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Maloney & Maloney v. Russell Manufacturing Co.

CASE NO. 1371 CRB-8-92-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 23, 1993

MADELINE MALONEY (Dependent Widow)

and

ESTATE OF JOHN MALONEY (Deceased)

CLAIMANT-APPELLEES

CROSS-APPELLANTS

v.

RUSSELL MANUFACTURING CO.

EMPLOYER

and

CIGNA

INSURER

RESPONDENTS-APPELLANTS

CROSS-APPELLEES

and

HELMSMAN MANAGEMENT SERVICES

INSURER

RESPONDENTS-APPELLANTS

CROSS-APPELLEES

APPEARANCES:

The claimant was represented by Matthew Shafner,

Esq. and Amy M. Stone, Esq. and Mark W. Oberlatz, Esq., O’Brien, Shafner, Stuart, Kelly and Morris, P. C., P. O. Drawer 929, Groton, CT 06340.

The respondents Russell Manufacturing Company and CIGNA were represented by Lucas Strunk, Esq. and, Margaret E. Corrigan, Esq., Pomeranz, Drayton and Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

The respondents Russell Manufacturing Company and Helmsman Management Services were represented by Robert J. Enright, McGann, Bartlett and Brown, 281 Hartford Turnpike #401, Vernon, CT 06066.

These Petitions for Review from the January 13, 1992 Finding and Award of the Commissioner for the Eighth District were heard January 8, 1993 before a Compensation Review Board panel consisting of Commissioners John A. Arcudi, George A. Waldron and Donald H. Doyle, Jr.

OPINION

JOHN A. ARCUDI, COMMISSIONERS. Both parties have appealed the Eighth District decision. Respondents contest the finding that the claimant widow is a presumptive dependent of the decedent, John Maloney. The claimant attacks the denial of temporary total benefits during decedent’s lifetime.

Respondents are not here questioning the decedent Maloney’s occupational mesothelioma, contracted in May, 1988 as a result of asbestos exposure in the employment. He worked for this employer from 1948 to 1968. He then had other employment not involving asbestos exposure. A stroke in 1981 disabled him from any further work. As he was already disabled by that prior stroke, the trial commissioner denied the claim for disability benefits arising from the mesothelioma between 1988 and decedent’s death October 6, 1990. But the commissioner did award survivor’s benefits to the claimant widow.

The claimant and the decedent were married in 1949 and lived together until 1980 or 1981 when decedent’s violent behavior forced the claimant to live apart from him except for five months until July, 1990 when she took care of him during his fatal illness. During the last two months of his life, the decedent lived with his daughter, a registered nurse.

Sec. 31-306(a), C.G.S.1, as it existed on decedent’s death, contains the definition of presumptive dependent, “A wife upon a husband with whom she lives at the time of injury or from whom she receives support regularly.” The commissioner found claimant to have received regular support from the decedent in paragraph #30 of the Finding because (1) she received benefits by way of the decedent’s continual payment of the mortgage, insurance, taxes and repairs on the jointly-owned marital home occupied only by the decedent after their separation, thereby enhancing her equity therein; (2) she was a beneficiary under group medical insurance provided to the decedent free of charge by a former employer; (3) she was the ultimate beneficiary of the decedent’s pension because the decedent had elected to take a reduced retirement pension in order to allow the claimant-widow upon his death to receive a pension for the remainder of her life, and (4) she and the decedent continued to file joint tax returns and split any refunds, to their mutual financial advantage.

In Sec. 31-306, “[t]he legislature created a highly preferred class of persons conclusively presumed to be wholly dependent. In this class it naturally placed widow and children, under certain specified conditions, and declared them to be wholly dependent regardless of matters of private estate or gainful employment. In all other cases it left questions of dependency to be decided in accordance with the fact . . .” Whalen v. New Haven Pulp & Board Co., 127 Conn. 394, 396 (1940); see also Goshorn v. Roger Sherman Transfer Co., 131 Conn. 200, 202 (1944).

Respondents’ argue that a husband must make regular direct monetary payments to his wife in order to satisfy the Sec. 31-306 statutory definition of presumptive dependent that “she receives support regularly”. Domestic relations precedents, where statutorily required alimony, support or maintenance of spouse and children are at issue, disagree with that view. Valante v. Valante, 180 Conn. 528, 532 (1980), citing previous precedents, holds that support “orders may be in kind as well as in money.” Fowler v. Fowler, 156 Conn. 569, 574 (1968), declared that Social Security payments to dependents could be counted as support. Many cases hold that providing medical insurance or making the spouse or children beneficiaries of a life insurance policy may be considered as satisfying the support requirements, Leo v. Leo, 197 Conn. 1, 7 (1985); Gallo v. Gallo, 184 Conn. 36, 47 (1981). Michel v. Michel, 31 Conn. App. 338, 340 (1993).

Here, the determination of whether the wife was regularly receiving support from the husband was a factual issue for the trier to decide. The trier made that decision based on the four factors cited above. We, as an appellate tribunal, do not retry the facts, Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Unless the legal conclusions drawn from those facts result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from then, we cannot disturb those conclusions, Id. Therefore, the trier’s conclusion must stand.2

The claimant widow, or more properly, the decedent’s estate wishes total disability payments between May, 1988 and October 6, 1990, the date of death. “The purpose of temporary total disability benefits is to provide compensation for loss or impairment of earning capacity . . .,” McCurdy v. State., 26 Conn. App. 466, 469-70 (1992), rev’d on other grounds, 227 Conn. 261 (1993). As the decedent had already lost his earning capacity in 1981 due to the stroke, the 1988 cancer cannot be said to be the cause of that loss of earning capacity. Because events occurred in that sequence, the estate cannot receive benefits from the 1988 mesothelioma.

We affirm the decision below and deny both appeals.

Additionally, pursuant to Sec. 31-301c(b), we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of this appeal.

Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.

1 Public Acts 1991, No. 91-32, moved the definition of presumptive dependent from General Statutes Sec. 31-306 to Sec. 31-275(19). BACK TO TEXT

2 In amended reasons for appeal and accompanying supplemental briefs, the respondents challenge the commissioners denial of their motions to correct. Although the facts sought to be added by these motions might have been relevant to the issue of whether the claimant was dependent in fact on the decedent, they would not affect the conclusion that the claimant-widow received regular support from the decedent and therefore qualified as a presumptive dependent. This later determination is a question of whether regular support was received, not a question of its relative amount or the recipient’s need for such support. See Gagliardi v. Downing & Perkins, Inc., 152 Conn. 475, 480-81 (1965). Where the requested findings, even if granted, would not alter the legal conclusion of the trial commissioner, a motion to correct is properly denied. Hill v. Pitney Bowes. Inc., 8 Conn. Workers’ Comp. Rev. Op. 98, 832 CRD-7-89-3 (1990). BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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