Opinion
CASE NO. 1375 CRB-2-92-1
DECEMBER 23, 1993
The claimant was represented by Mark W. Oberlatz, Esq., O'Brien, Shafner, Stuart, Kelly and Morris.
The respondent-employer was represented by John W. Greiner, Esq., Murphy and Beane.
The respondent-insurers Insurance Co. of North America and Aetna Casualty and Surety, were represented by Lucas Strunk, Esq., Pomeranz, Drayton and Stabnick, who appeared at oral argument but did not file a brief.
The respondent-insurer Liberty Mutual Insurance Co. was represented by David Viggiano, who did not appear or file a brief before the Compensation Review Board.
This Petition for Review from the January 6, 1992 Finding and Award of the Commissioner at Large acting for the Second District was heard January 8, 1993 before a Compensation Review Board panel consisting of the Commissioners John A. Arcudi, George A. Waldron and Donald H. Doyle, Jr.
OPINION
This occupational disease matter was heard below on stipulated facts. On appeal, the sole issue is whether the maximum compensation rate applicable was the maximum in effect on the incapacity date or that in effect at the date of last employment. Robert Deremer, the decedent, was employed by the respondent from April, 1952 until retirement in April, 1982. Four years after retirement, in March, 1986, he suffered an employment related adenocarcinoma of the esophagus; this caused his death August 24, 1986.
For the twenty-six weeks prior to his 1982 retirement he earned $18,529.08 or an average weekly wage of $712.66, sixty-six and two third percent of which was $475.11. The statutory maximum at that time was $310. In March, 1986 the maximum was $397. By agreement the employer paid the surviving dependent widow at the lower maximum, $310, with the understanding that she could pursue her right to obtain the higher weekly maximum, $397. The commissioner ruled she should receive the higher rate as the maximum in effect on the date of first incapacity was the proper one.
Sec. 31-309, C.G.S. states that in case of occupational disease "the time of injury shall be the date of . . . incapacity to work as a result of such disease." See Marchitto v. Hamden Upholstery Co., 9 Conn. Workers' Comp. Rev. Op. 138, 953 CRD-3-89-12 (1991). In 1986, Sec. 31-309 set the maximum compensation at "one hundred percent . . . of the average weekly earnings of production and related workers in manufacturing in the state . . . for the year in which the injury occurred."
Relying on Orcutt v. Ohmweave Company, 8 Conn. Workers' Comp. Rev. Op. 125, 822 CRD-2-89-2 (1990), respondents argue that as the compensation rate is calculated on the basis of April, 1982 earnings, the last date wages were paid under the contract of employment, then the maximum rate applicable at that time should govern. Both in 1982 and 1986 the determination of the employee's average weekly wage was under Sec. 31-310, C.G.S. That statute provided that the wage was to "be ascertained by dividing the total wages received . . . during the twenty-six calendar weeks immediately preceding that during which he was injured, by the number of calendar weeks during which . . . such worker was employed." Sec. 31-306, and Sec. 31-307, C.G.S. then provided that the weekly compensation rate was sixty-six and two-thirds percent of the average weekly wage, but in no case more than the "maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred."
Respondents' reliance on Orcutt is misplaced. Orcutt held that as workers' compensation benefits are part of the contractual employment relationship, then the employee's average weekly wage compensation was to be based on the last wages paid under that contract. Had the decedent been receiving higher wages with another employer after his retirement from General Dynamics, then case law would have mandated that those subsequent higher wages be the basis for the computation of the average weekly wage, even if earned with a different employer. Michna v. Collins Co., 116 Conn. 193 (1933); Rousu v. Collins Co., 114 Conn. 24, 31 (1931); Stevens v. Raymark Corporation/Raybestos Manhattan, 28 Conn. App. 226, 228 (1992).
But the computation of the average weekly wage is under Sec. 31-310 while the maximum compensation rate determinable under Sec. 31-309 is based on the rate in effect on the date of incapacity. As pointed out by the three cases cited in the paragraph above, the 1980 amendment to Sec. 31-309 stating the basis for the determination of the maximum in occupational disease cases was simply a codification of existing law. The holding of Michna, Rousu and Stevens, codified in the 1980 law, was that the wage loss sought to be reimbursed by workers' compensation in occupational disease cases was the wage loss at the time of incapacity. Sec. 31-309 benefit ceilings in that regard are different from Sec. 31-310 wage computations.
We, therefore, affirm the trial commissioner and deny the appeal.
Additionally, pursuant to Sec. 31-301c(b), we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.
Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.