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CASE NO. 1345 CRD-1-91-11
COMPENSATION REVIEW BOARD/DIVISION
WORKERS’ COMPENSATION COMMISSION
JANUARY 27, 1994
DOROTHY LACHANCE, Administrator of the Estate of ROBERT LACHANCE
DOROTHY LACHANCE, Individually
UNITED TECHNOLOGIES CORP./ PRATT & WHITNEY AIRCRAFT DIV.
LIBERTY MUTUAL INSURANCE COMPANY
SECOND INJURY FUND
The claimant was represented by Andrew A. Feinstein, Esq. and Robert J. Gorman, Jr., Esq., Krevolin and Feinstein, P.C., 21 Woodland Street, Hartford, CT 06105.
The respondent-employer and respondent-insurer did not appear or file a brief.
The Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06101-0120.
This Petition for Review from the November 27, 1991 Amended Finding and Award of the Commissioner At Large acting for the First District was heard November 20, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners John A. Arcudi and Frank J. Verrilli.
JESSE FRANKL, CHAIRMAN. The respondent Second Injury Fund has petitioned for review of the November 27, 1991 Amended Finding and Award of the Commissioner at Large acting for the First District. The trial commissioner concluded that the portion of an award of permanent partial disability benefits remaining unpaid at the time of an injured worker’s death must be paid to his married, adult daughter. The Second Injury Fund argues that the unpaid permanency award does not survive the employee’s death and that it was improper to order payment of the award to the daughter who was the decedent’s only presumptive dependent at the time of the injury but who no longer qualified for dependency payments at the time of the employee’s death. While we do not agree that the permanency award failed to survive the injured employee’s death, we agree that the remaining, unpaid portion of the award should not go to the daughter. Further, we reject the Second Injury Fund’s argument that no claimant is entitled to payment of the unpaid balance of the award. Accordingly, we modify the commissioner’award to require that the remaining, unpaid portion of the decedent’s award of permanent partial disability be paid to the decedent’s estate.
The parties stipulated to the following facts before the trial commissioner. On February 14, 1981, Robert LaChance sustained an injury to his right knee arising out of and occurring in the course of his employment with the respondent-employer. Claimant Dawn McDermott, then Dawn LaChance, is the daughter of Robert LaChance. At the time of the injury, Dawn McDermott was a dependent of Robert LaChance.1 Dawn McDermott was born November 7, 1963. She was married on September 15, 1984 and was not dependent on Robert LaChance at the time of his death.
Claimant Dorothy LaChance married Robert LaChance on September 26, 1987. She was not dependent on Robert LaChance at the time of his injury. She was his spouse at the time of his death on May 25, 1989. Dorothy LaChance appears in this case as a claimant both in her individual capacity and in a representative capacity as the administrator of the estate of Robert LaChance.
At a hearing held on September 26, 1988, the Commissioner for the First District ordered the respondent-insurer to pay specific indemnity benefits to Robert LaChance for a 40% permanent partial disability of his right knee and ordered that these payments commence on September 30, 1988. Robert LaChance elected to receive and the insurer agreed to pay the permanent partial disability benefits at an accelerated rate. At the time of Robert LaChance’s death on May 26, 1989, a total of 44.021 weeks of specific indemnity had not been paid to Robert LaChance.
On November 20, 1989, the parties agreed that the Second Injury Fund would assume full responsibility for payment in this case as of February 28, 1985.
Based on the foregoing facts, the trial commissioner concluded that the decedent’s right to the specific payments became vested during his lifetime as of the date of maximum medical improvement and that the portion of the award allocable to the time period after his death was payable to the decedent’s dependents pursuant to General Statutes Sec. 31-306. Thereupon, the commissioner determined that claimant Dawn McDermott, as the only presumptive dependent of the decedent, was entitled to payment of the vested, unpaid award of 44.021 weeks of permanent partial disability benefits.
On appeal, the Second Injury Fund raises numerous challenges to the decision of the trial commissioner. The arguments raised by the Second Injury Fund may be summarized as follows: (1) a permanency award does not survive the death of an injured employee; (2) if such an award does survive the death of an injured employee, its distribution is controlled by Sec. 31-306; (3) Dawn McDermott, although a presumptive dependent at the time of injury, was no longer entitled to payment due to her age and marriage at the time of the employee’s death; (4) Dorothy LaChance, individually, although a surviving spouse was not entitled to payment because she was not a dependent at the time of injury; and (5) the estate of Robert LaChance only has a claim for benefits payable up to the date of death and therefore cannot claim the unpaid portion due post mortem.2 We now turn to these claims.3
The Second Injury Fund first claims that the Workers’ Compensation Act, as it existed at the time of injury, does not permit the survival of an ongoing permanency award past the injured employee’s date of death. This argument was recently addressed and rejected in Cappellino v. Cheshire, 226 Conn. 569, 575-77 (1993). In Cappellino, our Supreme Court held that “the balance of a permanent partial disability award passes to an employee’s dependents if the employee dies of unrelated causes before the award is paid in full.” Id., 577.
In determining who is entitled to payment of the balance of a permanency award if an employee dies before the award is paid in full, our Workers’ Compensation Act presently provides that such award “shall be paid . . . in the event of the employee’s death, to his surviving spouse or, if he has no surviving spouse, to his dependents in equal shares or, if he has no surviving spouse or dependents, to his children, in equal shares, regardless of their age.” General Statutes Sec. 31-308(f). This provision, which designates the class of people to whom awards of permanent partial disability benefits survive, was added to our law in 1989. Because the injury in this case predates the effective date of that provision, it does not apply to the present case. Cappellino v. Cheshire, supra, 576; McCurdy v. State of Connecticut, 9 Conn. Workers’ Comp. Rev. Op. 22, 23, 887 CRD-4-89-6 (1991), aff’d., 26 Conn. App. 466 (1992), rev’d on other grounds, 227 Conn. 261 (1993). Consequently, in determining who is entitled to payment of specific benefits for loss of body parts which vested at a maximum medical improvement date during the injured worker’s lifetime and are allocable in part to time periods after the worker’s death, we must look to the provisions of General Statutes See. 31-306.
