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CASE NO. 3767 CRB-08-98-02
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 25, 1999
ROY F. ELLIS
LIBERTY MUTUAL INSURANCE CO.
SECOND INJURY FUND
The claimant was represented by Kevin F. Rennie, Esq., 1708 Ellington Road, South Windsor, CT 06074.
The respondents were represented by William Brown, Esq., McGann, Bartlett, & Brown, 281 Hartford Turnpike, Vernon, CT 06066.
The Second Injury Fund was not represented at oral argument. Notice sent to William McCullough, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the January 28, 1998 Finding and Award of the Commissioner acting for the Eighth District was heard September 18, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Stephen B. Delaney.
JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the January 28, 1998 Finding and Award of the Commissioner acting for the Eighth District. They argue on appeal that the trier erred by interpreting § 31-310c C.G.S. to include the situation of the instant claimant. We affirm the trial commissioner’s decision.
The facts of this case are not in dispute. The claimant began working for the respondent Rogers Corp. in 1968, and frequently handled powdered asbestos. He was first diagnosed with asbestosis in 1994, but did not lose any time from work initially. He retired in December 1994. In 1997, Dr. Godar determined that the claimant was suffering from a 50% disability of each lung due to asbestosis, with a maximum medical improvement date of August 11, 1997.
At the time the claimant retired from his employment, his average weekly wage was $542.20, which translated to a compensation rate of $339.05. The trier found that the claimant had suffered a compensable injury on December 31, 1994, and that this injury had caused a 50% permanent partial disability of his lungs. He accepted the $339.05 compensation rate, despite the respondents’ argument that the claimant is entitled to nothing because he had no earnings during the 52 weeks prior to the date he became entitled to benefits. The respondents have appealed that decision.
Section 31-310c states:
For the purpose of this chapter, in the case of an occupational disease the average weekly wage shall be calculated as of the date of total or partial incapacity to work. However, in the case of an occupational disease which manifests itself at a time when the worker has not worked during the twenty-six weeks immediately preceding the diagnosis of such disease, the claimant’s average weekly wage shall be considered to be equivalent to the greater of (1) the average weekly wage determined pursuant to section 31-310 and adjusted pursuant to section 31-307a or (2) the average weekly wage earned by the claimant during the fifty-two calendar weeks last worked by the claimant, which wage shall be determined in accordance with said section 31-310 and adjusted to said section 31-307a.
By its precise terms, the statute does not cover an employee whose occupational disease has manifested itself during the period of employment. This is the crux of the respondents’ argument: that the claimant does not fall within the second sentence of § 31-310c, and that his average weekly wage must be calculated as of the August 11, 1997 date he became incapacitated pursuant to Stevens v. Raymark Corporation/Raybestos Manhattan, 28 Conn. App. 226 (1992). As the claimant did not work during the 52 weeks preceding August 11, 1997, he would get no benefits under this reading of the law.
Stevens, supra, a case in which the claimant was exposed to asbestos in 1979 and diagnosed with lung disease in 1985 while working for a different employer, indeed supports the use of the date of incapacity as the relevant date for determining the compensation rate of an injured worker. Id., 228. However, Stevens relies upon Rousu v. Collins Co., 114 Conn. 24 (1931), in which the date of asbestos exposure predated the date of incapacity to work, but the claimant was still working at the time he became incapacitated. The remedial tenor of Rousu and Green v. General Dynamics, 245 Conn. 66 (1998), make it clear that the “date of incapacity rule” in Stevens should not be read as a controlling precept for all cases. Rather, Stevens applies to cases in which the claimant is still earning wages at the time of his incapacity, and those wages differ from the amount he was earning at the time of injury.
In Green, our Supreme Court noted the remedial purpose of our workers’ compensation legislation, its exclusive-remedy status, and the unique problems presented by occupational diseases with long latency periods. Id., 71-73. The Court then parsed the language of § 31-310c, and reasoned that, at the time § 31-310c was enacted, § 31-310 must have already provided a method of calculating an average weekly wage for an individual who was unemployed at the time of injury. Otherwise, § 31-310c(1) would be meaningless. Id., 74-75. The Court declared that § 31-301c was simply a legislative clarification of existing law, and applied retroactively. “We conclude that the employee’s complete retirement under the circumstances, at the time of his incapacity, does not bar weekly death benefits for a permanent loss of earning capacity. This is in keeping with the purpose of our act.” Id., 79.
We would be turning a blind eye to that purpose and to the mutual cession of rights that permits the Act to exist if we were to extend the application of the “date of incapacity” rule to cases in which the claimant was employed at the time that his occupational disease manifested itself, but not at the time he became disabled. The language of Rousu, Michna v. Collins Co., 116 Conn. 193 (1933), Green and Stevens evinces an unwavering concern for establishing a just measure of the lost earning power of an employee due to his injury. To say that the instant claimant lost nothing on account of the compensable asbestosis that most likely contributed to his decision to retire in 1994 would be a travesty and a devaluation of his life. We will not implement such an overbroad, exclusionary interpretation of § 31-310c and its related case law.
The trial commissioner’s decision is affirmed.
Commissioners Michael S. Miles and Stephen B. Delaney concur.