Gazzola v. State of Connecticut Department of Public Works, et al

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

The respondent, State of Connecticut was represented by Philip Schulz, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120 who did not file a brief nor appear at oral argument.

The respondents Pavarini Construction Company, George A. Fuller Company, Conyers Construction Company and The Hartford Insurance Group were represented by Laurence McLoughlin, Esq., and John Greiner, Esq., Law Offices of David J. Mathis, 55 Farmington Avenue, Suite 500, Hartford, CT 06105 who withdrew their appeal, did not appear at oral argument and adopted the brief of respondents George A. Fuller Company and St. Paul Travelers Insurance Company.

The respondents George A. Fuller Company and St. Paul Travelers Insurance Company were represented by Joseph J. Passaretti, Jr., Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The respondents General Dynamics/Electric Boat Corporation and ACE USA were represented by Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033 who appeared but did not argue before the board and joined in the brief of respondents George A. Fuller and St. Paul Travelers Insurance Company.

This Petition for Review filed from the July 31, 2006 Finding and Award of the Commissioner acting for the Second District was heard February 23, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant is the dependent spouse of the decedent. The decedent in the course of his employment career was exposed to asbestos. On September 18, 2000 the decedent was diagnosed with malignant mesothelioma. On October 19, 2000 the decedent filed a Form 30C. On November 14, 2000 he succumbed to mesothelioma and liver disease.

The claimant, the dependent spouse of the decedent, filed claims on behalf of herself and the decedent’s estate against the following employers: State of Connecticut, Electric Boat, Rizzi Construction and George A. Fuller Company. The respondents Electric Boat and Rizzi Construction failed to file timely Form 43 disclaimers and the claimant’s Motions To Preclude against these respondents were granted.

The trial commissioner reviewed the decedent’s employment history and evidence of asbestos exposure and found the following. From 1957-1958 the decedent was exposed to asbestos while in the employ of Rizzi Construction Co. For five weeks in 1962 the decedent was exposed to asbestos while in the employ of General Dynamics Corporation/Electric Boat. In 1966 the decedent was employed by George A. Fuller Company and was exposed to asbestos.

From August 14, 1966 to October 28, 1982 the decedent was employed by the State of Connecticut, Department of Transportation. During the time of this employment the claimant was not exposed to asbestos. Between October 29, 1982 and January 28, 1988 and from March 11, 1988 to July 31, 1997 the decedent was employed by the State of Connecticut, Department of Public Works. In 1997 the claimant retired from his position with the Department of Public Works. Between 1999 and 2000 the claimant decedent worked as an independent contractor for the State of Connecticut.

The trial commissioner concluded, inter alia, that either the decedent was not exposed to asbestos while in the employ of the State of Connecticut or if exposed the exposure was not significant or material. The trial commissioner found that the claimant’s mesothelioma and death were causally related to asbestos exposure in the course of his employment and under § 31-299b the George A. Fuller Company was the last employer at which the decedent was exposed to asbestos. Thus, its insurance carrier, St. Paul Travelers, was responsible for administration of the claim and entitled to seek apportionment against other employers in whose employ the claimant was exposed to asbestos.

The only issue presented for review is whether the trier erred in ruling that the decedent’s compensation rate should be calculated on the basis of his earnings in 2000 and adjusted for applicable cost of living adjustments. The claimant contends the trial commissioner misapplied the law. We agree.

The claimant argues the compensation rate should be calculated on the basis of the last 52 weeks of wages earned by the decedent while employed with the State of Connecticut, Department of Public Works prior to his retirement in 1997. Section 31-310c requires that the trial commissioner calculate the average weekly wage as of the date of total or partial incapacity to work. While the trial commissioner’s conclusion is arguably consistent with the overall intent of the § 31-310c, it does not appear to be consistent with the reading we must give to § 31-310c in light of § 1-2z. Section 1-2z requires us to construe statutes in the following manner.

Given the reference in the first sentence of § 31-310c to the term “average weekly wage” we believe we must construe the term “average weekly wage” consistent with its meaning in other sections of the Workers’ Compensation Act. Sec. 31-310(a) provides in pertinent part, “For the purposes of this chapter, the average weekly wage shall be ascertained by dividing the total wages received by the injured employee from the employer in whose service he is injured . . . .”(emphasis ours)

Under § 31-301(a) the computation of the average weekly wage presumes an employer/employee relationship as determined under our Act. In other instances we have considered work situations which did not meet the criteria of an employer/employee relationship as defined in §§ 31-275(9) and 31-275(10) and case law. For example in Martin v. A. Aiudi & Sons, 4384 CRB-6-01-5 (April 25, 2002) we held that a trial commissioner’s consideration of a claimant’s earnings in a privately owned ice cream shop should not be considered in a claim for concurrent employment where the claimant was the owner of the business but failed to establish he was a covered employee. In the matter at hand the trial commissioner found that the decedent was an independent contractor who worked for the State of Connecticut from 1999-2000. By virtue of his status as an independent contractor, under chapter 568 there was no employment relationship. Thus as there was no employment as recognized under chapter 568 in the 26 weeks prior to the decedent’s total or partial incapacity, the claimant is entitled to have the average weekly wage computed on the basis of:

We conclude that this matter must be remanded for a determination of the average weekly wage consistent with the above. We believe our holding is consistent with other situations in which we have determined the effect of earnings from work performed as an independent contractor or sole proprietor. See e.g., Stalker v. Derby, 4093 CRB-4-99-7 (August 10, 2000)(claimant’s earnings as an independent contractor did not qualify as a basis for concurrent employment benefits); Heene v. Professional Ambulance Service, Inc., 3743 CRB-6-97-12 (January 8, 1999) (claimant’s earnings from cleaning business in which he was a sole proprietor could not be considered concurrent employment but could be considered in determining earning capacity under § 31-308(a) as that section references the amount the claimant is “able to earn”). See also, Bardales v. Christi Cleaning Service Corp., 5053 CRB-2-06-2 (December 21, 2006) (if putative employer is one over which the Workers’ Compensation Commission lack jurisdiction entity cannot be considered an employer for purposes of concurrent employment).1

We therefore remand the instant matter for further proceedings consistent with this opinion.