Crook v. Academy Drywall Co., 14156

• Decision Date: 28 May 1991
• Docket Number: No. 14156,14156
• Citation: 219 Conn. 28,591 A.2d 429
• Court: Connecticut Supreme Court
• Parties: Larry D. CROOK v. ACADEMY DRYWALL COMPANY et al.

Page 429

591 A.2d 429

219 Conn. 28

Larry D. CROOK v. ACADEMY DRYWALL COMPANY et al.

No. 14156.

Supreme Court of Connecticut.

Argued March 28, 1991.

Decided May 28, 1991.

William C. Brown, Vernon, for appellants (defendants).

Thomas Galvin Cotter, for appellee (plaintiff).

Before SHEA, CALLAHAN, COVELLO, BORDEN and FRANCIS X. HENNESSY, JJ.

CALLAHAN, Associate Justice.

The sole issue presented in this appeal is whether an employee who suffers a compensable injury is eligible under General Statutes § 31-308b ¹ to receive a dependency allowance for a child born after the date of the employee's injury but conceived prior to the date of that injury. We conclude that an employee is entitled to receive a dependency allowance for the child under such circumstances.

The parties have stipulated to the relevant facts. The plaintiff, Larry D. Crook was employed by the named defendant, Academy Drywall Company, ² when he suffered a compensable injury to his lower back on January 8, 1987. The plaintiff had two children at the time of his injury and a third child was born to the plaintiff and his spouse on April 15, 1987, approximately three months after the date of his injury. Under General Statutes § 31-307, ³ the plaintiff is entitled to receive a weekly base compensation rate of $367.30 for his total incapacity. It is undisputed that the plaintiff is entitled under § 31-308b to receive a dependency allowance of $10 per week per child for the two children born prior to the date of his injury. In addition, the workers' compensation commissioner (commissioner) for the fourth district concluded that as of April 15, 1987, the date of birth of the third child, the plaintiff was eligible to receive a dependency allowance for that child as well. On appeal, the compensation review division (CRD) affirmed the commissioner's decision. The defendants appealed the decision of the CRD to the Appellate Court, and we transferred the matter to this court pursuant to Practice Book § 4023. We now affirm the judgment of the CRD.

Section 31-308b provides that "[e]ach employee entitled to receive compensation for total incapacity under the provisions of section 31-307, shall be paid ... a dependency allowance ... for each of such employee's children or stepchildren who ... at the time of injury for which such compensation is being paid, were being wholly or mainly supported by such employee and who, as of the date of compensation payment for such week, are under eighteen years of age...." The statutory language establishes that the critical date in the determination of an employer's liability for the dependency allowance is the date of the employee's injury. The dispositive issue in this case, therefore, is whether the plaintiff's third child, who was conceived prior to the date of his compensable injury but was born after that date, was a child being "wholly or mainly supported" by the plaintiff at the time of the injury. The defendants argue that under the plain language of the statute the plaintiff is not entitled to a dependency allowance for his third child because a child en ventre sa mere ⁴ is wholly or mainly supported by its mother, not the father, who is the covered employee in this case. The defendants further assert that even if the child's mother was being supported wholly or mainly by the plaintiff at the time of the injury, the plaintiff is still not entitled to the allowance because § 31-308b does not provide for a dependency allowance for a spouse and therefore the plaintiff cannot assert that by supporting his wife during her pregnancy he was also supporting his child. ⁵ We disagree. ⁶

It is well established that the Workers' Compensation Act is remedial in nature and " 'that it should be broadly construed to accomplish its humanitarian purpose....' " Ash v. New Milford, 207 Conn. 665, 672, 541 A.2d 1233 (1988); Adzima v. UAC/Norden Division, 177 Conn. 107, 117, 411 A.2d 924 (1979); DeCarli v. Manchester Public Warehouse Co., 107 Conn. 359, 364, 140 A. 637 (1928). Construing the statute liberally advances its underlying purpose of providing financial protection for injured workers and their dependents. English v. Manchester, 175 Conn. 392, 397-98, 399 A.2d 1266 (1978); Powers v. Hotel Bond Co., 89 Conn. 143, 146, 93 A. 245 (1915).

