Messier v. General Dynamics/Electric Boat Division

ANN MARIE MESSIER, Dependent Widow of MARC MESSIER and THE ESTATE OF MARC MESSIER

The claimant was represented by Mark W. Oberlatz, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.O. Drawer 929, Groton, CT 06340.

The respondents were represented by Margaret Corrigan, Esq. and Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the August 12, 1992 Finding and Award of the Commissioner At Large acting for the Second District was heard June 11, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. Both the claimant and the respondents have filed Petitions for Review in this occupational disease matter. In its appeal, the claimant-estate challenges the trial commissioner’s failure to award permanent partial disability benefits for the twenty percent impairment to the decedent’s lungs. In their cross appeal, the respondents have challenged the commissioner’s determination of the applicable compensation rate based on the date of diagnosis of the occupational disease rather than the date of occupational exposure during employment.

Marc Messier was exposed to asbestos dust during his employment in 1965 and 1966 with the respondent-employer. This resulted in a lung disease diagnosed as malignant mesothelioma. The trial commissioner found that Messier had a twenty percent permanent partial impairment of his lungs as of August 23, 1990 but that Messier had not reached maximum medical improvement. Because a respondent has no obligation to pay permanent partial disability benefits until a claimant reaches maximum medical improvement, the commissioner did not award such benefits.

The claimant-estate disputes the commissioner’s finding that Messier had not attained maximum medical improvement. The claimant contends that the commissioner’s conclusion is not supported by the evidence and is contrary to law. Specifically, the claimant argues that Messier had reached maximum medical improvement because his terminal condition would never improve and any change in his condition would only be a gradual deterioration ultimately resulting in death.

The determination of the date of maximum medical improvement is a factual finding which lay within the commissioner’s province as the trier of facts. Delcarmine v. Fire Prevention Service, Inc., 5 Conn. Workers’ Comp. Rev. Op. 123, 125, 311 CRD-7-84 (1988); Fortier v. State, 3 Conn. Workers’ Comp. Rev. Op. 142, 230 CRD-4-83 (1987). The commissioner’s ruling will be upheld if it is supported by the evidence and not contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

In the present case, the commissioner’s finding that Messier had not yet reached maximum medical improvement was based on a report by Dr. Thomas J. Godar (Claimant’s Exhibit 13). In that report, Dr. Godar assessed a twenty percent respiratory system impairment as of August 23, 1990, and opined that the claimant “has not reached maximum medical improvement . . . .” In light of this evidence, we cannot conclude that the commissioner’s conclusion resulted from an incorrect application of law or from inferences illegally or unreasonably drawn from the facts found. The commissioner’s conclusion not to award permanency benefits must therefore stand. Fair v. People’s Savings Bank, supra.

Turning now to the respondents’ cross appeal, we note that the commissioner’s ruling that the compensation rate should be based on earnings at the time of the diagnosis of occupational disease is consistent with long-standing interpretation of our Workers’ Compensation Act. See Michna v. Collins Co., 116 Conn. 193 (1933); Rousu v. Collins Co., 114 Conn. 24 (1931); Stevens v. Raymark Corporation Raybestos/Manhattan, 28 Conn. App. 226, cert. denied, 223 Conn. 921 (1992). We need not address the respondents’ cross appeal, however, because the claim raised therein is moot. By his ruling on the respondents’ motion to correct, the commissioner deleted from the Finding and Award all reference to claims or payment of temporary total disability. Because no weekly benefits have been awarded to the claimant, there is no actual or existing controversy with respect to the compensation rate. It is not the province of this board to decide moot questions, the determination of which cannot result in the granting of actual or practical relief. Zampano v. L.G. DeFelice, Inc., 30 Conn. App. 801, 802 (1993); Fromer v. Tree Warden, 26 Conn. App. 599, 600 (1992). The present state of the record convinces us that the cross appeal should be dismissed.

We, therefore, affirm the trial commissioner’s denial of specific indemnity benefits and deny the claimant’s appeal. We dismiss the respondents’ cross appeal as moot.