Summary
In Orcutt v. Ohmweave Co., 8 Conn. Workers' Comp. Rev. Op. 125 (1990), the review board was called upon to review a commissioner's 1989 award of disability benefits reissued by that commissioner in February, 1990. The commissioner had used the prevailing weekly wage at the time of the manifestation of the disease in awarding weekly benefits to a retired employee who at the time was not employed within twenty-six weeks of the diagnosis of her asbestosis, a long latent occupational disease.
Summary of this case from Green v. General Dynamics CorporationOpinion
CASE NO. 822 CRD-2-89-2
AUGUST 2, 1990
The claimant was represented by Mathew Shafner, Esq., Mark Oberlatz, Esq., O'Brien, Shafner, Bartinik, Stuart Kelly, P.C.
The respondent-Covenant Insurance was represented by David A. Kelly, Esq., Montstream May.
The respondent-Kemper Insurance was represented by Michael McAuliffe, Esq.
The Second Injury and Compensation Assurance Fund was represented by Michael J. Belzer, Esq. Assistant Attorney General.
This Petition for Review from the February 8, 1989 and February 21, 1990 Finding and Award of the Commissioner for the Second District was heard February 23, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioner Frank Verrilli and George A. Waldron.
FINDING AND AWARD
1-22. Paragraphs 1-22 of the Second District February 8, 1989 Finding and Award as reuttered February 21, 1990 are affirmed and adopted and made Paragraphs 1-22 of this Division's Finding and Award.
23. Paragraph 23 of the Second District February 8, 1989 Finding and Award as reuttered February 21, 1990 is affirmed and adopted and made Paragraph 23 of this Division's Finding and Award except that the word "hamilamenestory" is corrected to read "hemilaminotomy".
24-36. Paragraphs 24-36 of the Second District February 8, 1989 Finding and Award as reuttered February 21, 1990 are affirmed and adopted and made Paragraphs 24-36 of this Division's Finding and Award.
37. The first two paragraphs of paragraphs 37 of the Second District February 8, 1989 Finding and Award as reuttered February 21, 1990 are adopted and made paragraph 37 of this Division's Finding and Award.
37A. It is found that claimant's average weekly wage was $200.00 entitling her to a compensation rate of $133.33. Whereof it is Ordered and Awarded that:
Paragraphs 1-4 of the Second District's February 8, 1989 Award as reuttered February 21, 1990 are affirmed and adopted as paragraphs 1-4 of this Division's Award except that the compensation rate is corrected to read $133.33.
OPINION
Both respondents, Covenant Insurance and Kemper Insurance, contend the Second District erred (1)in concluding this employee filed a timely occupational disease claim and (2)in the computation of claimant's average weekly wage. Kemper also contends (3)claimant's disability did not arise out of the employment.
Originally the commissioner of the second district entered a Finding and Award February 8, 1989. The respondents Petitioned for Review and presented as one of their bases for appeal that the claimant had not supplied them with copies of a brief filed with the second district commissioner and therefore the second district commissioner's February 8, 1989 was issued without the respondent's having had an opportunity to submit a brief to the trial commissioner. The trial commissioner thereafter vacated his February 8, 1989 Finding and Award. In that February 21, 1990 Finding and Award and the trial commissioner adopted the factual findings and conclusions of law stated in February 8, 1989 Finding and Award. Also because of the unusual procedural aspects of this case we note that both respondents filed a second Petition for Review.
Claimant filed her claim December 27, 1985. She was employed in West Hartford and Niantic by the respondent employer, Ohmweave Company, from 1962 until early 1979 as an asbestos weaver. This employer was insured by American Insurance Company from October 1, 1961 to October 1, 1967, by Covenant from October 1, 1970 to October 31, 1974 and by Kemper from October 1, 1974 to October 1, 1979. Claimant wove asbestos yarn into resistors used as insulation in the electrical industry. The work activity often generated asbestos dust which claimant swept up at the end of each work day. Claimant retired from this employment in 1979 in order to care for her sick husband. She had never smoked.
While still working in February, 1972 she was treated for flu by Dr. Howard Johnson, a New London general practitioner. He suspected she might have asbestosis and referred her to Dr. Louis Buckly, a pulmonary physician in the same city. Dr. Buckly had her admitted to Lawrence Memorial Hospital March 5, 1972 and had her undergo various diagnostic tests. He diagnosed chronic bronchitis and hypertrophic papilla; the tests had not produced any indication of ferruginous bodies in the lungs or other direct evidence of asbestos disease.
In June 1973 Dr. Johnson referred claimant to Dr. Hugh Lena, a general surgeon for removal of a lipoma on the right breast. Thereafter Dr. Johnson continued to treat her for a variety of complaints. She had back surgery performed by the neurosurgeon, Dr. John German in April, 1982, a hemilaminotomy at the L-5, S-1 level and the excision, of a neurofibroma. In December, 1983 claimant again saw Dr. Buckly who then diagnosed the claimant as having probable asbestosis related interstitial lung disease.
