CASE NO. 3504 CRB-02-96-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 9, 1998
BEVERLY L. JORGENSEN, Executrix of the Estate of LORETTA PYRDOL, Dependent Widow of DANIEL PYRDOL (Deceased)
GENERAL DYNAMICS CORPORATION/ELECTRIC BOAT DIVISION
AETNA LIFE & CASUALTY
SECOND INJURY FUND
The claimant was represented by Nathan J. Shafner, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge Street, P. O. Drawer 929, Groton, CT 06340.
The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.
The Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.
These Petitions for Review from the December 20, 1996 Finding and Award of Compensation by the Commissioner acting for the Second District were heard September 5, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.
JESSE M. FRANKL, CHAIRMAN. The claimant and the respondents have each petitioned for review from the December 20, 1996 Finding and Award of Compensation by the Commissioner acting for the Second District. The claimant has challenged the compensation rate awarded by the trier, while the respondents maintain that the decedent’s exposure to asbestos at Electric Boat was not a cause of his mesothelioma, and that the claimant is entitled to neither dependent death benefits based on the compensation rate in § 31-310c nor cost-of-living adjustments. We affirm the trial commissioner’s decision on all issues raised in the respondents’ appeal, and remand this case for an articulation concerning the method used to determine the claimant’s compensation rate.
The trial commissioner issued a very thorough decision in this matter. The essence of her findings is as follows: the decedent served in the U.S. Navy from 1935 through 1956, and worked for the respondent Electric Boat from 1956 until his early retirement in 1977. He testified that he was not exposed to a tremendous amount of asbestos while in the Navy, but was exposed to a lot of asbestos during the first 13 years of his employment with Electric Boat. He was diagnosed with malignant mesothelioma on June 22, 1993, the date that symptoms of that disease first clearly manifested themselves. The decedent died of mesothelioma on January 28, 1994, several weeks after his 79th birthday.
Dr. Godar, testifying at the behest of the respondents, opined that the decedent’s mesothelioma was caused by asbestos exposure. He distinguished the more virulent crocidolite asbestos fiber, which was very heavily used in the shipbuilding industry before the 1960’s, from the less dangerous chrysatile asbestos fibers that were “employed at the Electric Boat Shipyard in large measure.” See Findings, ¶ 42, citing Respondent’s Exhibit 2. He also stated that the normal latency period between exposure and manifestation of mesothelioma symptomalogy is 30 years, and that the severity of the exposure, and not its duration, is the key factor in causing a malignancy to develop. In his opinion, it was “perfectly reasonable to assume that the Navy exposure was the entire mechanism of initiating the patient’s mesothelioma.” Id. However, he ascribed 20% of the responsibility for causation to the Electric Boat shipyard exposure as well, conceding that there was no actual way to tell which of the asbestos fibers encountered by the decedent between 1935 and 1969 mutated his cellular DNA. Findings, ¶ 44.
Dr. Cullen, meanwhile, noted that the decedent had considerable exposure to asbestos fibers at Electric Boat, as well as intermittent exposure while he was in the Navy. He also believed that asbestos exposure was the sole cause of the decedent’s death, but thought that the Electric Boat exposure most likely caused his condition. Findings, ¶ 56, citing Claimant’s Exhibit T. He disagreed with Dr. Godar’s assumption about the types of fibers the decedent was likely exposed to, stating that “in the early days after the war . . . submarines were made with all types of asbestos . . . [and] at the shipyard people often got exposed without protection until the 1970’s.” Findings, ¶ 60. Thus, he did not find a basis for distinguishing between the two periods of employment in terms of the types of fibers to which the claimant would have been exposed. He also thought that mesothelioma’s latency period began at 15-20 years and leveled off afterward, so that the decedent’s exposure at Electric Boat was probably a substantial factor in causing him to develop that condition.
The trial commissioner accepted the opinion of Dr. Cullen over that of Dr. Godar, insofar as she concluded that the decedent was exposed to asbestos dust and fibers at Electric Boat, and that said exposure caused him to develop mesothelioma. Findings, ¶¶ B-D. She went on to discuss the effect of § 31-310c on this case, reasoning that the claimant’s compensation rate should be based on the gross weekly wage earned by the decedent during his last 26 weeks of employment with Electric Boat in 1977. She also ruled that the claimant’s base compensation rate of $240.421 was subject to cost-of-living adjustments. Both parties filed petitions for review from that decision.
It is very well-settled that the power and duty of determining the facts of a workers’ compensation case rests upon the trial commissioner. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). As the judge of the credibility of the witnesses and the evidence, she is entitled to choose among conflicting medical opinions, and is not required to credit any person’s testimony, even if uncontradicted. Kish v. Nursing & Home Care, Inc., 47 Conn. App. 620, 627 (1998); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). We may not disturb the factual findings of the trier unless they are without basis in the evidence, or unless undisputed material facts have been omitted from the findings. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). We may not disturb the trier’s legal conclusions unless they result from an incorrect application of the law to the subordinate facts, or unless they have evolved from an illegal or unreasonable inference drawn from those facts. Keenan v. Union Camp Corp., 49 Conn. App. 280, 282-83 (1998).
