State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Gauthier v. State of Connecticut Uncas-On-Thames

CASE NO. 4779 CRB-2-04-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 1, 2005

JAMES H. GAUTHIER (Deceased)

HELENA GAUTHIER, Dependent Widow

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT

UNCAS-ON-THAMES

EMPLOYER

SELF-INSURED

and

BERKLEY ADMINISTRATORS

ADMINISTRATOR

RESPONDENT-APPELLANT

APPEARANCES:

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

The respondent was represented by Jennifer Owens, Esq., Brown, Paindiris & Scott, L.L.P., 100 Pearl Street, Hartford, CT 06103.

This Petition for Review from the January 26, 2004 Finding and Award of the Commissioner acting for the Eighth District was heard August 27, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr., and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent has petitioned for review from the January 26, 2004 Finding and Award of the Commissioner acting for the Eighth District. It contends on appeal that the trier erred by holding that the claimant, the dependent widow of the decedent James A. Gauthier, was entitled to have her benefits recalculated pursuant to our Supreme Court’s decision in Green v. General Dynamics Corp., 245 Conn. 66 (1998). We affirm the trial commissioner’s decision in part, and reverse in part with direction on remand to modify the claimant’s base compensation rate.

The following facts were stipulated by the parties. The decedent was employed by the State of Connecticut at Uncas-on-Thames Hospital, and retired in 1980. His average weekly wage at that time was $250.56. On May 30, 1990, he was diagnosed with malignant mesothelioma. He signed a voluntary agreement with his employer, which was approved on or about March 18, 1992. This agreement accepted the decedent’s condition as compensable, and set his base compensation rate at $167.04 (corresponding to two-thirds of his 1980 average weekly wage). Just over a year later, on April 30, 1993, the decedent passed away as a result of the mesothelioma. The claimant/widow was married to the decedent on the date of injury and on the date of death. As of May 1, 1993, the respondent began paying her benefits pursuant to § 31-306b at the same base compensation rate of $167.04 per week.

In 1998, the Green decision was released. There, the Court held that the enactment of § 31-310c C.G.S.1 [Public Act 90-116, § 8] on October 1, 1990, had a retroactive effect, as it had codified a method of calculating benefits that had been developed through caselaw. This established approach allowed courts to account for the lost earning power of a former employee with a long latent occupational disease who was retired and unemployed at the time of first manifestation of symptoms and of incapacity. In the case of a decedent whose mesothelioma had resulted from a period of asbestos exposure that ended in 1977, and who was retired from all employment when first diagnosed with mesothelioma in 1989, the claimant’s average weekly wage could be calculated based upon the average weekly wage that prevailed on the date of injury for similar work in the same locality. “In enacting P.A. 90-116, § 8, the legislature codified [two] methods of calculation and provided that the average weekly wage should be whichever is determined to be the greater. . . . Because § 31-310c clarifies § 31-310, it is to be applied retroactively.” Id., 78. The Court concluded that the greater of the two calculations under § 31-310c—the prevailing industry wage at the time the occupational disease was diagnosed, or the average wage from the last 26 weeks of employment—would be applicable as the claimant’s compensation rate for the 1989 injury.

The claimant took the position at trial that she was entitled to a recalculation of her benefit rate pursuant to the decision in Green. No order had ever been issued for her dependent death benefit claim under § 31-306, nor had a separate voluntary agreement been issued. The respondent countered that recalculation was inappropriate, as an approved voluntary agreement existed for the underlying claim, which governs the applicable base compensation rate for the dependent’s claim as well.

The trial commissioner agreed with the claimant’s argument. He found that a dependent’s claim is a new and separate claim distinct from the underlying claim, given the requirement that separate notice be provided pursuant to § 31-294c(a) C.G.S. See Tardy v. Abington Constructors, Inc., 71 Conn. App. 140 (2002). The trier reasoned that a separate voluntary agreement was therefore necessary. As one had not been provided, the case remained open, and was subject to the effects of Green. The trier ordered that the claimant’s base compensation rate be set at $443.52 per week, representing two-thirds of $666.28. The respondent has appealed from that decision.

