Green v. General Dynamics Corp.

BORDEN, J.,

dissenting. I agree with the majority that the plaintiff dependent widow in this case is entitled to benefits. I disagree, however, that those benefits are to be measured by General Statutes § 31-310c. I would conclude that: (1) § 31-310c is not retroactive; (2) the Appellate Court was incorrect in deciding that because the calculation of the decedent’s average weekly wage amounted to zero under General Statutes (Rev. to 1989) § 31-310, there were no dependent death benefits payable under General Statutes (Rev. to 1989) § 31-306 (b) (2); and (3) the applicable statute for the calculation of dependent death benefits is General Statutes (Rev. to 1989) § 31-310, namely, “the average weekly wage prevailing in the same or similar employment in the same locality at the time of injury . . . .” (Emphasis added.) This means that because the decedent became *80incapacitated in July, 1989, which is the date of injury for an occupational disease, his dependents are entitled to benefits calculated on that basis.

I do not believe that § 31-310c was intended by the legislature to be retroactive. First, that section sets up a two part calculation, and provides that the greater of the two calculations will be the applicable calculation. Nowhere in prior practice or law has this kind of two part calculation been recognized.

Second, our statutes provide a presumption that legislation is prospective; General Statutes § 55-3;1 and we have generally required a strong showing of legislative intent to overcome that presumption. See Rice v. Vermilyn Brown, Inc., 232 Conn. 780, 786, 657 A.2d 616 (1995) (“ ‘[W]e have uniformly interpreted § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only. . . . The Legislature only rebuts this presumption when it clearly and unequivocally expresses its intent that the legislation shall apply retrospectively.’ ”). As I explain in more detail later in this opinion, there is no such showing here. I do not think that legislation addressing a particular question can be deemed retroactive simply because a problem of interpretation has arisen. If that were all it took, the exception would swallow the statutory rule.

Third, the available legislative history is insufficient to draw the inference of retroactivity. The principal support offered by the majority for such an inference is the statement of Representative Joseph A. Adamo to the effect that the legislation would maintain the “status quo.” 33 H.R. Proc., Pt. 7, 1990 Sess., p. 2305. That *81statement, however, was in response to a question asking what the fiscal effect of the legislation would be— whether the amount of the benefits under the legislation would be more or less than under prior law.2 The statement by Representative Adamo was not in response to a question asking whether the legislation was intended to clarify the meaning of the preexisting legislation. Indeed, during the same exchange, Representative Francis X. O’Neill described the bill as establishing “a new method for calculating the average weekly wage of a claimant” with an occupational disease. Id.

The only evidence in the legislative history suggesting possible retroactivity is a statement at the public hearing by a union official, George Strutt, on a separate, albeit similar, bill. Strutt commented that that other bill “merely clarifies the present law on average weekly wages . . . [and] is merely designed to clarify the present practice used in Connecticut, and to provide the protection for workers whose condition develops after retirement.” Conn. Joint Standing Committee Hearings, Labor and Public Employees, Pt. 1, 1990 Sess., p. 318. If that kind of language had been repeated in the legislative debate, there would be a stronger case for retroac-tivity. One isolated statement by a nonlegislator at a *82public hearing on a different, albeit similar, bill is not enough, however, to establish a strong showing of legislative intent of retroactivity, particularly where, as here, the bill as passed has the new, two part calculation discussed previously.3

Having concluded that § 31-310c is not retroactive, and therefore cannot govern this case, I turn to the next question: what statute, if any, does control? The Appellate Court reasoned that because the decedent became incapacitated by the disease long after he had ceased working for the employer, the benefits calculation of General Statutes (Rev. to 1989) § 31-306 (2) (“the average weekly earnings of the deceased [employee] at the time of [his] injury”) yielded nothing because he was not working at that time. Green v. General Dynamics Corp., 44 Conn. App. 112, 119, 687 A.2d 550 (1996). From this, the court reasoned that, therefore, no benefits were payable to the dependent widow. Id. This reasoning seems to allow the tail to wag the dog.

