State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Simpson v. Electric Boat Corporation

CASE NO. 4989 CRB-8-05-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 31, 2006

GORDON E. SIMPSON, Deceased and HARRIET SIMPSON, Surviving dependent spouse

CLAIMANT-APPELLEE

v.

ELECTRIC BOAT CORPORATION

EMPLOYER

and

ACE USA

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

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

The respondents were represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

The Second Injury Fund was represented by Sarah Posner, Esq., Office of the Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the August 1, 2005 Finding and Award of the Commissioner acting for the Eighth District was heard February 24, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent Second Injury Fund (Fund) has petitioned for review from the August 1, 2005 Finding and Award of the Commissioner acting for the Eighth District, in which the trier ordered a transfer of liability to the Fund pursuant to § 31-349(b) C.G.S. We find error, and reverse the decision of the trial commissioner.1

The decedent worked for the respondent Electric Boat from 1964 through 1970. During that time period, the decedent was exposed to asbestos. He had also begun smoking at age 15, which led to the development of chronic obstructive pulmonary disease (COPD). Based on a report by Dr. Godar, a respondent’s medical examiner, the trier found that the decedent’s diagnosis with lung cancer in 1994 was caused in part by asbestos exposure. The decedent died of lung cancer on November 4, 1995. His surviving spouse was awarded survivor’s benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA) via an order dated April 22, 1996.

The respondents General Dynamics Corp. and CIGNA2 (respondents) sent notice to the Fund on April 12, 19953 informing it of their intent to transfer liability, as the decedent suffered from a pre-existing physical impairment at the time of his diagnosis. Renotification was sent on September 20, 1995, as required by § 31-349(e), and again on March 5, 1997, at which time the required $2000 transfer fee was paid. The Fund later contested transfer on several grounds, including that neither the employer nor its insurer had made 104 weeks of payments by July 1, 1999, which was required in order for the claim to be eligible for transfer under § 31-349(f) and § 31-349h C.G.S. The trier found that all of the statutory requirements for transfer had been met, and found the decedent’s lung cancer eligible for transfer because he suffered from the pre-existing COPD (with associated tar retention and loss of lung tissue) before developing lung cancer. He thus ordered liability to be assigned to the Fund, from which decision it has appealed.

The Fund argues in its appellate brief that the respondent ACE USA was required to pay the 104 weeks of benefits prior to July 1, 1999 in order for the claim to remain eligible for transfer. The respondents counter that the employer and insurer need only be liable for the 104 weeks of benefits in order to satisfy the eligibility requirement, whether or not compensation has actually been paid. They also note that compensability of the injury was continuously being contested, which dissuaded them from making chapter 568 payments—a detail that they had explained to the Fund in their final notice letter (“Due to the fact that the case has been handled under the [LHWCA], no benefits have been paid under the State of Connecticut Act . . . The case is under denial and therefore no voluntary agreements can be supplied”). Respondent’s Exhibit 4. In response, an agent of the Fund stated in a March 19, 1997 letter, “This matter will not be prejudiced by the fact that your notice is incomplete. Once compensability is determined you must perfect your notice pursuant to P.A. 95-277.” Respondent’s Exhibit 6. We do not construe this statement as purporting to waive all statutory prerequisites for transfer, including compliance with the July 1, 1999 eligibility deadline.

The language of § 31-349(b) allows transfer to the Fund upon notification “no later than three calendar years after the date of injury or no later than ninety days after completion of payments for the first one hundred four weeks of disability, whichever is earlier.” Section 31-349(f) provides that no claim shall be eligible for transfer to the Fund “unless all requirements for transfer, including payment of the one hundred and four weeks of benefits by the employer or its insurer, have been completed prior to July 1, 1999.” Claims in which the requirements for transfer were not met by July 1, 1999 must remain with the employer or insurer, though the ultimate legal decision on eligibility for transfer may be resolved afterward. Giaimo v. New Haven, 257 Conn. 481, 498 (2001); see also, § 31-349h. We read the statute in accordance with the principle that notice provisions under the Workers’ Compensation Act are to be strictly construed. Davis v. Norwich, 232 Conn. 311, 324 (1995); Thompson v. Roach, 52 Conn. App. 819, 823 (1999), citing Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382 (1993). We therefore must ask whether the payment of 104 weeks of benefits took place prior to that date, as no unperfected claims were eligible for transfer afterward. The Fund contends that no such disability payments were made in this case, and asserts that the statute contains no exception for contested claims.4

As the respondents observe in their brief, their payment of benefits under the Longshore Act would create a credit against any eventual liability for benefits under the Connecticut Act. McGowan v. General Dynamics Corporation/Electric Boat Division, 15 Conn. App. 615 (1988)(discussing concurrent jurisdiction between state and federal acts, and policy against allowing double recovery), aff’d, 210 Conn. 580 (1989)(per curiam). In evidence is the LHWCA decision of a federal Administrative Law Judge, which orders the employer to pay to the decedent’s estate permanent partial disability benefits from December 9, 1994 through November 4, 1995, and to thereafter pay the widow death benefits. Respondent’s Exhibit 8. The respondents’ letter to the Fund dated February 27, 1997 references that order, and asserts that benefits had been paid from December 4, 1994 forward. See Respondent’s Exhibits 4, 8. At oral argument on this appeal, the Fund’s attorney asserted that there was no proof provided by the respondents that the LHWCA payments were actually made.

