Green v. General Dynamics Corp.

• Decision Date: 09 June 1998
• Docket Number: No. 15649,15649
• Citation: 712 A.2d 938,245 Conn. 66
• Court: Connecticut Supreme Court
• Parties: Celestina GREEN v. GENERAL DYNAMICS CORPORATION, ELECTRIC BOAT DIVISION, et al.

Page 938

712 A.2d 938

245 Conn. 66

Celestina GREEN v. GENERAL DYNAMICS CORPORATION, ELECTRIC BOAT DIVISION, et al.

No. 15649.

Supreme Court of Connecticut.

Argued Oct. 30, 1997.

Decided June 9, 1998.

Amy M. Stone, New Orleans, LA, for appellant (claimant).

Lucas D. Strunk, Glastonbury, for appellees (named respondent et al.).

Robert F. Carter, Woodbridge, and Joram Hirsch, Bridgeport, filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

Before CALLAHAN, C.J., and BORDEN, BERDON, NORCOTT and McDONALD, JJ.

McDONALD, Associate Justice.

The issue in this case is whether the dependent widow of a former employee with a long latent occupational disease contracted from conditions of the workplace who is retired and unemployed at the time of his incapacitation and death from the disease is entitled to dependent's weekly death benefits.

The facts are not in dispute. Ernest Green (employee) was a full-time employee of the named respondent, the Electric Boat Division of General Dynamics Corporation (Electric Boat), from 1949 until he retired in June, 1978. During the course of his employment and arising out of it, the employee was exposed to asbestos and contracted malignant mesothelioma, a form of cancer. The employee, however, had no symptoms, was capable of working and did so until he retired from Electric Boat at the age of fifty-four. He was thereafter employed from 1981 to 1985 at the Norwich Convalescent Home.

In July, 1989, the employee was first diagnosed with cancer, from which he died the following December. His wife, Celestina Green (claimant), filed a claim for dependent's workers' compensation death benefits from Electric Boat. ¹ Electric Boat contested the claim and a hearing was held by the workers' compensation commissioner for the second district (commissioner). At that hearing, the claimant presented evidence of the employee's average weekly wages at Electric Boat for the twenty-six weeks preceding his retirement. In 1993, the commissioner awarded the claimant dependent's death benefits at a weekly rate based on the employee's last wages at Electric Boat, subject to the statutory maximum compensation rate in force at the time of his incapacity. Electric Boat appealed from the award to the compensation review board (review board).

The review board affirmed the award. It found that the commissioner properly had awarded dependent's death benefits to the claimant and properly had determined the weekly compensation rate to be paid to the claimant. The review board based its decision on its interpretation of General Statutes (Rev. to 1989) § 31-306, ² and a retroactive application of General Statutes (Rev. to 1991) § 31-310c. ³

Electric Boat appealed from that decision to the Appellate Court, which, in a closely divided opinion, reversed the review board's decision and denied the claim for weekly benefits. Green v. General Dynamics Corp., 44 Conn.App. 112, 120, 687 A.2d 550 (1996). The Appellate Court held that the claimant is not entitled to weekly benefits because the employee had no wages during the twenty-six weeks preceding the manifestation of the disease; id., at 119, 687 A.2d 550; the "time of injury" in occupational diseases. General Statutes (Rev. to 1989) § 31-306(b)(2). We granted the claimant's petition for certification ⁴ and now reverse the judgment of the Appellate Court.

Electric Boat concedes that the employee's injuries, from mesothelioma due to asbestos exposure, arose out of and in the course of his employment with Electric Boat. It is undisputed that mesothelioma was the cause of his death. Electric Boat also does not contest the award of funeral expenses to the claimant. Rather, it claims that, under § 31-306, the weekly benefits to a dependent spouse are nothing because the employee had no weekly wages, at "the time of injury," upon which to base a calculation of benefits. Our workers' compensation law refutes that argument.

We begin by examining the purpose of the Workers' Compensation Act (act). In interpreting the act, we must "ascertain the intent of the legislature and ... construe the statute in a manner that effectuates that intent." (Internal quotation marks omitted.) Starr v. Commissioner of Environmental Protection, 236 Conn. 722, 737, 675 A.2d 430 (1996). We have found previously that the act "is to be broadly construed to effectuate the purpose of providing compensation for an injury arising out of and in the course of the employment.... The purposes of the act itself are best served by allowing the remedial legislation a reasonable sphere of operation considering those purposes." (Citations omitted; internal quotation marks omitted.) Mingachos v. CBS, Inc., 196 Conn. 91, 97, 491 A.2d 368 (1985). Furthermore, as a general rule of statutory construction, we must construe the act in its entirety, to "produce a harmonious whole," rather than looking at each part separately and in isolation. State v. Spears, 234 Conn. 78, 91, 662 A.2d 80, cert. denied, 516 U.S. 1009, 116 S.Ct. 565, 133 L.Ed.2d 490 (1995).

