McGowan v. General Dynamics Corp./Elec. Boat Div., s. 5910

• Decision Date: 23 August 1988
• Docket Number: 5913,Nos. 5910,s. 5910
• Citation: McGowan v. General Dynamics Corp./Elec. Boat Div., 546 A.2d 893, 15 Conn.App. 615 (Conn. App. 1988)
• Court: Connecticut Court of Appeals
• Parties: Charles McGOWAN v. GENERAL DYNAMICS CORPORATION/ELECTRIC BOAT DIVISION et al. Sebastian SEMATARO v. GENERAL DYNAMICS CORPORATION/ELECTRIC BOAT DIVISION et al.

Page 893

546 A.2d 893

15 Conn.App. 615

Charles McGOWAN v. GENERAL DYNAMICS CORPORATION/ELECTRIC BOAT DIVISION et al.

Sebastian SEMATARO v. GENERAL DYNAMICS CORPORATION/ELECTRIC BOAT DIVISION et al.

Nos. 5910, 5913.

Appellate Court of Connecticut.

Argued March 3, 1988.

Decided Aug. 23, 1988.

Lucas D. Strunk, with whom, on the brief, was James L. Pomeranz, Hartford, for appellants (defendants in both cases).

Stephen C. Embry, Groton, filed a brief for appellee (Charles McGowan, plaintiff in the first case).

Carolyn P. Kelly, Groton, for appellee (Sebastian Semataro, plaintiff in the second case).

Before DUPONT, C.J., and BORDEN and FOTI, JJ.

DUPONT, Chief Judge.

The single question presented in this combined appeal is whether an award received pursuant to the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901 through 950 (1986), is to be wholly credited against a subsequent award arising out of the same injury under the Connecticut Workers' Compensation Act, General Statutes §§ 31-275 through 31-355a. We hold that the award under the LHWCA must be so credited.

The plaintiffs, Charles McGowan and Sebastian Semataro, sustained injuries during the course of their employment with the named defendant, the Electric Boat Division of the General Dynamics Corporation. ¹ Both plaintiffs filed claims pursuant to the LHWCA for the injuries suffered and were awarded compensation benefits under that federal act. The plaintiff McGowan received a total award of $41,006.76, comprised of $20,378.50 in temporary total disability benefits, $9792.82 in permanent partial disability benefits, a $10,000 lump sum settlement and an overpayment of $835.45. The plaintiff Semataro received a total award of $56,994.06, comprised of $29,805.42 in temporary total disability benefits and $27,188.64 in permanent partial disability benefits.

The plaintiffs subsequently filed claims under the Connecticut Workers' Compensation Act based on the same injuries for which compensation had been awarded under the LHWCA. The parties stipulated as to each plaintiff that Connecticut had jurisdiction to hear the claims, that compensable injuries had been suffered, and that compensation benefits had been awarded under the LHWCA. It was further stipulated that the total award to which McGowan was eligible under the Connecticut Workers' Compensation Act was $33,932.49, comprised of $30,492.39 in temporary total disability benefits and permanent partial disability benefits, and $3440.10 for permanent scarring. ² It was also stipulated that Semataro was eligible under the Connecticut act for a total award of $46,723.95, comprised of $43,489.95 in temporary total disability benefits and permanent partial disability benefits, and $3234 for scarring pursuant to General Statutes § 31-308(d). Thus, the total benefits awarded each plaintiff under the LHWCA exceeded the total benefits available under Connecticut law.

The plaintiffs claim that, in addition to the total benefits awarded under the LHWCA, they are also entitled to the benefits under the Connecticut act allocated for scarring, as no such benefits were received under the LHWCA. ³ The defendants argue that the total amount awarded under the LHWCA should be credited against the total award allowable under the Connecticut act. As the former exceeded the latter, the defendants reason that any additional award under the Connecticut act, including that for scarring, was improper. In contrast, the plaintiffs argue that credit for the award under the LHWCA should be determined by comparing the amount awarded in each specific category of benefits under each act rather than by comparing the total awards. The plaintiffs claim that since no award was made for scarring under the LHWCA, no credit was applicable to the scarring benefits awarded under the Connecticut act and, therefore, the latter should be awarded to the plaintiffs in addition to the total amount awarded under the LHWCA. The plaintiffs do not dispute, however, that the benefits awarded under the LHWCA for temporary total and permanent partial disability should be credited against the award available under the Connecticut act in those specific categories of benefits.

The workers' compensation commission awarded McGowan and Semataro, respectively, $3440.10 and $3234, which amounts represented benefits for scarring pursuant to § 31-308(d). The defendants appealed the awards to the compensation review division, which affirmed the awards of the commissioner. This appeal followed. We find error.

In Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458, reh. denied, 448 U.S. 916, 101 S.Ct. 37, 65 L.Ed.2d 1179 (1980), the United States Supreme Court held that there is concurrent jurisdiction between state workers' compensation acts and the LHWCA for, as in this case, land based injuries sustained by maritime workers. The Supreme Court made clear, however, that its recognition of concurrent jurisdiction did not sanction double recovery. "[T]here is no danger of double recovery under concurrent jurisdiction since employers' awards under one compensation scheme would be credited against any recovery under the second scheme." (Emphasis added.) Id., at 725 n. 8, 100 S.Ct. at 2439 n. 8. Footnote 8 in Sun Ship, cited Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962), in which "the full amount of all payments made by the employer [under the Louisiana Compensation Act] was credited against the award [under the LHWCA], and no impermissible double recovery [was] possible." (Emphasis added.) Id., at 131, ⁴ 82 S.Ct. at 1206.

The crux of the plaintiffs' argument is that the category by category credit scheme which they advance does not result in double recovery. They argue that as no benefits for scarring were awarded the plaintiffs under the LHWCA, it follows that an award of benefits for scarring under the Connecticut act does not constitute double recovery. We find no indication in the Sun Ship decision, however, that the Supreme Court envisioned a credit system by which each specific category of benefits awarded under each act is to be compared. The language used in the Sun Ship and Calbeck decisions, addressing the crediting of awards in a system of concurrent jurisdiction, indicates that any amount awarded under one scheme is to be credited in full against any award available under the second scheme. ⁵

The category by category credit system, if followed in this case, would allow the plaintiffs to recover total awards greater than that available under either the federal or state act alone. Congress amended the LHWCA in 1972 to include coverage of land based injuries sustained by maritime workers; 33 U.S.C. § 903(a); in order to upgrade the benefits available for such injuries to a federal minimum in light of a "paucity of relief under state compensation laws." (Emphasis omitted.) Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 723, 100 S.Ct. at 2438. ⁶ In articulating a system of concurrent jurisdiction, the Supreme Court recognized that "if state remedial schemes are more generous than federal law, concurrent jurisdiction could result in more favorable awards for workers' injuries than under an exclusively federal compensation system. But we find no evidence that Congress was concerned about a disparity between adequate federal benefits and superior state benefits." (Emphasis in original.) Id., at 724, 100 S.Ct. at 2438-39. We find this passage expressive of the Supreme Court's conclusion that if a total state award exceeded an award under the LHWCA, Congressional intentions were not offended by allowing a claimant to reap the benefits of the superior state award.

The plaintiffs propose, however, that they should be awarded the superior federal benefits as well as the superior benefits awarded under the Connecticut act. If the plaintiffs' proposition were true, the plaintiffs would receive awards for scarring which the federal scheme would not allow, thereby obtaining total awards greater than that available under either act alone. We find no indication that Congress, by amending the LHWCA to upgrade benefits to a federal minimum, or the Supreme Court, in articulating a scheme of concurrent jurisdiction, envisioned a system of crediting by which a claimant would receive a greater recovery than that available under either act alone. See A. Larson, "The Conflict of Laws Problem Between the Longshoremen's Act and State Workmen's Compensation Acts," 45 S.Cal.L.Rev. 699, 736-37 (1972) ("So far as the employer is concerned, the worst that can happen to him is ... [that he] ends by giving the employee the benefit of the Act that happens to be more favorable.").

Furthermore, the plaintiffs' position is inconsistent with the 1984 amendments to the LHWCA, which, inter alia, added the following paragraph to the federal act: "Notwithstanding any other provisions of law, any amounts paid to an employee for the same injury, disability, or death for which benefits are claimed under this chapter pursuant to any other workers' compensation law ... shall be credited against any liability imposed by this chapter." 33 U.S.C. § 903(e) (applicable to claims pending and filed after September 28, 1984). It is at best paradoxical to suggest that Congress intended that "any amounts paid" under a state act be credited against "any liability imposed" by the LHWCA, but that, as the plaintiffs argue, awards first received pursuant to the LHWCA should be offset against subsequent state awards on a category by category basis. See C. Davis, "Concurrent Compensation Systems and the Exclusive Remedy Rule," 4 Connecticut Workers' Compensation Review Opinions, No. 1, pp. vi-x (1988).

We are also unable to reconcile the credit system advocated by the plaintiffs with the exclusive remedy provision of the Connecticut Workers' Compensation Act. General Statutes § 31-284 ⁷ provides that the Connecticut...