No. 02545494 (1999). EMPLOYEE: Donald Messinger (deceased).

• Case Date: October 08, 1999
• Court: Massachusetts

Massachusetts Workers Compensation 1999. No. 02545494 (1999). EMPLOYEE: Donald Messinger (deceased) COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Donald Messinger (deceased) CLAIMANT: Beverly Messinger EMPLOYER: Bethlehem Steel Corp. INSURER: Bethlehem Steel Corp. EMPLOYER: Thompson and Lichtner Co., Inc. INSURER: Liberty Mutual Insurance Co. EMPLOYER: Teledyne Components, Inc. INSURER: Transportation/CNA Insurance Co. INSURER: Argonaut Midwest Insurance Co. INSURER: Workers' Compensation Trust Fund EMPLOYER: General Dynamics Corp. INSURER: CIGNA CompaniesBOARD NOS. 02545494, 04094494, 00057295, 04094594, 02545294, 02500794REVIEWING BOARD DECISION (Judges Wilson, McCarthy and Smith)APPEARANCES John K. Ford, Esq., for the employee and claimant Scott E. Richardson, Esq., for Bethlehem Steel at hearing Clyde B. Kelton, Esq., for Liberty Mutual Paul M. Scannell, Esq., for Transportation at hearing Michael J. Grace, Esq., for CIGNA at hearing Pamela Smith, Esq., for Argonaut at hearing Paul R. Ingraham, Esq., for Workers' Comp. Trust Fund at hearing WILSON, J. The claimant appeals the decision of an administrative judge, who awarded widow's benefits pursuant to §§ 31, 32 and 51A, but denied her late husband's claim for § 34 weekly benefits during the seventeen month period between his diagnosis of malignant mesothelioma related to asbestos exposure at work and his death. The judge denied the § 34 claim because she found that the employee was already totally incapacitated from a non-work-related condition at the time of the diagnosis of malignant mesothelioma and, therefore, did not suffer a diminished earning capacity from the effects of the work-related disease. For the reasons set forth below, we conclude that the judge should revisit her finding that the employee was totally incapacitated prior to his diagnosis with cancer, and we recommit the case to the administrative judge for further findings on the extent of the employee's incapacity just prior to his mesothelioma diagnosis. Donald Messinger was a certified radiographer, who held several jobs that exposed him to asbestos between 1956 and 1988 (Dec. 7 - 9). In 1963, he underwent a kidney transplant for a condition unrelated to his work, after which he generally enjoyed good health and an unrestricted lifestyle until his kidneys began to fail in 1990. (Dec. 10.) He terminated all employment in 1992, when he began kidney dialysis three times a week in four-hour sessions. (Dec. 10.) His last position was strictly an office job. (Dec. 10.) Two years later, in 1994, the employee became breathless while working in his garden. He was taken to Brigham and Women's Hospital where, on May 24, 1994, he was diagnosed with malignant mesothelioma. (Dec. 11, 23.) He was subsequently removed from the kidney transplant list because the cancer made him a poor candidate for such a surgery. (Dec. 11.) On October 26, 1995, he died at the age of sixty-one of pulmonary failure, which resulted from the malignant mesotheliomia. (Dec. 7, 11, 24.) Before his death, the employee had filed claims against a number of insurers for § 34 weekly benefits from the approximate date of his diagnosis with malignant mesothelioma. (Dec. 2.) His claims were not accepted and a § 10A conference was held on January 4, 1995, after which an administrative judge denied the claims. He filed an appeal giving rise to a hearing de novo. After Mr. Messinger's death, the employee's attorney moved to join a claim for § 31 benefits for his widow, Beverly Messinger. (Dec. 5.) The hearing proceeded on the employee's...