Wilkinson v. General Dynamics Corporation/Electric Boat Division

JESSE M. FRANKL, CHAIRMAN. The respondents have filed a Motion for Reargument or Articulation in response to the November 3, 1994 decision of this Board. Although we deny their motion for reargument, we are willing to further address the issues that the respondents claim were insufficiently discussed in our decision.

The respondents maintain that “the claimant suffered from permanent partial impairment as early as 1979 and certainly substantially sooner than September 14, 1988 as was reflected by the evidence,” and thus they contend that the claimant’s worker’s compensation rate should have been fixed at an earlier date. They cite Levanti v. Dow Chemical Co., 8 Conn. Workers’ Comp. Rev. Op. 93, 815 CRD-2-89-1 (1990), affirmed, 218 Conn. 9 (1991), in support of their position that impairment constitutes disability.

The commissioner ’s Finding and Award of December 15, 1992 contained a specific finding that Dr. Buckley diagnosed the claimant with a 30 percent permanent partial incapacity due to occupational asbestos exposure on December 12, 1988. The commissioner also found that Dr. Linden testified that x-rays taken in 1979 showed evidence of asbestos exposure but no active disease, although those records had been lost. Linden also testified that as of 1985, there was symptomology of active lung disease. However, no diagnosis of impairment or disability was made at that time.

As we stated in our decision of November 3, 1994, the relevant date for determining compensation to an injured worker is the date of his incapacity to work. Stevens v. Raymark Corporation/Raybestos Manhattan, 28 Conn. App. 226, 228 (1992). This case is very similar to Stevens in that the claimants in both cases were exposed to asbestos until 1979 or 1980, but were not diagnosed with lung disease until 1985. In Stevens, our Appellate Court decided that the claimant’s incapacity to work occurred when he was diagnosed as permanently partially disabled in 1987, and his compensation rate was calculated as of that date. The only difference between that case and this one is that in this case, there was evidently some awareness that lung disease was developing by 1985. In both cases, the claimant continued to work until the time he was diagnosed as permanently partially disabled. To address a concern of the respondents: we do recognize that the claimant voluntarily retired here. We are not under the misimpression that the claimant’s incapacity as a matter of law began when he left his employment; we merely intended to suggest in our decision that, among other things, his continuation of employment through 1988 supported the commissioner’s conclusion that an impairment had not occurred earlier. We elaborate more on the propriety of the commissioner’s findings below.

The respondents stress the relevance of Levanti, supra, because they contend that the evidence in this case mandates a finding that the claimant suffered a permanent partial impairment before September 14, 1988, and that under Levanti, impairment presumes incapacity. Whether Levanti actually stands for the proposition asserted by the respondents need not be addressed by this Board. Even if we were to accept the respondents’ interpretation of that case, the evidence does not mandate a finding that the claimant suffered permanent partial impairment before 1988.

It is well-settled that the commissioner has the authority to draw reasonable inferences from the facts and to determine the credibility of witnesses. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Cholewinski v. Brake Systems, Inc., 6 Conn. Workers’ Comp. Rev. Op. 105, 601 CRD-4-87 (1989). There is clearly evidence to support the commissioner’s finding that the date of injury was September 14, 1988, i.e., Dr. Buckley’s report. Furthermore, the commissioner was not required to credit the testimony of the other doctors as establishing an impairment before that date, particularly when no partial impairment was actually diagnosed. Under the appropriate standard of review, therefore, we must defer to the commissioner’s factual finding regarding the date of impairment.

As to the public policy concerns stressed by the respondents regarding claimants waiting until retirement to “collect” disability ratings in order to receive compensation at higher wage rates, we merely note that said concerns were not discussed in their brief, and moreover, that this Board is not required to address every rationale favoring or opposing a party’s argument simply because it was raised at some point in the proceedings.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur in this articulation.

Wilkinson v. General Dynamics Corporation/Electric Boat Division

ARTICULATION