Wilkinson v. General Dynamics Corporation/Electric Boat Division

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

The respondents General Dynamics, INA and Aetna Casualty and Surety were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

National Employer’s Company was represented by Booth Kelly, Esq. and John Greiner, Esq., Murphy and Beane, P. O. Box 590, New London, CT 06320.

This Petition for Review from the December 15, 1992 Finding and Award of the Commissioner acting for the Second District was heard January 28, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents petitioned for review from the Dec. 15, 1992 Finding and Award of the commissioner for the Second District. They claim on appeal that the commissioner improperly calculated the claimant’s compensation rate based on a September 14, 1988 date of injury when there was evidence presented that as early as 1980, the claimant suffered from lung disease, and that the commissioner improperly denied the respondents’ motion to correct.1 We affirm the decision of the trial commissioner.

The claimant retired in 1988 after working for the respondent employer for thirty years. His work resulted in significant exposure to asbestos, although such exposure was found to have ceased by December 31, 1979. There was testimony from Dr. Linden, the claimant’s family physician, that although x-rays performed in 1979 showed evidence of asbestos exposure, there was no active disease at that time. Linden testified that in 1985 there “was symptomology of active lung disease.” The records of Linden’s treatment of the claimant had been lost, however, and were unavailable at trial. Dr. Buckley, a pulmonologist, stated in a September 14, 1988 report that the claimant had a 30 percent lung impairment due to occupational exposure to asbestos. The commissioner’s findings were in accordance with that report, indicating that September 14, 1988 was the date of injury. Weekly benefits of $643.00 were awarded based on the claimant’s $989.16 weekly wage as of that date.

It is well-settled that, under Connecticut law, “benefits concerning injury from workplace disease or deterioration do not accrue until the date of incapacity.” Mulligan v. F.S. Electric, 12 Conn. Workers’ Comp. Rev. Op. 91, 94, 1424 CRB-4-92-5 (1994). See Rousu v. Collins Co., 114 Conn. 24 (1931); Stevens v. Raymark Corporation/Raybestos Manhattan, 28 Conn. App. 226 (1992). Indeed, Public Act No. 80-124 amended General Statutes § 31-307 to read, “[i]n the case of an occupational disease, the time of injury shall be the date of total or partial incapacity to work as a result of such disease.” The weekly wage calculation pursuant to § 31-310 thus should be based on the date of incapacity to work. Stevens v. Raymark Corporation/Raybestos Manhattan, supra, 230; Mulligan v. F.S. Electric, supra, 93.

Here, the commissioner determined the claimant’s date of injury to be September 14, 1988. As the claimant continued to work for the respondent employer until and through that date, it was certainly reasonable for the commissioner to conclude that the claimant’s partial incapacity did not occur before that date. We will not substitute our own conclusions for those of the commissioner. Adzima v. UAC/Norden Division, 177 Conn. 107 (1979). The commissioner’s use of the claimant’s September 14, 1988 wage rate to calculate his compensation benefits was thus not improper.

The respondents also argue that the commissioner improperly denied its motion to correct. Only admitted or undisputed corrections will be granted by the commissioner. Grady v. St. Mary’s Hospital, 179 Conn. 662, 669 (1980). Each of the respondents’ proposed corrections contradict the facts as found by the commissioner. As his findings were supported by the evidence, we will not disturb those conclusions. Reale v. Carducci, 10 Conn. Workers’ Comp. Rev. Op. 158, 159, 1205 CRD-5-91-3 (1992). The commissioner properly denied the respondents’ motion to correct.

The December 15, 1992 Finding and Award of the Second District Commissioner is affirmed.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

1The respondents abandoned at oral argument their assertion that notice of the claimant’s occupational disease claim, filed on June 17, 1986, was untimely pursuant to the three-year notice provision of General Statutes § 31-294c. Thus, we need not address that issue. BACK TO TEXT