Krampetz v. Uniroyal Chemical

The claimant was represented by Lindalea P. Ludwick, Esq., Sklarz, Early and Avallone, P.O. Box 1872, New Haven, CT 06508.

The respondent was represented by Robert G. Montstream, Esq. and F.X. Drapeau, Esq., Montstream and May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033.

This Petition for Review from the January 2, 1992 Memorandum of the Commissioner for the Fifth District was heard January 22, 1993 before a Compensation Review Board panel consisting of Commissioners John A. Arcudi, Donald H. Doyle, Jr. and Roberta S. D’Oyen.

OPINION

JOHN A. ARCUDI, COMMISSIONER. This employer’s appeal contends that Sec. 52-572r(c), C.G.S. does not apply to the decedent’s December 7, 1981 injury, malignant mesothelioma, and subsequent death February 4, 1982. Sec. 52-572r(c) became effective October 1, 1979 but this decedent retired from employment with this employer in 1976. Sec. 51-572r(c) was in effect from October 1, 1979 until July 1, 1993. It states “[n]either an employer nor . . . 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.”

If Sec. 31-293, C.G.S. applies and Sec. 52-572r(c) does not, then the employer is entitled to an offset or credit against future workers’ compensation benefits in the amount of the net proceeds from the settlement of third party product liability actions. These third parties were the producers, distributors or sellers of asbestos products to which the decedent was exposed in the employment, and they caused his fatal occupational disease.

The decedent’s estate and his surviving dependent widow filed a workers’ compensation claim in 1983, the year after his death, and also pursued third party product liability court actions for damages. The plaintiff in those actions did notify the employer respondent of them as would have been required under Sec. 31-293. Sec. 31-293 gives employers rights of subrogation and reimbursement against third party tortfeasors. Between 1983 and 1987 all third party claims were settled.

The commissioner ruled that Sec. 52-572r(c) did apply and that the employer had no right to an offset against third party recoveries. If 31-293 pertains, the employer is entitled to a credit. Enquist v. General Datacom, 218 Conn. 19 (1991). If 52-572r(c) pertains, then no credit is permitted. Rodia v. Tesco Corporation, 11 Conn. App. 391 (1987). No appellate court has addressed whether the 1979 bar to employer credit in product liability claims applies when the employment started before 1979 and the injury or its first manifestation occurred after 1979.

There is currently a split of authority at the trial court level. Several courts have held that the date of commencement of employment controls. See Pigott v. Johns-Manville Corp., No. H-80-281 (D. Conn. October 29, 1984); Spearin v. Cassiar Resources, 6 Conn. Super. Court Reports 517 (May 6, 1991); Christie v. Victor Automotive Products, Inc., 2 Conn. Super. Ct. Reports 807 (June 30, 1987). Other courts have held that the date of injury determines whether Sec. 52-572r bars an employer’s claims. See Ibrahimi v. United Textile, 7 Conn. Super. Ct. Reports 730 (May 21, 1992); Bishop v. Navistar International Inc., 6 Conn. Super. Ct. Reports 440 (March 1, 1991); Regonini v. Southland Containers, 3 Conn. Super. Ct. Reports 886 (October 20, 1988); Gisolfi v. Eagle Belting Co., 3 Conn. Super. Ct. Reports 804 (September 14, 1988); Boisseau v. Judson Computers, Inc., 2 Conn. Super. Ct. Reports 930 (August 12, 1987); Wasilewski v. General Motors Corp., 2 Conn. Super. Ct. Reports 332 (February 13, 1987). We join the latter line of cases holding that Sec. 52-572r controls if it was in effect on the date of injury.

An employer’s Sec. 31-293 right to recover is a right derived from the employee. Olszewski v. State Employees’ Retirement Commission, 144 Conn. 322, 325 (1957). This right does not arise until the employee is injured and has a claim or cause of action. Stavola v. Palmer, 136 Conn. 670, 678 (1950); Southland Corporation v. Self, 36 Conn. Sup. 317 (1980). In the case of an occupational disease, the right and obligation to file a claim arises upon a known manifestation of a symptom. Bremner v. Eidlitz & Son, Inc., 118 Conn. 666 (1934); Prisco v. North & Judd, 10 Conn. Workers’ Comp. Rev. Op. 154, 1190 CRD-8-91-3 (1992). This is the date of injury for purposes of the filing of a claim.

The derivative nature of the employer right coupled with the “date of injury rule” for determining rights and obligations of parties under the Workers’ Compensation Act (see generally Iacomacci v. Trumbull, 209 Conn. 219, 222-23 (1988) ) causes the date of injury to control whether Sec. 52-572r applies. Here the date of injury was after October 1, 1979. Therefore the employer may not claim any credit or offset against third party product liability proceeds.