CASE NO. 3679 CRB-01-97-09
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 25, 1999
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 Ellen Aspell, Esq., Law Offices of Nancy S. Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033.
The Second Injury Fund, although not a party to this appeal, was represented at the trial level by Ernie Walker, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120, who did not appear at oral argument.
This Petition for Review from the August 28, 1997 Finding and Award of the Commissioner acting for the First District was heard September 18, 1998 before a Compensation Review Board Panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.
JESSE M. FRANKL, CHAIRMAN. The claimant1 has appealed from the August 28, 1997 Finding and Award of the Commissioner acting for the First District. In that decision the trial commissioner reviewed the claimant’s weekly benefit rate as directed by the Compensation Review Board, and determined that rate to be $579.03 plus cost of living adjustments. The trial commissioner awarded temporary total disability benefits and ongoing widow’s benefits. However, by subsequently granting in part the respondents’ Motion to Correct on December 1, 1997, the trial commissioner vacated the award of temporary total disability benefits and widow’s benefits. In support of her appeal, the claimant contends that the Board erred in its January 11, 1996 decision remanding the matter to the trial commissioner for a determination of the benefit rate. In further support of its appeal, the claimant contends that the trial commissioner erred in computing the claimant’s weekly benefit rate, specifically by failing to include a ten percent second shift premium pay and a lump sum vacation payment.
We will first set forth a brief procedural history of this case. On February 9, 1995 Commissioner Spain acting for the First District issued a Finding and Award. In that decision, the trial commissioner found that the 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; that the mesothelioma caused the decedent to be totally disabled from March 20, 1992 until his death on January 29, 1993; that the decedent was survived by a dependent spouse (the claimant); and that the decedent’s weekly benefit rate was $737.00.
Subsequently, the respondents filed a Motion to Submit Additional Evidence and an appeal from the February 9, 1995 Finding and Award. The respondents’ sole argument regarded the weekly benefit rate. In their Motion to Submit Additional Evidence, the respondents sought to present evidence of the decedent’s earnings prior to his retirement. In support of the motion, the respondents contended that the decedent’s benefit rate was improperly determined due to lack of any evidence in the record regarding his earnings. The respondents further contended that both parties erroneously assumed during the formal hearing process that the decedent’s benefit rate was at or above the applicable maximum rate.
The Board issued a decision on the respondents’ petition for review and Motion to Submit Additional Evidence in Falkowski v. International Fuel Cells Corp., 15 Conn. Workers’ Comp. Rev. Op. 119, 3016 CRB-1-95-2 (Jan. 11, 1996). In that decision, the Board concluded that there was no evidence in the record regarding the amount of the decedent’s earnings prior to his retirement, and that the respondents submitted records of the decedent’s earnings which indicated that he did not have sufficient earnings to reach the maximum rate of $737.00. The Board noted that at oral argument the claimant did not dispute this discrepancy. Because it appeared that the decedent’s weekly benefit rate was incorrect, the Board construed the respondents’ Motion to Submit Additional Evidence as a Motion to Reopen, which it granted in order to correct the claimant’s benefit rate. See Murphy v. West Haven, 14 Conn. Workers’ Comp. Rev. Op. 300, 2197 CRB-3-94-10 (Sept. 11, 1995); see also Ericson v. Perreault Spring & Equipment Co., 9 Conn. Workers’ Comp. Rev. Op. 171, 1008 CRD-5-90-4 (July 17, 1991) (a motion to reopen pursuant to § 31-315 may properly be granted in order to correct a claimant’s benefit rate).
Pursuant to the Board’s decision, a trial commissioner2 acting for the First District held formal hearings in this matter and issued a Finding and Award on August 28, 1997. In that decision, the trial commissioner found that the decedent died on January 29, 1993 as a result of mesothelioma due to asbestos exposure while employed by the respondent employer. The decedent was totally disabled from March 20, 1992 until his death, and was survived by the claimant, his dependent spouse. The trial commissioner calculated the weekly benefit rate to be $579.03 plus cost of living adjustments. This rate was based upon the prevailing weekly wage at the time of the claimant’s injury (March 20, 1992) for a position equivalent to that held by the claimant prior to his retirement.
