CASE NO. 1651 CRB-2-93-2
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 31, 1995
CELESTINA GREEN, DEPENDENT WIDOW OF ERNEST GREEN (DECEASED)
GENERAL DYNAMICS CORP./ELECTRIC BOAT DIVISION
NATIONAL EMPLOYERS COMPANY
SELF INSURED ADMINISTRATOR
LIBERTY MUTUAL INSURANCE CO.
CIGNA INSURANCE CO.
AETNA CASUALTY & SURETY CO.
SECOND INJURY FUND
The claimant was represented by Mark Oberlatz, Esq., and Amy Stone, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., P. O. Drawer 929, Groton, CT 06340.
The respondents General Dynamics, Cigna and Aetna were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.
Respondent National Employers Co. was represented by John Greiner, Esq., Murphy & Beane, P. O. Box 590, New London, CT 06320.
Respondent Second Injury Fund was represented by Loida John-Nicholson, Esq., A.A.G., 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.
Respondent Liberty Mutual Insurance Co. was represented by Robert Brennan, Esq., Brennan & Lamar, 1 Century Tower, 265 Church Street, Suite 802, New Haven, CT 06510-7014.
This Petition for Review from the February 9, 1993 Finding and Award of the Commissioner acting for the Second District was heard February 25, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Nancy A. Brouillet and Michael S. Miles.
JESSE M. FRANKL, CHAIRMAN. The respondent employer and the respondent insurers Aetna and Cigna have petitioned for review from the February 9, 1993 Finding and Award of the Commissioner of the Second District. They contend on appeal that the commissioner: 1) improperly awarded benefits to the claimant under § 31-306; 2) improperly applied the maximum compensation rate corresponding to the date of the claimant’s decedent’s incapacity; and 3) improperly failed to award the employer reimbursement for cost of living adjustments from the respondent Second Injury Fund. We affirm the award of the trial commissioner.
The commissioner found that the decedent, Everett Green, worked for the respondent employer from 1949 until his retirement on June 17, 1978. In the course of his employment, the decedent was exposed to asbestos, as a result of which he eventually contracted mesothelioma. He was first diagnosed with that disease on July 11, 1989, and died of the cancer on December 8, 1989. The claimant had been married to the decedent since 1947 and had been wholly supported by him. The commissioner found that she was entitled to surviving widow’s benefits pursuant to General Statutes § 31-306. He determined that the rate of compensation should be based on the $272.17 weekly wage that the decedent averaged during his final 26 weeks of employment with the respondent in 1978, subject to the maximum compensation rate in force on the July 11, 1989 date of injury. He also determined that the Second Injury Fund was not obligated to contribute to cost-of-living adjustments paid on this award. The appellants appealed from these findings.
First, we address the appellants’ argument that the commissioner improperly computed the claimant’s benefits. At the time of the decedent’s death, General Statutes § 31-306 (b) (2) entitled one, wholly dependent on a deceased employee to “a weekly compensation equal to sixty-six and two-thirds per cent of the average weekly earnings of the deceased at the time of injury but in no case more than the maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred or less than twenty dollars weekly.” Section 31-310 further provided that an employee’s average weekly wage consisted of his or her average salary during the twenty-six weeks immediately preceding the week in which the employee was injured. Public Act 90-116, which was enacted subsequent to the decedent’s date of injury and death, provides that “in the case of an occupational disease which manifests itself at a time when the worker has not worked during the twenty-six weeks immediately preceding the diagnosis of such disease, the claimant’s average weekly wage shall be considered to be equivalent to the greater of . . . (2) the average weekly wage earned by the claimant during the twenty-six calendar weeks last worked by the claimant.” The appellant argues that this statute, now codified at § 31-310c, cannot be retroactively applied to the situation at hand, and that in its absence, the commissioner was without authority to refer to the decedent’s 1978 wages in computing compensation.
This assertion is refuted by our holding in Orcutt v. Ohmweave Company, 8 Conn. Workers’ Comp. Rev. Op. 125, 822 CRD-2-89-2 (1990). There, we held that a commissioner improperly used the “average weekly wage prevailing in the same locality” method authorized by subsection (1) of § 31-310c to calculate a claimant’s average weekly wage, because the effective date of the statute was October 1, 1990, and both the injury and the commissioner’s decision occurred prior to that date. We stated that the appropriate method of wage calculation before October 1, 1990 for a claimant who had not worked in the 26 weeks prior to her date of injury was to “look at the time when this employer and this employee last had an active contractual relationship,” i.e., to utilize the average weekly wage of the claimant when she last worked for the employer. Id., 129. That is, in fact, the same method authorized by subsection (2) of § 31-310c, and was the method used by the commissioner in this case. Indeed, the holding in Orcutt suggests that the latter method of calculating benefits authorized by § 31-310c clarified rather than changed the existing law, and thus would apply retroactively. See State v. Magnano, 204 Conn. 259, 278-84 (1987).
This holding is consistent with previous decisions of this Board that have established that a retiree is entitled to collect compensation for injuries resulting from occupational diseases that manifest themselves after retirement. See Deremer v. General Dynamics Corp., 11 Conn. Workers’ Comp. Rev. Op. 317, 1375 CRB-2-92-1 (1993); Orcutt v. Ohmweave Company, supra, 125. The Deremer decision, together with the wording of § 31-309, also makes it clear that the commissioner properly used the maximum compensation rate in effect on July 11, 1989, the date of the decedent’s incapacity, rather than the maximum compensation rate in effect during the last 26 weeks of the claimant’s employment with Electric Boat. Because the wage loss sought to be reimbursed by workers’ compensation is the wage loss at the time of incapacity, there is no requirement that there be a correlation between the time period implicated by the § 31-310c computation of wages and the time period whose maximum compensation rate applies. Deremer v. General Dynamics Corp., supra, 319.
As for the appellants’ claim that the Second Injury Fund should reimburse them for cost of living adjustments paid to the claimant, we agree with the Fund’s assertion that the language of § 31-306 (b) (2) [now § 31-306 (a) (2)] cannot be interpreted to extend the ultimate liability for paying COLAs in this case to the Fund. It is clear that the Second Injury Fund has potential liability for COLA payments only where a dependent receives compensation “as a result of death arising from a compensable injury occurring on or before September 30, 1977.” There is no dispute that both the July 11, 1989 date of injury found by the commissioner and the final 26 weeks of the decedent’s employment with Electric Boat occurred subsequent to that date; thus, we cannot fathom any reasonable argument the appellants might have in support of requiring COLA reimbursement from the Second Injury Fund.
The trial commissioner’s decision is affirmed.
Commissioners Nancy A. Brouillet and Michael S. Miles concur.