Belanger & Belanger v. American Optical

The claimant was represented by Nathan Shafner, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge St., P. O. Drawer 929, Groton, CT 06340.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412. Notice also sent to James Moran, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550; and Christine Harrigan, Esq., Law Offices of Christine Harrigan, 185 Asylum Street, City Place, Hartford, CT 06103.

The Second Injury Fund was not represented at oral argument. Notice sent to Ernie Walker, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the May 23, 1996 Finding and Award of the Commissioner acting for the First District was heard February 28, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent insurers have petitioned for review from the May 23, 1996 Finding and Award of the Commissioner acting for the First District. They argue on appeal that the commissioner improperly added cost-of-living adjustments (COLAs) to the dependent death benefits that she awarded to the claimant. We affirm the trial commissioner’s decision.

The decedent was employed by American Optical from 1961 through 1980. As a result of workplace asbestos exposure, the decedent developed mesothelioma of the lungs, which first manifested itself on September 21, 1992. That is the operative date of injury in this case. The mesothelioma caused the decedent’s death on May 23, 1994, and her estate was awarded temporary total disability benefits and the appropriate COLAs. Her husband, Paul Belanger, was found to be a dependent spouse pursuant to § 31-306 C.G.S. The trier also ordered that he receive dependency benefits commencing on May 24, 1994, at a base compensation rate of $359.09 along with appropriate COLAs. The respondent insurers have appealed that decision.

Section 31-306(a)(2)(A) states that “[t]he weekly compensation rate of each dependent entitled to receive compensation under this section as a result of death arising from a compensable injury occurring on or after October 1, 1977, and before July 1, 1993, shall be adjusted annually . . . to provide the dependent with a cost-of-living adjustment in his weekly compensation rate as determined as of the date of the injury under section 31-309.” The effect of this provision on the instant case would appear to be clear: the dependent of a claimant who dies as the result of an injury that occurred in 1992 is entitled to COLAs. The respondents argue, however, that dependent spouse claims are separate and distinct from the claims of an injured worker, and that the date of death, not the date of the initial injury, should control entitlement to COLAs.

We grant that some of our prior cases have held that “a dependent’s claim is separate and distinct from the claim of the injured worker or his estate for some purposes.” Sellew v. Northeast Utilities, 12 Conn. Workers’ Comp. Rev. Op. 135, 138, 1422 CRB-8-92-5 (April 7, 1994) (dependent’s claim does not vest until date of death, so separate limitation periods for filing notice of claim under § 31-294 are necessary). However, both statute and case law have also recognized the link between an employee’s disability compensation and survivor’s benefits due her dependents. Id. Ultimately, “the availability of survivorship benefits under § 31-306 is inextricably linked to, and wholly dependent upon, the existence of a compensable injury or illness suffered by the employee. . . . The calculation of the amount of survivor’s benefits . . . is determined as of the date of the employee’s injury and not as of the date on which the dependent becomes eligible to receive such benefits.” Duni v. United Technologies Corp./Pratt & Whitney Aircraft Division, 239 Conn. 19, 25 (1996) (emphasis added) (plaintiff could not maintain right to survivor’s benefits where decedent had settled “all claims due” via stipulation prior to his death); see also Ash v. New Milford, 207 Conn. 665, 673 (1988).

Our Supreme Court’s recent decision in Gil v. Courthouse One, 239 Conn. 676 (1997) does not abrogate the use of the date of injury rule in all matters involving COLAs. The decision explains that the date of injury rule still functions as a presumption of legislative intent within the workers’ compensation context, with the legislature retaining the ability to overcome that presumption if the intent to do so is clear. Id., 686-87. For example, the addition of COLAs to compensation benefits for total incapacity “as a result of an injury sustained prior to October 1, 1969” expressly averted the impact of the date of injury rule in order to allow people injured prior to the effective date of the COLA statute to receive COLAs as well as those injured after that date. Id., 687.

In Gil, the Supreme Court decided that P.A. 91-339 was applicable to claimants injured prior to October 1, 1991 because it amended § 31-307a(a) to provide that the weekly compensation of each employee injured on or after October 1, 1969 would be subject to the new COLA calculation method. As was foreshadowed by this board’s decision in Taylor v. P.J. Ladola’s, 12 Conn. Workers’ Comp. Rev. Op. 378, 1526 CRB-1-92-10 (Aug. 17, 1994), the Court did not believe that the legislature had created a “vested, contractual-like right to have one’s COLA perpetually calculated as it was calculated on the date of injury.” Gil, supra, 690. Notably, our decision in Taylor distinguished the substantive issue of entitlement to COLAs from the procedural method of calculating those COLAs.

Here, there is a statute in the Workers’ Compensation Act—§ 31-306(a)(2)(A)—that specifically states that dependents receiving compensation based on “death arising from a compensable injury occurring on or after October 1, 1977, and before July 1, 1993” get COLAs. This language is not ambiguous. Reading the statute to mean that the date of death, and not the date of injury, must be before July 1, 1993 would render the subsequent phrase “arising from compensable injuries” meaningless, as any “dependents receiving compensation” under the Act would be doing so based on someone’s compensable injury. Read in conjunction with existing case law, we see no reasonable ground on which it could be held that the survivor of an employee who was injured in 1992 would not be entitled to COLAs just as the employee herself would have received COLAs in addition to temporary total disability benefits under § 31-307 C.G.S.