| Date: | 10/08/1999 |
|---|---|
| Organization: | Department of Industrial Accidents |
| Docket Number: | DIA Board Nos. 02545494, 04094494, 00057295, 04094594, 02545294, 02500794 |
| Location: | Boston |
- Employee: Beverly Messinger (claimaint), Donald Messinger (deceased)
- Employer: Bethlehem Steele Corp., Thompson & Lichtner Co., Inc., Teledyne Components, Inc., General Dynamics Corp.
- Insurer: Bethlehem Steele Corp., Liberty Mutual Ins. Co., Transportation/CNA Ins. Co., Argonaut Midwest Insurance Co., Workers’ Compensation Trust Fund, CIGNA Companies
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.