CASE NO. 3016 CRB-1-95-2
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 11, 1996
WANDA FALKOWSKI, DEPENDENT WIDOW OF EDWARD FALKOWSKI (DECEASED)
INTERNATIONAL FUEL CELLS CORP.
LIBERTY MUTUAL INSURANCE CO.
The claimant was represented by Brian Prucker, Esq., Prucker & Fitzgerald, 1127 Tolland Turnpike, Manchester, CT 06040.
The respondents, employer and insurer, were represented by Debra Dee, Esq. and Ellen Aspell, Esq., Law Offices of Nancy S. Rosenbaum, 655 Winding Brook Dr., Glastonbury, CT 06033.
The Second Injury Fund, although not a party to this appeal, was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Motion to Submit Additional Evidence, which was filed in conjunction with the Petition for Review from the February 9, 1995 Finding and Award of the Commissioner acting for the First District, was heard November 17, 1995 before a Compensation Review Board Panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.
JESSE M. FRANKL, CHAIRMAN. The respondents have filed a Motion to Submit Additional Evidence subsequent to filing an appeal from the February 9, 1995 Finding and Award of the Commissioner acting for the First District. The trial commissioner found that the claimant’s decedent suffered a compensable injury while working for the respondent employer, and awarded temporary total disability benefits, medical costs, and widow’s benefits. Specifically, the trial commissioner determined that the decedent’s exposure to asbestos in the workplace caused him to suffer mesothelioma, which was diagnosed on March 20, 1992; that the decedent last worked for the employer on January 31, 1986; and that the mesothelioma caused the decedent to be totally disabled from March 20, 1992 until his death on January 29, 1993. The respondents’ sole argument regards the decedent’s benefit rate, which the trial commissioner determined to be $737.00.
In their motion to submit additional evidence, the respondents seek to present evidence of the decedent’s earnings prior to his retirement. In support of the motion, the respondents contend that the decedent’s benefit rate was improperly determined due to lack of any evidence in the record regarding his earnings. The respondents further contend that both parties erroneously assumed during the formal hearing process that the decedent’s benefit rate was at or above the applicable maximum rate.
Section 31-310c C.G.S. provides:
(I)n 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.
In a case which involved similar facts to the case at hand, this board has ruled that the maximum rate is the maximum rate in effect on the date of the decedent’s incapacity, rather than the maximum rate at the time of the decedent’s earnings. Green v. General Dynamics Corp., 13 Conn. Workers’ Comp. Rev. Op. 113, 1651 CRB-2-93-2 (Jan. 31, 1995). Thus, the trial commissioner properly found the maximum rate to be $737.00, based upon the date of the decedent’s incapacity which occurred on March 20, 1992.
However, in the instant case, there is no evidence in the record regarding the amount of the decedent’s earnings prior to his retirement. The respondents have submitted records of the decedent’s earnings which indicate that he did not have sufficient earnings to reach the maximum rate of $737.00. At oral argument, the claimant did not dispute this discrepancy. This tribunal has ruled that a motion to reopen pursuant to § 31-315 may properly be granted in order to correct a claimant’s benefit rate. Ericson v. Perreault Spring & Equipment Co., 9 Conn. Workers’ Comp. Rev. Op. 171, 1008 CRD-5-90-4 (July 17, 1991). Because it appears that the decedent’s weekly benefit rate is incorrect, we will construe the respondents’ Motion to Submit Additional Evidence as a Motion to Reopen. See Murphy v. West Haven, Case No. 2197 CRB-3-94-10 (decided September 11, 1995).
The respondents’ motion to reopen is granted. This matter is remanded to the First District in order to determine the decedent’s benefit rate in accordance with the above.
Commissioners Roberta Smith Tracy and Amado J. Vargas concur.