Under § 31-349(b), “an accounting of all benefits paid” is one of the items that must be included with notification of intent to transfer liability, as a case is ineligible for transfer until 104 weeks of disability payments have been completed. If LHWCA payments are being set forth as a stand-in for chapter 568 payments (insofar as they create a McGowan credit), the evidence should likewise include proof of payment. Otherwise, the employer or insurer would manage to avoid that statutory requirement. Nothing in the record demonstrates that this accounting was provided to the Fund. However, there are circumstances here which excuse that omission. When the Fund stated in writing that the respondent would not be prejudiced by incomplete notice prior to a determination of compensability, it was in reply to the respondents’ assertion that they had been paying benefits under the LHWCA. Presumably, therefore, the Fund was not disputing that these payments had been made, and was not demanding additional proof in that regard.

Nevertheless, the subsequent establishment of a right to offset such benefits under state and federal caselaw does not equate to prior payment of those benefits for all purposes of the Connecticut General Statutes. The policy against double recovery that underlies such an offset right does not always signify that benefits have already been paid by the same source. See, e.g., Bilodeau v. Bristol Association for Retarded Citizens, 4245 CRB-6-00-5 (May 29, 2001)(respondents allowed to apply § 31-293 moratorium against claimant’s unpaid permanency benefits rather than against cost of medical bills paid by group health insurer, which had not pressed its statutory reimbursement rights against workers’ compensation insurer). Significantly, § 31-349 does not refer to payments made outside the Act within its eligibility provisions, saying instead that the employer or insurer “shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability.” (Emphasis added.) In contrast, with respect to the pre-existing disability, the Act explicitly offsets against benefits due “any . . . compensation payable or paid in connection with the previous disability, regardless of the source of such compensation,” thus taking a direct step to recognize benefits due both inside and outside chapter 568. If a similar cognizance of outside payments had been contemplated with regard to the 104-week notice period, it could have been addressed in like fashion.

In Goody v. Thames Valley Steel Corp., 4085 CRB-2-99-7 (October 20, 2000), the claimant had filed a chapter 568 claim based on a March 1986 injury that the respondents neither accepted nor paid out on. A commissioner denied the request to transfer the claim, which would have qualified medically under § 31-349. The claimant had also pursued a claim under the LHWCA, and was awarded benefits in 1991. Notices were then filed seeking transfer to the Fund, which request was unsuccessful due to defective notice. The trial commissioner based his denial of transfer on the fact that there is no language in § 31-349 allowing credit for non-state benefits paid.

The Goody CRB panel upheld that denial of transfer, stating, “The legislature contemplated the transfer of claims paid under the Workers’ Compensation Act. Notably, the statute provides that the employer or its insurer must first ‘pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred and four weeks of disability.’” (Emphasis in original.) Only after those payments have been completed may notice be filed requesting transfer. The respondents’ attempt to analogize Innocent v. St. Joseph’s Medical Center, 243 Conn. 513 (1998), was unsuccessful, because the claimant in Innocent had sustained a compensable injury and received workers’ compensation benefits for part of the contested period. This board identified no cases in which transfer had been allowed absent either the payment of any chapter 568 benefits or the entry of an award. “[T]here has been no compensable injury as determined by a trial commissioner, and neither have the parties entered into a voluntary agreement. . . . Based upon the above, we conclude that the trial commissioner properly denied the respondents’ request to transfer.”

Here, we do have a Finding and Award, but it was not issued until August 1, 2005. Importantly, there was also no finding made as to the decedent’s average weekly wage or corresponding compensation rate, so the amount of benefits that is owed (if any) above the previously-paid LHWCA benefits is undetermined. At this time, the respondents in effect wish to use the 2005 award to reestablish the previously paid LHWCA benefits as workers’ compensation payments based on the fact that a credit would be available against a subsequent chapter 568 award under McGowan, supra. In light of the statutory language of § 31-349 and its interpretation in Goody, we hold that the statute does not permit the respondents to use the LHWCA payments to satisfy the 104-week requirement. Thus, no chapter 568 benefits have been paid, or are as of yet due and owing for a 104-week period prior to the July 1, 1999 eligibility cutoff date.

Until a compensation rate is set, and it can be determined whether the respondents owed 104 weeks’ worth of chapter 568 benefits to the decedent prior to July 1, 1999, this case will not be eligible for transfer. If a finding is made that the decedent was entitled to chapter 568 payments in excess of the amounts paid under the LHWCA, liability may transfer to the Fund upon the accrual of 104 weeks of such liability. The case would retrospectively have been eligible for transfer within the meaning of Giaimo, supra, once the 104th week elapsed. If no benefits are due under chapter 568, the respondents’ payment of benefits under the LHWCA cannot be substituted to fulfill the 104-week payment requirement, and it will be necessary for the commissioner to deny the respondents’ request for transfer.

