Opinion
SC 15650
SYLLABUS
The claimant, F, sought workers' compensation benefits, after he contracted malignant mesothelioma from exposure to asbestos in the course of his employment with the respondent, E Co. F was diagnosed with the disease in 1990, more than five years after he retired from E Co. F filed his claim for benefits in 1990 and, following his death in 1992, the workers' compensation commissioner awarded benefits to F's estate and F's surviving dependent spouse. E Co. appealed to the compensation review board, which affirmed the commissioner's award. E Co. then appealed to the Appellate Court, which reversed the review board's decision on the basis of its decision in Green v. General Dynamics Corp. ( 44 Conn. App. 112). On the granting of certification, F's estate and F's dependent widow appealed to this court. Thereafter, the certified issue, which addressed only the dependent widow's entitlement to benefits, was amended by this court to address also the estate's entitlement to benefits, in order to represent accurately the issues presented on appeal from the commissioner's decision. Held that, in accordance with the decision of this court in Green v. General Dynamics Corp. ( 245 Conn. 66), both the dependent widow and the estate were entitled to benefits to be calculated in accordance with the formula established by statute (§ 31-310c [Rev. to 1991]).
( One justice dissenting)
Argued October 30, 1997
Officially released June 9, 1998
PROCEDURAL HISTORY
Appeal by the named respondent et al. from a decision by the workers' compensation commissioner for the second district granting the claims for, inter alia, survivor's benefits, brought to the compensation review board, which affirmed the commissioner's decision, and the named respondent et al. appealed to the Appellate Court, Foti, Landau, Heiman and Hennessy, with Dupont, C.J., and Lavery and Spear, Js., dissenting, which reversed the decision of the compensation review board and remanded the case with direction to deny the claims for benefits, and the claimants, on the granting of certification, appealed to this court. Reversed ; further proceedings.
Stephen C. Embry, with whom, on the brief, was Gerard Rucci, for the appellants (claimants).
Lucas D. Strunk, for the appellees (named respondent et al.).
OPINION
The principal certified issue in this appeal provides as follows: "Is the surviving dependent spouse of an employee who died as a result of an occupational disease entitled to benefits under General Statutes § 31-306 when: (a) the decedent did not work for the twenty-six weeks preceding the date of the manifestation of the occupational disease; and (b) the occupational disease manifested itself prior to October 1, 1990, the effective date of Public Acts 1990, No. 90-116?" Estate of Robert Frederick v. General Dynamics Corp., 240 Conn. 917, 692 A.2d 812 (1997).
The second certified issue provides as follows: "If the answer to the first question is yes, how should the average weekly wage used to determine the amount of the benefits to the surviving dependent spouse be calculated under the facts of this case?" Estate of Robert Frederick v. General Dynamics Corp., 240 Conn. 917, 692 A.2d 812 (1997).
Robert Frederick, the decedent, was employed by the named respondent, the Electric Boat Division of General Dynamics Corporation (respondent), from December 1, 1964, until January 6, 1984, when he retired without a disability. The decedent was exposed to asbestos during the first nine years of his employment with the respondent, and was diagnosed with malignant mesothelioma in 1990. The respondent concedes that the decedent's disease arose out of and in the course of his employment with the respondent.
The original respondents included the Electric Boat Division of General Dynamics Corporation (Electric Boat), National Employers Company and CIGNA Property and Casualty Company (CIGNA). The respondents on appeal to this court are Electric Boat and CIGNA.
In 1990, the decedent filed a timely claim for workers' compensation benefits pursuant to General Statutes § 31-307. Following the decedent's death in 1992, the workers' compensation commissioner for the second district (commissioner) awarded benefits to his estate and his wholly dependent widow, Anne Frederick. The respondent appealed from the decision awarding benefits to the compensation review board (review board), which affirmed the commissioner's decision. The Appellate Court reversed the review board's decision on the basis of that court's decision in Green v. General Dynamics Corp., 44 Conn. App. 112, 687 A.2d 550 (1996). Estate of Robert Frederick v. General Dynamics Corp., 44 Conn. App. 124, 686 A.2d 1003 (1996).
We recently decided in Green v. General Dynamics Corp., 245 Conn. 66, 712 A.2d 938 (1998), that a surviving dependent spouse is entitled to benefits under § 31-306, when the decedent has not worked for the employer for twenty-six weeks preceding the manifestation of an occupational disease. The certified issue in this case, however, does not sufficiently portray the issues originally presented by the appeal from the commissioner's decision. In this case, the decedent had filed a timely claim before his death, and, therefore, both his dependent widow and his estate have a claim. The certified issue, however, addresses only the dependent widow's entitlement to benefits. Therefore, we rephrase the certified issue "in order to render [it] more accurate in framing the issues that this case presents." Stamford Hospital v. Vega, 236 Conn. 646, 648 n. 1, 674 A.2d 821 (1996). Accordingly, the certified issue is amended to provide as follows: "Are the surviving dependent spouse and the estate of an employee who died as a result of an occupational disease entitled to benefits under General Statutes § 31-306 and General Statutes § 31-307, respectively, when: (a) the decedent did not work for the twenty-six weeks preceding the date of the manifestation of the occupational disease; and (b) the occupational disease manifested itself prior to October 1, 1990, the effective date of Public Acts 1990, No. 90-116?"
Public Acts 1990, No. 90-116, was codified as General Statutes (Rev. to 1991) § 31-310c.
Both § 31-306 and § 31-307 provide that benefits are calculated pursuant to General Statutes § 31-310. In Green, we concluded that such benefits are calculated under General Statutes (Rev. to 1991) § 31-310c in the case of occupational disease. Green v. General Dynamics Corp., supra, 245 Conn. 78. Therefore, the amended certified issue is answered in the affirmative, and the benefits are to be calculated in accordance with our decision in Green.
I dissent for the same reasons that I gave in Green v. General Dynamics Corp., 245 Conn. 66, 79, 712 A.2d 938 (1998) ( Borden, J., dissenting).