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Kelly v. General Dynamics Corp./Electric Boat Division

CASE NO. 3137 CRB-8-95-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 29, 1997

VALERIE KELLY, Dependent Widow of JAMES KELLY

CLAIMANT-APPELLANT

v.

GENERAL DYNAMICS CORP./ELECTRIC BOAT DIVISION

EMPLOYER

and

NATIONAL EMPLOYERS

SELF-INSURED ADMINISTRATOR

and

CIGNA

INSURER

and

AETNA

INSURER

RESPONDENT-APPELLEE

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Carolyn Kelly, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge St., P. O. Drawer 929, Groton, CT 06340.

The respondent employer and the insurers CIGNA/INA and Aetna were represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

The respondent employer and the self-insured administrator National Employers were not represented at oral argument. Notice sent to John Greiner, Esq., Murphy & Beane, P. O. Box 590, 2 Union Plaza, New London, CT 06320.

The respondent employer and Liberty Mutual were not represented at oral argument. Notice sent to Ellen Aspell, Esq., Law Offices of Nancy Rosenbaum, 655 Winding Brook Drive, P. O. Box 695, Glastonbury, CT 06033.

The Second Injury Fund was not represented at oral argument. Notice sent to Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the January 12, 1996 Supplemental Finding and Award of the Commissioner acting for the Eighth District was heard June 28, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the January 12, 1996 Supplemental Finding and Award of the Commissioner acting for the Eighth District.1 She argues on appeal that the commissioner erred by granting the respondents a credit for money recovered pursuant to a third-party suit under § 31-293 C.G.S. We agree, and reverse the trial commissioner’s decision.

In a Finding and Award dated July 20, 1995, the trial commissioner awarded dependent death benefits pursuant to § 31-306 C.G.S. to the claimant, whose late husband died of lung cancer on October 7, 1991. The decedent had been employed by Electric Boat from 1952 through 1991, and had been exposed to asbestos while working there. While providing a history to Dr. Godar in 1991, the decedent also indicated that he had been exposed to asbestos prior to his employment at Electric Boat while he was in the Navy. He was diagnosed with asbestosis in 1985, and had two-thirds of a lung removed in 1990. The lung tissue indicated that he had adenocarcinoma, which disease caused his death the following year. The commissioner found that the decedent’s workplace asbestos exposure was a substantial causal factor of the occupational disease adenocarcinoma, and that pre-existing chronic obstructive pulmonary disease and previous radiation therapy for Hodgkin’s Disease had worsened the subsequent disability. He thus awarded the claimant benefits, with liability transferring to the Second Injury Fund after the 104th week.

In a Supplemental Finding and Award dated January 12, 1996, the commissioner referred to his previous Finding and Award and the history of the decedent’s asbestos exposure that had been taken by Dr. Godar. He clarified the date of injury as being on December 14, 1990. He then found that the respondent insurers were “entitled to reimbursements and setoffs for any monies recovered by claimant as a result of claims under Section 31-293,” as well as “McGowan credits.” See McGowan v. General Dynamics Corporation/Electric Boat Division, 15 Conn. App. 615 (1988) (award under Longshoremen’s and Harbor Workers’ Compensation Act must be credited against subsequent Connecticut Workers’ Compensation Act award arising out of the same injury), affirmed, 210 Conn. 580 (1989) (per curiam). The claimant filed an appeal on the ground that credit should not have been awarded for monies recovered under § 31-293.

During the formal hearing on July 30, 1993, the claimant testified that her late husband had pursued an action against the asbestos manufacturers as a result of his lung condition, and that he or his estate had received some small settlements from different companies. Transcript, 13-14. There is nothing in the record to substantiate these payments in more detail, however, and there is no indication that the respondents in any way involved themselves in the pursuit of the decedent’s action against the asbestos manufacturers. The commissioner’s order that the respondent insurers are entitled to “reimbursements and setoffs for any monies recovered by claimant as a result of claims under Section 31-293” is commensurately vague.

There is a presumption in workers’ compensation law that the substantive law in effect on the date of an injury is the law that is applied to the proceedings of the case. Gil v. Courthouse One, 239 Conn. 676, 686 (1997). As of December 14, 1990, the date of injury in this case, § 31-293 provided that where a person other than the employer was legally liable for the circumstances of a compensable injury, an injured employee is entitled to claim compensation under the Workers’ Compensation Act and to make a civil claim for damages against such other person. An employer obligated to pay compensation under the Act is similarly entitled to bring such an action against a third party to recover any amounts paid as workers’ compensation to the injured employee. Both the employer and employee are required under the statute to notify each other if such an action is brought, with the other party having thirty days to join the action as a plaintiff. Failure to join the action results in the abatement of that party’s right of action against the third party.

There is no suggestion made that any of the respondents joined in the claimant’s action against the asbestos manufacturers, nor do the respondents suggest in their brief that the claimant failed to notify them of the action pursuant to § 31-293. Thus, it is difficult to evaluate the accuracy of the commissioner’s finding that the respondents are entitled to reimbursement pursuant to that statute. See Libby v. Goodwin Pontiac-GMC Truck, Inc., 241 Conn. 170, 178 (1997) (employer is not entitled to credit for amount of employee’s settlement with third party tortfeasor unless the employer has intervened in employee’s action against tortfeasor or brought a direct action itself). More information would be necessary before a finding could be made on compliance with § 31-293.

However, we do not believe that such a finding will be needed in this case. Also in effect on the date of the decedent’s injury was § 52-572r(c), which provides that “[n]either an employer nor, in the event the employer is insured against liability under chapter 568, the insurer of such employer, shall have any lien upon any judgment received in any product liability claim, or any right of subrogation if the claim against the third party is a product liability claim.” In Krampetz v. Uniroyal Chemical, 11 Conn. Workers’ Comp. Rev. Op. 293, 1367 CRD-5-92-1 (Dec. 8, 1993), this board held that § 52-572r(c) applies to all product liability claims where the claimant suffered a compensable injury under the Workers’ Compensation Act between October 1, 1979 (the effective date of the statute) and July 1, 1993 (the date it was repealed). The instant occupational disease claim falls between those dates.

Although the commissioner did not make a finding as to the exact nature of the decedent’s lawsuit against the asbestos manufacturers, it is apparent from the transcript and the parties’ briefs that any such suit was based on these companies’ production and distribution of asbestos materials. As such, the trial commissioner erred by finding that the respondents could receive a retroactive credit based on monies received in a product liability settlement. The only provision in § 52-572r that allows the employer any kind of credit for compensation paid is subsection (b), but it must be invoked at the time that the verdict or settlement is entered in favor of the claimant. Liens based on past settlements of claims are not allowed by the statute, and that is what the respondents would be seeking here. We reject the respondents’ contention that the trial commissioner’s alleged choice to “rethink” the Krampetz doctrine should be upheld, as the doctrine of stare decisis counsels that “a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it.” Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 296 (1997) (citation and internal quotation marks omitted). No “inescapable logic” favoring the reversal of our decision in Krampetz is present here.

The trial commissioner’s decision is reversed with respect to his ruling that the respondents receive an offset or credit under § 31-293 for monies recovered by the claimant pursuant to product liability claims.

Commissioners George A. Waldron and Robin L. Wilson concur.

1 Initially, the claimant was a cross-appellant in this matter. The respondents CIGNA and Aetna and the Second Injury Fund had both filed petitions for review from the July 20, 1995 Finding and Award of the same trial commissioner. However, both the Fund and the respondent insurers withdrew their petitions for review prior to oral argument in this matter. Thus, for the purposes of this opinion, we refer to the claimant as the sole appellant. BACK TO TEXT

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