Under our Workers’ Compensation Act there are two classes of dependents, “presumptive dependents” and “dependents in fact.” General Statutes (Rev. to 1981) Sec. 31-306(a) provided in pertinent part: “The following described persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee and are referred to hereinafter as presumptive dependents: (1) A wife upon a husband with whom she lives at the time of injury or from whom she receives support regularly . . . (3) any child under the age of eighteen years . . . upon the parent with whom he is living or from whom he is receiving support regularly, at the time of the injury of such parent . . . . In all other cases where there is no presumptive dependent, questions of dependency shall be determined in accordance with the fact, as the fact may be at the time of injury.” Presumptive dependents are “a highly preferred class of persons.” Whalen v. New Haven Pulp & Board Co., 127 Conn. 394, 396 (1940). “In no case can a ‘dependent in fact’ displace the compensation claims of a presumptive [dependent] . . . .” Collier v. Milford, 206 Conn. 242, 247-48 n. 7 (1988).
The trial commissioner determined that Dawn McDermott, as the sole presumptive dependent of the decedent, was entitled to the unpaid balance of her father’s permanency award. This conclusion, however, does not properly account for the payment scheme set forth in General Statutes (Rev. to 1981) Sec. 31-306(b)(5). While Sec. 31-306(b)(5) does establish that “if there is no surviving presumptive dependent spouse at the time of the death of the employee, but there is at either time one or more presumptive dependent children, the compensation shall be paid to such children as a class, each child sharing equally with the others,” the statute goes on to provide that such compensation is paid “until such child reaches the age of eighteen or dies before reaching said age . . . [or] up to the attainment of the age of twenty-two if unmarried and a full-time student . . . .” Since Dawn McDermott was married and 25 years of age at the time of her father’s death, she no longer possessed a right to payment of compensation pursuant to Sec. 31-306.4
Likewise, the statute did not authorize payment to Dorothy LaChance as the surviving widow of the injured worker. First, Dorothy LaChance qualified as neither a presumptive dependent nor a dependent in fact because she had no relationship with Robert LaChance, whether by marriage or dependence, at the time of the injury. Consequently, she could make no claim under Sec. 31-306. Second, while Sec. 31-308(f) recognizes the rights of a surviving spouse without reference to dependency status at the time of injury or otherwise, we have already concluded that that provision is inapplicable to the facts of this case, as the injury predates its effective date. Cappellino v. Cheshire, supra; McCurdy v. State, supra.
Having concluded that neither the decedent’s daughter nor his widow are eligible to receive the unpaid permanency award, we now turn to the Second Injury Fund’s final claim, namely, that the estate has a right only to that permanency which by its terms was payable before his death. This argument was recently addressed and rejected by our Supreme Court in McCurdy v. State, 227 Conn. 261, 269-70 (1993). “Where, as here, there are no dependents [entitled to payment], . . . a permanent partial disability award that became due to the decedent before his death is payable to the estate.” Id., 270.
We, therefore, modify the decision of the trial commissioner to require the Second Injury Fund to pay the vested and unpaid permanent partial disability in the amount of 44.021 weeks to claimant Dorothy LaChance in her representative capacity as administrator of the estate of Robert LaChance.
Commissioners John A. Arcudi and Frank J. Verrilli concur.
1 The stipulation of the parties states that Dawn McDermott was a dependent of Robert LaChance at the time of the injury. Because she was also his daughter, she very well may have been a “presumptive dependent” as that term is used in General Statutes Sec. 31-306(a). The trial commissioner appears to have addressed the issues presented to him based upon a finding that Dawn McDermott was a presumptive dependent. Because that finding has not been challenged and because it is not based on an unreasonable inference from the facts as stipulated, we accept it as true for purposes of this appeal. See also footnote 4, infra. BACK TO TEXT
2 The last two arguments by the Second Injury Fund are found in its reply brief and are in response to arguments raised by the claimants in their appeal brief. Although Dorothy LaChance did not properly challenge the commissioner’s failure to award benefits to her in her individual capacity or in her representative capacity by filing a cross-appeal, the claimants did clearly raise the issue in their brief as an alternative disposition to that ordered by the trial commissioner. Because the circumstances of this case are such that justice requires that we address these arguments; see Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 577-78 (1984); and because the issues have been fully briefed by both parties; see DiSesa v. Hickey, 160 Conn. 250, 262-63 (1971); we will address these arguments and will, if appropriate, grant relief to a claimant notwithstanding the fact that the denial of such relief by the trial commissioner was not made the subject of a cross-appeal by the filing of a petition for review. BACK TO TEXT
3 The Second Injury Fund also contends that the trial commissioner improperly denied its Motion to Correct. Its arguments in this regard are part and parcel of the arguments summarized above and addressed in this opinion. Therefore, it would serve no useful purpose to separately address these claims concerning the Motion to Correct. BACK TO TEXT
4 Even if Dawn McDermott was not a presumptive dependent at the time of the injury but was instead a dependent in fact; see footnote 1, supra; she still would not have qualified to receive compensation under Sec. 31-306 at the time of her father’s death because she was no longer dependent on him at that time. See Gagliardi v. Downing & Perkins, Inc., 152 Conn. 475 (1965). BACK TO TEXT
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