The trial commissioner found claimant suffered a 40% permanent partial disability to her lungs and that the disease's first manifestation and date of injury was December 28, 1983. He concluded she was totally disabled due to work related asbestosis as of August 2, 1986. Thereafter, he found that had claimant continued to work after 1979 she would have earned an average weekly wage of $320.00 at the time of injury, December 28, 1983.
The first issue raised is the timeliness of a December 27, 1985 notice of claim. Respondents argue the provisions of Sec. 31-294 existing in 1979 when claimant last worked should govern that determination. In 1979 that statute mandated that a claim for occupational disease had to be filed within one year from first know manifestation of symptom. See Bremner v. Marc Eidlitz Sons, Inc., 118 Conn. 666 (1934). They then argue that even assuming arguendo the commissioner's finding that December 28, 1983 was the date of first manifestation, a December 27, 1985 notice two years later is one year late.
However the law which governs is the law at the time of injury. Broyoska v. Norwalk Lock Co., 8 Conn. Sup. 381 (1940). In this case the commissioner found that to be December 29, 1983. Sec. 31-294 was amended in 1980 to permit a three year rather than a one year limitation for occupational disease claims. A December 27, 1985 notice of claim is clearly within the permitted three years for a December 29, 1983 disease.
Respondents further claim on this point is that the date of known manifestation was really February, 1972 when Dr. Johnson suspected asbestosis. Bremner, supra, stated that the symptoms of an occupational disease are only manifested when "they plainly appear, not when it was merely suspected or doubtful." Id., 669-70. We therefore see no reason to disturb the commissioner's conclusion that December 29, 1983 was the date of injury. Fair v. People's Savings Bank, 207 Conn. 535 (1988).
Computation of claimant's average weekly wage under Sec. 31-307 and 31-310 is the second error alleged. Since claimant had not worked in the twenty-six week period before the December 29, 1983 date of injury, the commissioner apparently ruled that her average weekly wage was the average prevailing as of December 29, 1983 for that type of work in that industry, $320.00. (Finding, Paragraph 35). Her average weekly wage when she last worked was actually $200.00 wage, to a base rate of $133.33.
The decision below was first reached on February 8, 1989, then vacated February 20, 1990 and reissued February 21, 1990. Interestingly, the 1990 General Assembly session enacted P.A. 90-116 approved May 17, 1990. Section 8 of that act becomes effective October 1, 1990. It states:
Sec. 8. For the purposes of chapter 568 of the general statutes, 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 of the general statutes, and adjusted pursuant to section 31-307a of the general statutes, or (2) the average weekly wage earned by the claimant during the twenty-six calendar weeks last worked by the claimant, which wage shall be determined in accordance with said section 31-310, and adjusted pursuant to said section 31-307a.
Thus the procedure for computing the average weekly wage legislated in P.A. 90-116, Sec. 8 is exactly the method employed in February, 1989 by the commissioner here.
Although the commissioner is to be commended for his powers of prophecy, we cannot agree that the law existing on December 29, 1983 or even the law in effect in February, 1989 permitted this method of computing the average weekly wage. Rather the fact that the legislature thought it necessary to mandate such a method beginning October 1, 1990 strongly indicates that the law did not permit it before that date. We so rule.
In our state the Workers' Compensation Law is part of the employment contract between employer and employee. We therefore need to look to the time when this employer and this employee last had an active contractual relationship. In this case that was 1979 when claimant's average weekly wage was found to be $200.00 entitling her to a compensation rate of $133.33 as of the December 29, 1983 date of injury. She is also entitled to cumulative yearly cost of living adjustments thereafter during the periods she was found to be totally disabled, a $24.00 increment effective October 1, 1984, $11.00, October 1, 1985, $7.00, October 1, 1986, $14.00, October 1, 1987, $12.00, October 1, 1988 and $10.00, October 1, 1989.
Finally, respondent Kemper raises the issue of proximate causation. Its argument is that claimant suffered from medical infirmities other than the work related pulmonary ones, particularly her cardiac problems. However the commissioner found (Finding, Paragraph 37) that her asbestosis was an occupational disease arising out of the employment. The disease first caused a 40% permanent loss of use of the lungs, and by August 2, 1986 the same occupational disease caused her to be totally disabled. There was testimony from Dr. Buckly, the lung physician, supporting that conclusion. Therefore, we as an appellate tribunal may not examine further. Fair v. Peoples's Savings Bank, supra.
The decision is affirmed in part and modified in part.
Commissioners Frank Verrilli and George A. Waldron concur.