The Fund raises two other arguments on appeal, neither of which succeed. First, we disagree with the argument that transfer of the survivors’ claim is barred because the decedent’s death occurred after July 1, 1995. The language in § 31-349(d) specifically precludes injuries occurring on or after July 1, 1995 from serving as a basis for transfer of a claim. A dependents’ claim under § 31-306 is derivative of the employee’s compensable injury, even though there are additional facts that must be proven (death, dependence, causal connection between death and compensable injury) to establish entitlement to § 31-306 benefits, and a surviving dependent is required to file a separate notice of claim in order to pursue those benefits. Tardy v. Abington Constructors, Inc., 71 Conn. App. 140 (2002); Gauthier v. State/Uncas-On-Thames, 4779 CRB-2-04-2 (April 1, 2005).

Our Supreme Court has held that an employer or insurer need only pay 104 weeks of benefits on account of the qualifying second injury in order to establish entitlement to transfer to the Second Injury Fund, and need not repeat the statutory notice procedure or the payment of 104 weeks in order to separately transfer liability for a dependents’ claim to the Fund under § 31-349. Davis v. Norwich, 232 Conn. 311, 322-23 (1995). It follows from the Court’s holding in Davis that chapter 568 benefits payable to dependents may be combined with benefits paid to the injured employee for purposes of calculating the 104-week benefit period, as both types of payments stem from the same compensable injury. Following the employer or insurer’s payment of 104 weeks of benefits, the Fund would then be liable for all further benefits resulting from the disability or the death.

Second, we disagree with the Fund’s argument that the decedent’s pre-existing COPD must have been shown to exist prior to his exposure to asbestos at Electric Boat in order for his COPD to constitute a pre-existing injury. With regard to occupational diseases, the applicability of § 31-349 depends on the date of injury, as opposed to the date of exposure to the stimulus that caused the disease to develop. To wit: § 31-349 addresses an employee having a previous disability who incurs a second disability from a second injury. In the case of an occupational disease, § 31-275(5) defines the “date of injury” as “the date of total or partial incapacity to work as a result of such disease.” The decedent was diagnosed with lung cancer in 1994, the same year he retired from working, which became the date of his total or partial incapacity to work as a result of lung cancer.

By that time, the decedent had been smoking for over 50 years, as he was born in 1926 and began his 1½ pack-per-day habit at the age of 15. See Claimant’s Exhibits A, B. The trial commissioner accepted Dr. Gerardi’s diagnosis that COPD was a smoking-related condition. Dr. Gerardi testified that the decedent’s medical history showed that his lung impairment, including emphysema and bronchitis caused by tar build-up, was in existence prior to the development of his lung cancer. Respondent’s Exhibit 9, pp. 13-14. The trier also accepted Dr. Godar’s analysis that three-fifths of the decedent’s respiratory system impairment was related to COPD. Claimant’s Exhibit A. Dr. Godar stated that very heavy cigarette smoking was responsible for 80% of his lung cancer, with another 10% being due to asbestos exposure between 1944 and the mid-to-late 1970’s, the heaviest of which exposure was at the respondent Electric Boat. Based on these medical opinions, which the trier found credible, it is reasonable to conclude that the claimant had preexisting symptoms of COPD prior to developing his second injury, lung cancer, which was partially caused by asbestos exposure, and which resulted in disability that was made materially worse by the pre-existing COPD.

The trial commissioner’s order transferring the instant case to the Second Injury Fund is accordingly reversed, subject to further proceedings for a determination of whether the compensation rate would result in additional benefits owed.

Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno concur.

1 A Motion for Extension of Time to File Reasons for Appeal was filed on August 18, 2005 by the Second Injury Fund. That motion was granted, and the Fund’s Reasons for Appeal were filed on October 25, 2005. BACK TO TEXT

2 In ¶ A of his Findings, the trial commissioner stated that “ACE USA or its predecessors” insured the respondent employer during the course of the claimant’s employment with that company. BACK TO TEXT

3 The Finding and Award lists the notice date as April 17, 1997, but that is clearly a scrivener’s error based upon Respondent’s Exhibit 1. This uncorrected mistake has not been cited by either party as a basis of legal error, nor has it caused any apparent confusion. We are empowered to overlook this minor error on appeal. Palma v. Manuel A. Pinho Landscaping, Inc., 4047 CRB-7-99-5 (July 18, 2000). BACK TO TEXT

4 We recognize our Supreme Court’s holding in Innocent v. St. Joseph’s Medical Center, 243 Conn. 513 (1998), which states that the phrase “one-hundred-four-week-period” in § 31-349 refers to the first 104 weeks of disability, rather than the number of weeks in which the employer has paid out-of-pocket benefits. Disability is based upon medical impairment rather than loss of earning capacity. However, since July 1, 1995, the statute has referred to notice being due within “ninety days after completion of payments for the first one hundred four weeks of disability” instead of “no earlier than one year and no later than ninety days before the expiration of the first one hundred four weeks of disability.” (Emphasis added.) This change in language expressly shifted the focus from the period of disability to the period following the completion of sufficient payments. Thus, Innocent is not relevant to our analysis here. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: November 3, 2006

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