This case appears to be one of first impression. The respondent posits that the derivative nature of a dependent’s claim under § 31-306 precludes the use of a different average weekly wage for the claimant, which would “essentially allow her to earn more per week than the Decedent ever did, despite the existence of a validly executed Voluntary Agreement.” Brief, p. 3. In its view, the date of injury rule controls the calculation of the dependent’s benefits, regardless of the independent notice requirements under § 31-294c C.G.S. See Tardy, supra (statutory scheme requires dependent seeking death benefit to file separate notice of claim). “The two claims may be distinct in a procedural fashion (i.e., each has to be filed separately and timely), but they are ultimately entwined in substantive ways.” Brief, p. 6. Because there was an approved voluntary agreement with respect to the decedent’s compensation rate, the respondent contends that the rate cannot be adjusted (outside of the payment of COLAs) without a showing that legal grounds exist pursuant to § 31-315 C.G.S. to modify the agreement. A subsequent legal decision that affects the interpretation of controlling law, such as Green, supra, would not satisfy that test under Marone v. Waterbury, 244 Conn. 1 (1998).

In response, the claimant observes that a dependent’s obligation to file a separate notice of claim under § 31-294c(a) prevents her from relying on the existence of a voluntary agreement for the underlying injury. In her view, an employer should not then be able to rely on that same voluntary agreement “if subsequent relevant and binding precedent reveals that the average weekly wage and compensation rate stated on that voluntary agreement were incorrect.” Brief, p. 4. “The only relevant inquiry is whether her claim for death benefits was still pending when the subsequent change in the law occurred.” Id., p. 7. As no order or voluntary agreement was issued for the § 31-306 claim, the claimant contends that Green is applicable under the Marone final judgment analysis.

Both parties make valid points with their arguments. The availability of survivorship benefits under § 31-306 is wholly predicated upon the existence of a compensable injury, and a dependent’s compensation rights do not exist unless or until the affected employee dies as a result of the occupational injury or disease. Duni v. United Technologies Corp./Pratt & Whitney Aircraft Div., 239 Conn. 19, 25 (1996). “Further, the calculation of the amount of survivor’s benefits to which a dependent may be entitled is determined as of the date of the employee’s injury and not as of the date on which the dependent becomes eligible to receive such benefits.” Id. Under § 31-296, an approved voluntary agreement has the force and effect of an award by a commissioner, and is only subject to modification under certain conditions specified by § 31-315 C.G.S. See Ciocci v. Morrison Knudsen Co., Inc., 4244 CRB-1-00-5 (June 1, 2001)(agreement may not be reopened to recalculate wage based on prior mistake of law). Our Supreme Court has explained, “The facts found in the finding and award in favor of the employee, must be accepted as facts finally found in the claim for compensation by the dependent on account of the death of the employee. All that the dependent must prove are, the employee’s death, the dependence, and the causal connection between the injury for which the employee was awarded, or was entitled to have been awarded, compensation, and the death.” Biederzycki v. Farrel Foundry & Machine Co., 103 Conn. 701, 705 (1926).

In making a claim for benefits, a dependent is required to file a separate notice of claim as per § 31-294c. Tardy, supra. The respondent is then required to respond to that claim with a timely Form 43 if it wishes to contest liability. Id. As both Beiderzycki and Tardy acknowledge, there are new factual elements to the dependent’s claim that must be proven in order to establish entitlement to benefits. In resolving these issues, a separate voluntary agreement may be prepared pursuant to § 31-296, which statute specifically contemplates that a statement of approval must be delivered to “the employee or his dependent, as the case may be.” In the alternative, a separate award establishing a dependent’s entitlement to benefits may also be obtained via the formal hearing process. The claimant here filed a Form 30C on June 10, 1993, which does not appear to have been contested. The respondent began paying benefits to the claimant without issuing a separate voluntary agreement to resolve her entitlement. Thus, with respect to that aspect of this case, there has never been a final judgment entered. Issues regarding the dependency claim may still be raised in this forum, though § 31-294c(b) would likely preclude the respondent from contesting liability due to the absence of a Form 43.

Does this, then, allow for a recalculation of the underlying compensation rate in light of the Court’s decision in Green? We answer that question in the affirmative. Though the average weekly earnings of the deceased as set by the 1992 voluntary agreement are relevant here, in setting the dependent’s compensation rate, § 31-306 does not merely refer back to the compensation rate that the deceased was receiving prior to his death. Instead, § 31-306 sets forth its own formula. As of the May 30, 1990 date of injury, the statute provided that dependents of a deceased employee were entitled to “weekly compensation equal to sixty-six and two-thirds per cent of the average weekly earnings of the deceased at the time of injury but in no case more than the maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred or less than twenty dollars weekly.”

