CASE NO. 594 CRD-7-87Workers’ Compensation Commission
MARCH 28, 1989
The claimant was represented by Robert G. Montstream, Esq., Montstream May.
Respondents Stamford, Dental Lab, Huntergreen Dental Lab, Bon Dental Lab and Aetna Life Casualty were represented by Frank P. Blando, Esq.
Respondents Suburban Dental Laboratory and Greater New York Insurance Company were represented by Edward D. O’Brien Jr., Esq.
Respondents Michael Fieri, D.D.S. and Travelers Insurance Company were represented by Richard S. Stabnick, Esq., and Jason M. Dodge, Esq., Pomeranz, Drayton Stabnick.
Respondents Bonvini Dental Laboratory, Inc. and Bristol Dental Lab, Inc. were not represented at the trial level.
The Second Injury and Compensation Assurance Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General.
This Petition for Review from the May 1, 1987 Corrected Finding and Award of the Commissioner of the Eighth District acting for the Seventh District was heard September 16, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew Denuzze and Frank Verrilli.
OPINION
JOHN ARCUDI, Chairman.
Claimant’s appeal from the May 1, 1987 Corrected Finding and Award seeks to raise issues involved in the interpretation of Secs. 31-299b and 31-301(b).[1]
Claimant between 1933 and 1981 was employed at various times and places in and out of the state of Connecticut as a dental laboratory technician. After exposure to various metals, dusts and chemicals between 1959 and 1978 in these places of employment he suffered a compensable occupational disease, squamous cell carcinoma of the larynx. His laryngeal cancer was diagnosed July, 1981 and he underwent a laryngectomy July 14, 1981. In addition to the loss of his larynx, he also sustained a 25% impairment of each lung.
In his Finding and Award, the trial Commissioner apportioned the liability amongst the various respondents according to the period of exposure and the amount of time each insurer or employer was on the risk during claimant’s exposure. This apportionment is contained in paragraph #18 of the May 1, 1987 Corrected Finding and Award, as further corrected by the May 11, 1987 ruling. as follows:
% of Total Relevant Name of CT Period of Total Occupational Employer Employment Months Exposure in CT
1) No employer 1/1/59 — 48 * 20.0 @ in CT 12/31/62
2) Suburban 1/1/63 — 52 21.6 Dental Lab 4/30/67
3) No employer 5/1/67 — 19 * 7.9 @ in CT 11/31/68
4) Wilcox 12/1/68 — 2 0.8 Dental Lab 1/31/69
5) Stamford 1/8/69 — 17.75 7.4 Dental Lab 6/30/70
6) No employer 7/1/70 — 36 * 15.0 @ in CT 6/30/73
7) Bonvini 7/1/73 — 1.5 0.6 Dental Lab 9/30/73
8) No employer 7/1/73 — 1.5 * 0.6 @ in CT 9/30/73
9) Michael 10/1/73 — 3 1.2 Fieri, DDS 12/31/73
10) Bristol 1/1/74 — 3 1.2 Dental Lab 3/31/74
11) No employer 4/1/74 — 57 * 23.7 @ in CT 12/31/78 —— —— 240 100.0
* Employment by claimant taken from claimant’s Exhibit A, and reflects employment in New York and/or New Jersey.
@ Percentage calculated, but not payable by any Connecticut respondent.
Claimant argues that under the statute, Sec. 31-275(8) and (11),[2] there was a single injury to be compensated according to the law in existence at the time of injury. Sec. 31-307 as amended in 1980 states that for an “occupational disease, the time of injury shall be the date of total or partial incapacity to work as the result of such disease.” The Commissioner below found the first date of disability to be July 13, 1981, Finding #21. Accordingly, he set a compensation rate of $250.00 based on wages earned immediately prior to that date. Arguing further from this finding of a 1981 injury, claimant then contends that Sec. 31-299b should apply and that the last employer is initially liable for all the compensation due.
However, Sec. 31-299b did not become effective until October 1, 1981,[3] some months after the date of this employee’s injury. Therefore the short answer to appellant’s argument is that the statute on which he relies was not in effect in July of 1981. But the further contention, although not explicitly verbalized in his brief, seems to be that Sec. 31-299b is like Sec. 31-301(b) a procedural statute, Annechiarico v. Friendly Ice Cream Co., 6 Conn. Workers’ Comp. Rev. Op. 18, 640 CRD-7-87 (1988). If its reach were procedural it would not affect substantive rights but merely provide a mechanism for prompt payment with liability for such payment to be apportioned later. That argument might be tenable here if the Commission had jurisdiction over the total employment res which was the causative factor in creating this single injury, i.e. if there were no extra-territorial employers. We have no jurisdiction over the out-of-state employers involved, and the Connecticut employments were not the sole causes of the compensable injury.
Some states have simply made the last employer in the chain of causation liable for the entire injury.[4] But Connecticut has not done this with Sec. 31-299b. It specifically provides for apportionment of liability. Appellant’s argument instead would interpret Sec. 31-299b as analogous to a rule in tort law where any of several joint tort-feasors is liable for the entire verdict. That would be a gross misreading of the 1981 amendment. Also relevant is Sec. 31-355 which makes the Second Injury Fund a guarantor for payment of awards which the initially liable employer has not paid. Here again before an order for payment against the surety may enter, there must be authority to enter an award against the primary obligor, the employer. So the Commission would have no jurisdiction to order Sec. 31-355 payments by the Fund if we had no jurisdiction over the extra-territorial employment res.
We therefore dismiss the appeal and affirm the Finding and Award of the trial Commissioner.