If an employee died from an occupational disease while still employed, pursuant to General Statutes (Rev. to 1989) § 31-306 (2) his dependents would get benefits calculated under General Statutes (Rev. to 1989) § 31-310. Under that calculation formula, if he had worked for the employer for two weeks or more, his average weekly wages or earnings are calculated by taking his total wages for the twenty-six weeks prior to the injury or incapacity and dividing that total by the number of weeks he actually works. If he had worked, however, *83for less than two weeks, his average weekly wage “shall be considered to be equivalent to the average weekly wage prevailing in the same or similar employment in the same locality at the time of injury . . . .” General Statutes (Rev. to 1989) § 31-310.

This formula, however, does not specifically cover the case in which, as in this case, the employee died from the occupational disease long after he had stopped working for the employer in whose employment he had contracted the disease. This circumstance leaves the court with two alternatives: (1) we could conclude, as the Appellate Court did, that no benefits are payable; or (2) we could attempt to determine from the available statutory language what benefits are payable. I conclude that the second alternative is more consistent with the entire workers’ compensation statutory scheme.

First, as the majority points out, workers’ compensation legislation is remedial. Second, it cannot be said that the legislature, by neglecting to articulate a specific calculation formula for this kind of situation, intended the dependents to have no coverage. It is likely that many occupational diseases do not manifest themselves until years later. I do not think that the legislature meant to cover only those that have a short enough latency period that the diseased workers become incapacitated while still working. That would be a bizarre result, and would result in a windfall to the employer.

The judicial task, therefore, is to determine what statute reasonably might be said to apply. The only one available, it seems to me, is that part of General Statutes (Rev. to 1989) § 31-310 that applies when the employee worked less than two weeks. In the absence of this problem, I think that that language was not intended to cover this kind of case. Rather, it seems to have been *84directed at the situation where the employee did work for the employer immediately preceding the date of incapacity but for less than two weeks. The language is at least susceptible of a meaning that covers this case because in a literal sense, the decedent worked for the employer “less than a net period of two calendar weeks” immediately prior to his incapacity — namely, zero weeks. This would indicate that the benefits are to be calculated under that part of General Statutes (Rev. to 1989) § 31-310, which means the prevailing wage at the time of the decedent’s incapacity. Because that figure was never calculated, the case would have to be remanded to the workers’ compensation commissioner to make that calculation.

I would, therefore, reverse the judgment of the Appellate Court and remand the case to that court for further remand to the workers’ compensation commissioner for calculation of the plaintiff’s dependent death benefits under General Statutes (Rev. to 1989) § 31-310.

General Statutes § 55-3 provides: “Limitation of effect of certain acts. No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect.”

The legislative history contains the following colloquy:

“[Representative Francis X.] O’Neill: (98th) Representative Adamo, I’m just reading here in the OLR bill analysis . . . and it says, establishes a new method for calculating the average weekly wage of a claimant, etc. etc. with occupational disease. Is this going to increase or lower the payments?

“Speaker [Richard X] Balducci: Representative Adamo.

“[Representative Joseph A.] Adamo: (116th) Through you, Mr. Speaker, our thought is that it will probably become static. It simply puts into law a standard not there now, commissioner, I’m sorry, Representative.

“[Representative] O’Neill: (98th) Through you, Sir, then it could raise it or it could lower it or it could maintain the status quo?

“[Representative] Adamo: (116th) Through you, Mr. Speaker, my sense is that it will probably most likely retain the status quo. As I stated earlier, it just put the statute, a method of doing it. Right now the statutes are silent. In most of these cases that are litigated, I think it would save litigation.” (Emphasis added.) 33 H.R. Proc., Pt. 7, 1990 Sess., p. 2305.

I recognize that we recently inferred retroactive intent on a similar record in Toise v. Rowe, 243 Conn. 623, 707 A.2d 25 (1998). That case, however, is distinguishable. The public hearing witness was an official of the state agency that was affected. There was a preexisting conflict between the agency’s understanding of the law and a regulation that created a controversy. There was no legislative history to the contrary, and the statute determined to be retroactive did not have a wholly new standard, as § 31-310c does.