6
The savings provision, § 31-294c (c), states in pertinent part: ‘‘No defect
or inaccuracy of notice of claim shall bar maintenance of proceedings unless
the employer shows that he was ignorant of the facts concerning the personal
injury and was prejudiced by the defect or inaccuracy of the notice.’’
7
The defendants rely on our Supreme Court’s holding in Biederzycki v.
Farrel Foundry & Machine Co., 103 Conn. 701, 704, 131 A. 739 (1926), for
the proposition that claims brought by disabled workers and claims brought
by their dependents are separate and distinct, each requiring a separate
notice of claim. The continued validity of this holding is not an issue in the
case before us. Rather, as we stated previously in this opinion, the question
we must address in this case is on whose behalf the January 3, 1997, notice
of claim was filed. The commissioner determined that the notice of claim
in this case was filed on behalf of the decedent’s widow for survivorship
benefits.
8
The defendants rely on our Supreme Court’s decisions in Chambers v.
Electric Boat Corp., supra, 283 Conn. 840, and Fredette v. Connecticut Air
National Guard, 283 Conn. 813, 930 A.2d 666 (2007), for the proposition
that a surviving spouse must file a separate notice of claim, and may not
simply rely on a notice of claim filed by an employee-spouse prior to their
death. We accept that as a proper statement of our law. For reasons explained
previously in this opinion, however, we conclude that is not the procedural
posture of the case before us. Furthermore, we are not persuaded that these
two cases are relevant to our resolution of this appeal, given that they
address when notice of claim is filed timely. See Chambers v. Electric
Boat Corp., supra, 842; Fredette v. Connecticut Air National Guard, supra,
815–16. Timeliness of filing is not an issue in the case before us.
9
The commissioner concluded: ‘‘An autopsy was performed on [the dece-
dent] and notable findings included some inflammatory process in the left
lung greater than right, and erythremia of the trachea. The finding of pneu-
monic process is consistent with Legionella.’’
10
Likewise, the commissioner found unpersuasive the testimony of the
defendants’ expert, Dr. Brian Cooper, an infectious disease specialist, who
testified that it was very unlikely that the decedent contracted Legion-
naires’ Disease.
11
A total of four employees worked in the sewage plant in April, 1996.
Two of the decedent’s colleagues were ill with symptoms very similar to
the decedents during the same time period. The fourth employee, who
worked in the lab at the plant, never became ill.