Applying that standard of review, it is manifest that we cannot accept the respondents’ proposed rationale for reversing the trier’s finding that the asbestos exposure at Electric Boat was a significant cause of the decedent’s mesothelioma. The respondents simply state that “Dr. Godar’s opinion is more authoritative, reliable and credible in regard to the diagnosis, cause and latency period of the mesothelioma;” Brief, p. 10; while the Second Injury Fund basically argues that, because the period of exposure that could have produced the cell-altering asbestos fiber was comprised of 21 years in the Navy and only 13 at Electric Boat, it was illogical for Dr. Cullen to state that the Electric Boat exposure was probably the cause of the decedent’s disease. Those are not grounds upon which a review board could declare the reports of Dr. Cullen legally unreliable. See Keenan, supra; Rogers v. Laidlaw Transit, Inc., 45 Conn. App. 204 (1997). We would not presume to describe Dr. Cullen’s diagnosis as a simple mathematical comparison between two sums of years of exposure, especially where the decedent’s history indicated that the severity and frequency of those exposures was not identical. The trier’s findings regarding the cause of the decedent’s mesothelioma must stand.
As for the issue regarding the applicability of § 31-310c to this case, we agree with the analysis of the trial commissioner in her Memorandum of Decision: there is no valid reason to presume that § 31-310c was not intended to apply to dependent death benefits awarded under § 31-306. The Supreme Court has recently voiced its agreement with this position as well. In Green v. General Dynamics Corp., 245 Conn. 66 (1998), the Court not only held that § 31-310c was applicable to the case of a dependent widow seeking compensation for her late husband’s death from mesothelioma that first manifested itself long after he had retired from Electric Boat; the Court also held that the statute was merely a clarification of the existing law, and that it should be applied retroactively. Thus, the issue regarding the applicability of § 31-310c to this claim has been settled in favor of the claimant. See also, Jordan v. General Dynamics Corp./Electric Boat Division, 3206 CRB-8-95-11 (August 18, 1998).
Finally, we address the calculation of the claimant’s compensation rate. Based on our recent decision in Belanger v. American Optical, 3353 CRB-1-96-5 (Jan. 22, 1998), it is clear that the June 22, 1993 date of the decedent’s injury controls the calculation of survivor’s benefits. Thus, the trier correctly ruled that the claimant is entitled to COLAs as of October 1, 1993.
The trier calculated the base compensation rate itself by looking only at the wages earned by the claimant during his last 26 weeks of employment, as prescribed by § 31-310c(2). This figure resulted in a base compensation rate of $240.42, which would be augmented by COLAs beginning on October 1, 1993. We do not agree with the claimant’s assertion in her Motion to Correct that her base compensation rate should be increased by $399 in COLAs (presumably representing the COLAs that the claimant would be receiving if we treated the date of injury as July 1977, the last date he worked). COLAs are calculated by comparing the maximum weekly wage on the date of injury with the maximum weekly wage in effect at some later date. The date of injury in this case is June 22, 1993, not July 1977. The only COLAs that the claimant is entitled to are those based on changes in the maximum weekly wage after June 22, 1993.
We do agree with the claimant’s assertion, however, that § 31-310c provides an alternate method of determining the weekly compensation rate where an injured employee does not work during the 26 calendar weeks preceding his injury. Under § 31-310c(1), which refers back to § 31-310, the trier must also look at “the average weekly wage prevailing in the same or similar employment in the same locality at the time of the injury” when calculating a claimant’s compensation rate. If such wage is greater than the wages earned by the employee during the last 26 weeks of his employment, it must be utilized as the claimant’s average weekly wage.
Here, the trier found that the decedent would have been earning $16.20 per hour had he continued to work in his position at Electric Boat as a technical aide on June 21, 1993. Findings, ¶ 84. Her conclusions, however, do not discuss the use of the “same or similar employment” method of calculating the claimant’s average weekly wage. The claimant raised this issue in her Motion to Correct, but the record does not contain a transcript of the hearing on that motion, and we are unclear as to why the trier rejected the use of that method. It would appear that the claimant’s compensation rate would be greater if the method in § 31-310c(1) were used instead of that in § 31-310c(2). Thus, we remand this matter to the trial commissioner for an articulation of her reasoning on this issue. See Jordan, supra.
Commissioners James J. Metro and John A. Mastropietro concur.
1 This amount was prescribed by the trier in her March 12, 1997 ruling on the claimant’s January 3, 1997 Motion to Correct. The trier also filed a Memorandum of Decision on March 12, 1997 in conjunction with her denial of the Respondents’ January 8, 1997 Motion to Correct. BACK TO TEXT