The defendants' interpretation of § 31-308b ignores that canon of statutory construction. Although a rigid construction of the statute might lead to a conclusion that a child en ventre sa mere is wholly supported by his mother, such an interpretation would hardly seem to further the legislature's goal of providing financial protection for injured workers and their dependents. A review of the legislative history does not provide any evidence that the legislature intended to exclude from coverage children conceived prior to the date of an injury but born after that date and supported by the injured worker. See 12 S.Proc., Pt. 5, 1967 Sess., pp. 2254-61; 12 H.R.Proc., Pt. 7, 1967 Sess., pp. 3054-64, 3259-64, and Pt. 9, 1967 Sess., pp. 4032-51; Conn. Joint Standing Committee Hearings, Labor, 1967 Sess., p. 248. It therefore appears likely that the legislature never considered the situation at hand. We conclude, however, that such an oversight does not mandate that we deny the plaintiff a dependency allowance for his third child.

In Routh v. List & Weatherly Construction Co., 124 Kan. 222, 223-25, 257 P. 721 (1927), the Supreme Court of Kansas addressed a similar issue. The plaintiff in that case was a child of a worker who was injured after the date the child was conceived but born after the date of the worker's injury. Id., at 223, 257 P. 721. The worker died as a result of his injury shortly after the child's birth, and the child's mother brought an action on the child's behalf seeking to recover death benefits under the workers' compensation act. Id. Although the statute did not specifically provide for benefits for children born after a compensable injury, the court held that the child qualified for dependency benefits under provisions that defined dependents as " 'members of the workman's family as were wholly or in part dependent upon the workman at the time of the accident.' " Id., at 224-25, 257 P. 721. In reaching its conclusion, the court did not find it necessary to determine whether the worker was in fact supporting the child. Id., at 224-25, 257 P. 721. Rather, the court reasoned that " '[f]or certain purposes, indeed for all beneficial purposes, a child en ventre sa mere is to be considered as born.... It is regarded as in esse for all purposes beneficial to itself, but not to another....' " Id., at 224, 257 P. 721. Moreover, " '[a] child en ventre sa mere at the time of the father's death is deemed to have been born so far as it is for the benefit of such child, and will be entitled to claim compensation as a legal dependent, ... and the posthumous child of a deceased workman would have the same rights to compensation as other children.' " Id., at 224-25, 257 P. 721, quoting S. Harper, Workmen's Compensation (2d Ed.) p. 261; see also S.L.W. v. Workmen's Compensation Board, 490 P.2d 42, 46 (Alaska 1971); Ide v. Scott Drilling, Inc., 341 Mich. 164, 166-68, 67 N.W.2d 133 (1954); Workers' Compensation Division v. Halstead, 795 P.2d 760, 766-67 (Wyo.1990); see generally 2A A. Larson, Workmen's Compensation Law § 62.22(d), pp. 11-45--11-49; annot., 18 A.L.R.3d 900.

When the legislature adopted the "wholly or mainly supported" test for determining a worker's entitlement to a dependency allowance for children, it did not address the question of whether a child en ventre sa mere is supported by the worker, albeit indiretly, at the time of the injury. Because the test set forth in § 31-308b does not appear to have been formulated in contemplation of the circumstances in the present case, we should not apply the "wholly or mainly supported" test in a mechanical fashion. Rather, in light of our mandate to construe the Workers' Compensation Act liberally and in light of the fact that the worker has a statutory duty to support a child if it is subsequently born alive; General Statutes § 46b-215(a); we shall presume that a child conceived prior to a worker's injury is being wholly or mainly supported by the worker at the time of the injury for the purposes of determining the worker's eligibility for a dependency allowance. See 2A A. Larson, supra, p. 11-48.

Because we agree with the commissioner's decision that a worker can receive a dependency allowance only for the period subsequent to the child's birth, we note as a practical matter that the determination of eligibility for the dependency allowance for a child en ventre sa mere at the time of the worker's injury cannot be made until after the child has been born. At that point it can readily be determined whether the child is in fact being "wholly or mainly supported" by the worker. If the worker is not providing such support for the child after birth, the employer can invoke General Statutes § 31-315 ⁷ to argue that the...