By including this formula, the legislature has directed that a new and separate calculation of benefits be performed on behalf of the dependent seeking compensation. The determination of that compensation rate is thus one of the pending issues in this case that arose at the time the claimant became eligible for benefits under § 31-306. Although the decedent’s gross average weekly wage was established to be $250.56 by the 1992 voluntary agreement, that is not the only fact material to this issue. The parties also stipulated that the decedent retired in 1980, that his average weekly wage at that time was $250.56, and that the date of his mesothelioma diagnosis was May 30, 1990. (No evidence was offered regarding the prevailing industry wage for the decedent’s former job as of May 30, 1990). We must consider the legal ramifications of the Green decision on that set of facts in applying the § 31-306 statutory formula, as no final judgment has been entered with respect to eligibility for benefits under that statute.

When the Court’s holding in Green is taken into account, two methods of determining the decedent’s average weekly wage must be considered pursuant to § 31-310c. The dependent/claimant is entitled to the greater of (1) the average weekly wage prevailing as of the injury date in the decedent’s locality for the same or similar employment as that of the decedent, and (2) the average weekly wage earned by the decedent during the twenty-six calendar weeks he last worked, enhanced by cost-of-living increases since that date. See Belanger v. American Optical, 3353 CRB-1-96-5 (January 22, 1998)(date of injury controls dependent’s entitlement to COLAs). The claimant here proposed the use of the second method, and included a COLA calculation in her proposed findings. This calculation resulted in an average weekly wage of $666.28 as of May 30, 1990, a figure that the respondent has not specifically challenged either at trial or on appeal. The trial commissioner adopted that amount as the average weekly wage for this claim, with a resulting base compensation rate of $443.52.

Practice Book § 60-5 states that an appellate court may, in the interests of justice, take notice of plain error even though it has not been brought to the trial court’s attention by a party. Here, there has been a miscalculation of the claimant’s COLA, which has resulted in a substantial increase in the claimant’s base compensation rate payable under § 31-306. As COLAs are the product of a statutorily prescribed formula, this board has the authority to correct that interpretation of law on appeal.

In order to calculate the effect of ten years of cost-of-living increases on the decedent’s average weekly wage at the time of his retirement, the claimant simply took the $261.00 maximum weekly wage for injuries occurring on the 1980 retirement date, and divided it into the $693.00 average weekly wage for injuries occurring on May 30, 1990. The claimant then multiplied that number (265.5%) by the $250.56 average weekly wage on the date of retirement, obtaining an adjusted average weekly wage of $666.28. The trouble with that approach is that it combines figures from two different COLA tables into the same calculation. The $261.00 maximum weekly wage figure corresponds to a table that was used when benefits were based on 100% of the average production wage in the state of Connecticut, while the $693.00 maximum weekly wage figure is derived from a table that was used when benefits were based on 150% of the average production wage. These numbers have no meaningful relationship with one another.

Instead, the claimant should have used maximum weekly wages from the same table in order to determine the COLA increase between 1980 and 1990. The correct calculation would be to divide $261.00 into $462.00, which was the maximum weekly wage effective on May 30, 1990 for benefits payable based upon 100% of the average production wage. The resulting figure, 1.77%, would then be multiplied by the $250.56 average weekly wage at the time of retirement to obtain an adjusted weekly wage of $443.52 as of the May 30, 1990 date of injury. The claimant’s initial compensation rate would then be based on sixty-six and two-thirds percent of that figure as per § 31-306, or $295.68 per week. Further COLAs would then be compiled normally based on a May 30, 1990 date of injury and a base compensation rate of $295.68 per week.

The trial commissioner’s decision is accordingly affirmed in part, and reversed in part with orders that the case be remanded so that the claimant’s compensation rate may be modified in accordance with this opinion.

Commissioners A. Thomas White, Jr., and Ernie R. Walker concur.

1 On May 1, 1993, § 31-310c provided, “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 twenty-six 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.” Section 31-310, in turn, provided that “When the period of employment immediately preceding the injury is computed to be less than a net period of two calendar weeks, the employee’s weekly wage shall be considered to be equivalent to the average weekly wage prevailing in the same or similar employment in the same locality at the date of the injury . . . .” BACK TO TEXT

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