Section 31-310c (Rev. to 1991) 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 twenty-six3 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 Green v. General Dynamics Corp., 245 Conn. 66 (1998) the Supreme Court analyzed § 31-310c which became effective October 1, 1990, and concluded that said section applied retroactively. The court explained that where a worker is diagnosed with an occupational disease while unemployed, § 31-310c provides two methods of calculating his benefit rate. Specifically, the rate shall be “the greater of (1) the average weekly wage determined pursuant to section 31-310 . . . or (2) the average weekly wage earned by the claimant during the twenty-six calendar weeks last worked by the claimant. . . .” The court explained that the average weekly wage determined pursuant to section 31-310 where the claimant has been unemployed at the time of the manifestation of the injury “shall be considered to be equivalent to the average weekly wage prevailing in the same or similar employment in the same locality at the time of injury. . . .” Green, supra, at 74-75 (quoting § 31-310).
Based upon our Supreme Court’s analysis in Green, supra, we conclude that it was proper for the trial commissioner to determine the claimant’s benefit rate based upon the higher of either (1) an equivalent prevailing wage for the claimant’s position as of March 20, 1992 or (2) his wages during the twenty-six weeks prior to retirement. The trial commissioner determined that the benefit rate based upon the claimant’s last twenty-six weeks prior to retirement would yield a benefit rate of $510.06, and thus awarded the claimant the higher rate of $579.03 based upon the first method. Subsequently, upon consideration of the respondents’ Motion to Correct, the trial commissioner vacated his award of weekly benefits, leaving only his award of funeral expenses. The trial commissioner’s decision in this regard was based upon the Appellate Court’s decision in Green v. General Dynamics Corp., 44 Conn. App. 112 (1997). As set forth above, our Supreme Court reversed that decision. We thus find that the trial commissioner erroneously granted the respondents’ Motion to Correct based upon the Appellate Court’s decision, and we therefore vacate the trial commissioner’s ruling on the Motion to Correct.
In support of her appeal, the claimant contends that the $579.03 should be increased by allowing for premium pay for second shift and for a lump sum vacation payment made to the claimant on January 31, 1986. (Claimant’s Brief at p. 4). The determination of an “equivalent” position in 1992 was made by the trial commissioner in this case based upon the weight and credibility of the evidence. The trial commissioner chose to accept the opinion of Richard Knight, from the respondent employer’s human resource department, regarding the prevailing wage for the claimant’s position as of March 20, 1992. (Findings No. 11-17). Knight testified that due to extensive changes to the position formerly held by the decedent, he “could not say” that the decedent would, in 1992, be assigned to the second shift. (Finding No. 16).
The power and duty of determining the facts rests on the commissioner as the trier of fact. We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). As the trial commissioner’s determination is supported by the evidence, we may not disturb that determination. Moreover, as to the claimant’s contentions on appeal regarding the second shift pay and vacation pay, it must be noted that the claimant has not filed a Motion to Correct. Accordingly, we are limited to the factual findings of the trial commissioner. Levey v. Farrel Corp., 3649 CRB-4-97-7 (July 30, 1998); see also Admin. Reg. § 31-301-4; Vanzant v. Hall, 219 Conn. 674, 679-80 (1991).
The trial commissioner’s December 1, 1997 ruling on the respondents’ Motion to Correct is vacated, and the trial commissioner’s August 28, 1997 decision is affirmed.
Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.
1 The respondent employer and insurer initially filed a petition for review which was subsequently withdrawn. BACK TO TEXT
2 Commissioner Spain had retired, and therefore this matter was heard by another trial commissioner. BACK TO TEXT
3 This section originally provided for the calculation of the twenty-six calendar weeks last worked by the claimant, and subsequently effective July 1, 1993 this was changed to fifty-two weeks. Based upon the date of the claimant’s injury, March 20, 1992, the twenty-six week provision applies. BACK TO TEXT