The act provides the sole remedy for employees and their dependents for work-related injuries and death. General Statutes § 31-284. ⁵ We have observed that "both the employer and the employee have relinquished certain rights to obtain other advantages. The employee no longer has to prove negligence on the part of the employer, but, in return, he has to accept a limited, although certain, recovery.... The employer, in turn, guarantees compensation to an injured employee in return for the exclusivity of the workers' compensation liability to its employees." (Citation omitted.) Bouley v. Norwich, 222 Conn. 744, 752, 610 A.2d 1245 (1992). Workers' compensation guarantees weekly benefits for a permanent loss of earning capacity, based on the employee's average weekly wage, to an employee and the employee's dependents for injuries suffered in the course of employment. Cappellino v. Cheshire, 226 Conn. 569, 575, 628 A.2d 595 (1993); Ancona v. Norwalk, 217 Conn. 50, 56, 584 A.2d 454 (1991).

As Arthur Larson points out: "The normal unit by which benefits are measured consists of a fixed statutory percentage ... of average weekly wage.... [T]he entire objective is to arrive at as fair an estimate as possible of [a] claimant's future earning capacity...." (Internal quotation marks omitted.) 5 A. Larson & E. Larson, Workers' Compensation Law (1997) § 60.00, p. 10-604. In the case of permanent disability, it is the loss of earning capacity rather than the actual wage loss that is considered. Howell v. Supermarkets General Corp., 340 A.2d 833, 836 (Del.1975).

In this case, the employee's capacity to earn income was permanently destroyed by his long latent occupational disease. His disease, mesothelioma, contracted at Electric Boat, has an extensively long latency period, between twenty-five and forty years. See Nevada Industrial Ins. System v. Jesch, 101 Nev. 690, 692, 709 P.2d 172 (1985). Such long latency occupational diseases do present unique workers' compensation problems, as we have here. State ex rel. Liposchak v. Industrial Commission, 73 Ohio St.3d 194, 196, 652 N.E.2d 753, reconsideration denied, 74 Ohio St.3d 1410, 655 N.E.2d 188 (1995). As the Pennsylvania Supreme Court observed: "Occupational diseases are, from a legal standpoint, peculiar in this--that they arise, not from an accident or event happening at a precise moment, but from a day by day exposure to unhealthful conditions over an extended period; the exact time of their origin is necessarily obscure and their insidious progress is not revealed until, frequently after a long interval, the disability which they create manifests itself." McIntyre v. E.J. Lavino & Co., 344 Pa. 163, 165-66, 25 A.2d 163 (1942).

When the original act was passed in 1913, it awarded benefits only to those injured in industrial accidents and not to those incapacitated as a result of an occupational disease. Public Acts 1913, c. 138; Miller v. American Steel & Wire Co., 90 Conn. 349, 97 A. 345 (1916). In 1927, the General Assembly amended the act's definition of injury to include occupational diseases. ⁶ Public Acts 1927, c. 307, § 7. In the case of an occupational disease, the General Assembly provided that the date of injury was to be determined by the date of incapacity to work. That definition appeared in General Statutes (Rev. to 1989) § 31-306(b)(2) concerning death benefits; see footnote 2; which was in effect at the time of the claimant's application for benefits.

In Rousu v. Collins Co., 114 Conn. 24, 31, 157 A. 264 (1931), and later in Michna v. Collins Co., 116 Conn. 193, 199-200, 164 A. 502 (1933), cases concerning long latent occupational diseases, this court held that in the case of an employee working at the time of his incapacitation, the wages at the time of the incapacitation and not those at the time of the employment during which the disease was contracted should be used to calculate the loss of earning power.

In Mulligan v. F.S. Electric, 231 Conn. 529, 540, 651 A.2d 254 (1994), this court also held that if an employee is working at the time of incapacitation from an occupational disease, wages at that time should be used to compute the average weekly wages for the calculation of weekly benefits. Although an injury and resulting incapacity are substantially coincident in most instances, in Mulligan there was considerable time intervening between the actual injury and the incapacity. Id., at 533, 651 A.2d 254. The court in Mulligan held that the loss should be measured by the earnings at the time the loss occurs, rather than the earnings at the time of the actual injury. Id., at 541, 651 A.2d 254. We there reasoned that the wages at the time of the injury may be so remote that changing conditions render them incapable of reflecting the present value of the lost earning power. Id. That reasoning does not require the denial of weekly benefits here. Rather, workers'...