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Frederick & Frederick v. General Dynamics Corp./Electric Boat Division

CASE NO. 1776 CRB-2-93-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATIONCOMMISSION

APRIL 21, 1995

ESTATE OF ROBERT FREDERICK AND ANNE FREDERICK, DEPENDENT WIDOW OF ROBERT FREDERICK (DECEASED)

CLAIMANT-APPELLEE

v.

GENERAL DYNAMICS CORP./ELECTRIC BOAT DIVISION

EMPLOYER

and

NATIONAL EMPLOYERS COMPANY

SELF-INSURED ADMINISTRATOR

and

CIGNA PROPERTY & CASUALTY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Thomas Albin, Esq., Embry & Neusner, P. O. Box 1409, 118 Poquonnock Road, Groton, CT 06340.

The respondents were represented by Richard L. Aiken, Jr., Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

Respondent, National Employers Company was represented by John Greiner, Esq., Murphy & Beane, P. O. Box 590, New London, CT 06320. However, as they were not a party of interest to the appeal, they did not file a brief or appear at oral argument.

This Petition for Review from the June 28, 1993 Findings of Facts and Award of Compensation of the Commissioner acting for the Second District was heard June 24, 1994 before a Compensation Review Board panel consisting of Commission Chairman Jesse M. Frankl and Commissioners Nancy A. Brouillet and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the Second District Commissioner’s June 28, 1993 Findings of Facts and Award of Compensation. They contend on appeal that the commissioner improperly awarded benefits under § 31-306 and § 31-307 C.G.S. to a retiree and his dependent widow based on the average weekly wage earned by the decedent during his last 26 weeks of work with the respondent employer. We affirm the award of the trial commissioner.

The commissioner found that the decedent, Robert Frederick, was employed by the respondent General Dynamics Corp./Electric Boat Division from December 1, 1964 until January 6, 1984, when he voluntarily retired without disability or illness. The decedent was exposed to asbestos during the first nine years of that employment, however, and was diagnosed with malignant mesothelioma in 1990. He died from the disease on January 21, 1992. The respondent employer accepted that the decedent’s disease arose out of and in the course of his employment with Electric Boat, and voluntarily began making payments to the decedent’s dependent widow, Anne Frederick, under the Federal Longshore and Harbor Workers’ Compensation Act.

The decedent had filed a timely claim under our Workers’ Compensation Act as well. The commissioner awarded benefits to the decedent’s estate and the decedent’s widow pursuant to our act, allowing the respondents to take into account all payments made under the LHWCA. The commissioner also determined that the decedent’s compensation rate was $288 per week. He derived this figure from the decedent’s wages during his last 26 weeks of employment with Electric Boat in 1983-84, as the decedent had received no wages for the 26 week period prior to his 1990 date of injury. The respondents have appealed from that award.

The respondents argue that the decedent’s voluntary retirement precluded the commissioner from using the decedent’s 1983-84 pay rate to determine his average weekly wage. In their view, neither the statutes in effect at the time of the decedent’s injury nor the applicable caselaw support the use of anything other than the decedent’s earnings at the time of injury as a basis for a compensation award. We need only cite our recent holding in Green v. General Dynamics, 1651 CRB-2-93-2 (decided Jan. 31, 1995), to refute the appellants’ argument.

In Green, this Board was confronted with the same situation that it faces in this case. The decedent in Green was diagnosed with fatal mesothelioma due to work-related asbestos exposure eleven years after his 1978 retirement from Electric Boat. The commissioner awarded benefits based on the weekly wage earned by the decedent during his final 26 weeks of employment with Electric Boat. The respondents argued that the commissioner was without authority to refer to those wages in computing compensation, as § 31-310c C.G.S.1 could not be retroactively applied to the decedent’s claim. The respondents make the same argument in this case.

We held in Green that Orcutt v. Ohmweave Company, 8 Conn. Workers’ Comp. Rev. Op. 125, 822 CRD-2-89-2 (August 2, 1990), was applicable to the decedent’s situation. Before § 31-310c became effective on October 1, 1990, the appropriate method of wage calculation for a claimant who had not worked in the 26 weeks prior to his date of injury was to “utilize the average weekly wage of the claimant when she last worked for the employer.” Green, supra. We also read Orcutt as suggesting that the formula in § 31-310c(2) merely clarified existing law, in contrast to the formula in § 31-310c(1), which was a newly enacted alternative method of calculating wages. Thus, § 31-301c(2) would apply retroactively. See State v. Magnano, 204 Conn. 259, 278-84 (1987).

Because Green is factually indistinguishable from the instant case, we likewise hold here that the commissioner was entitled to determine the decedent’s average weekly wage on the basis of his 1983-84 wages at Electric Boat. We note that our decisions have established that a retiree is entitled to compensation for injuries resulting from occupational diseases that are first diagnosed after retirement. Green, supra; Deremer v. General Dynamics Corp., 11 Conn. Workers’ Comp. Rev. Op. 317, 1375 CRB-2-92-1 (Dec. 23, 1993); Orcutt, supra. The respondents’ argument that recovery in this case provides the decedent’s estate with a windfall fails to account for the fact that the decedent is prevented by the Workers’ Compensation Act from pursuing a civil action against the respondent employer for his work-related occupational disease. See § 31-284(a) C.G.S.

Consequently, if we were to bar recovery under the Workers’ Compensation Act on the basis of voluntary retirement, we would leave the claimant without any effective remedy against the employer for his injury. The constitutionality of such a result would be questionable in light of the guarantee of redress for personal injury in Article First, § 10 of the Connecticut constitution. See Daily v. New Britain Machine Co., 200 Conn. 562, 582-86 (1986). We therefore decline to adopt the respondents’ position.

The trial commissioner’s decision is affirmed.

Commissioners Nancy A. Brouillet and Michael S. Miles concur.

1 Section 31-310c C.G.S. provides: “For the purposes of this chapter, in the case of an occupational disease the average weekly wage shall be calculated as of the date of total or partial incapacity to work. However, 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 (1) the average weekly wage determined pursuant to section 31-310 and adjusted pursuant to section 31-307a or (2) the average weekly wage earned by the claimant during the fifty-two calendar weeks last worked by the claimant, which wage shall be determined in accordance with said section 31-310 and adjusted pursuant to said section 31-307a.” When originally enacted on October 1, 1990, the statute referred to 26 weeks of wages rather than 52 weeks. BACK TO TEXT

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