Thursday, September 27, 2007

Asbestos Claim won by Air Guard mechanic's widow

A Windsor Locks woman whose husband died of respiratory failure in 2003 while suffering from asbestosis, apparently stemming from asbestos exposure during his 32-year career as an aircraft mechanic for the Connecticut Air National Guard, will receive workers compensation benefits.

The woman, Rita M. Fredette, won the right to the benefits through a state Supreme Court decision this month, following an extended legal tussle with the state that turned entirely on procedural issues.

Fredette is the widow of John O. Fredette, who died at age 65 on March 25, 2003. He worked as a civilian mechanic for the Air National Guard from July 1960 until he retired at the end of 1992.

The medical validity of the claim never was litigated before the state Workers Compensation Commission because the state claims administrator missed a 28-day deadline for contesting Rita Fredette's claim. As a result, a workers compensation commissioner granted a motion by her lawyer to preclude the state from contesting the compensability of her claim.

But the state fought back, arguing that the Workers Compensation Commission lacked jurisdiction over the case because Rita Fredette filed her claim too late.

The case turned on the interrelationship of two provisions in the state's workers compensation law setting different deadlines for filing claims. The issue was technical and legally complex, but the state Supreme Court ultimately ruled that Rita Fredette filed her claim on time because it came less than three years after her husband's diagnosis with asbestosis of the lung.

It isn't entirely clear whether Rita Fredette's workers compensation claim would have succeeded if the state claims administrator had met the deadline for contesting it.

The notice of workers compensation claim filed in May 2003 by Rita Fredette's former lawyer, Richard L. Gross, lists the nature of John Fredette's injury as follows: "Occupational disease/pulmonary asbestosis from exposure to asbestos as an aircraft mechanic and death caused by complications of occupational disease."

Different picture

But in a death certificate on file at the Windsor Locks town clerk's office, Dr. Martin Forrest of Hartford, who was John Fredette's internist, certified the cause of death as respiratory failure due to "pneumo thorax," which, in turn, was due to "bullous emphysema."

Pneumothorax - which John Fredette suffered in the last three days of his life, according to the death certificate - is a type of lung collapse caused by leakage of air into the space between the lungs and the chest wall.

Bullous emphysema - which the death certificate says he suffered for more than 20 years - involves complete destruction of lung tissue, producing an air space greater than a centimeter in diameter.

Smoking is the most common cause of emphysema. A Hartford Hospital discharge summary from the September 2000 admission during which John Fredette was diagnosed with asbestosis of the lung says he "quit tobacco use approximately 10 years ago."

Asbestosis is listed on the death certificate under the heading, "Other significant conditions: Conditions contributing to death but not related to cause."

Manchester lawyer Brian E. Prindle, an emeritus member of the Connecticut Bar Association's Workers Compensation Executive Committee who isn't involved in the Fredette case, said death certificates aren't the final word on the validity of a workers compensation claim.

"The legal test for workers compensation is if asbestos exposure is a substantial factor in causing his death," Prindle said. He said doctors aren't trying to make that legal determination when filling out death certificates.

John Fredette's death certificate shows that no autopsy was done on him, and Prindle said that is common.

"Death certificates typically might carry some evidentiary weight but not typically very much," said East Hartford lawyer Robert J. Enright, who heads the bar association's Workers Compensation Section. He said the determination of cause is typically based on medical records and the deposition testimony of doctors.

Matthew Shafner, a partner in the Groton law firm representing Rita Fredette, said the death certificate would "not really" have been a problem if she had had to prove her case.

Combined cause?

"They both combined to cause significant problems," Shafner said of the emphysema and asbestosis. "The last person in the world who should be exposed to asbestos is a person who has an emphysema problem. They don't have much margin of tolerance for another pulmonary insult."

Rita Fredette declined requests for an interview, citing the emotion surrounding her husband's death.

The amount of compensation she will receive hasn't yet been determined, according to Betty Rainey, the administrator of the Workers Compensation Commission's 8th District office in Middletown, which handles asbestos cases from throughout the state.

But Prindle said the calculation of workers compensation benefits is usually a straightforward process based on formulas - and often can be accomplished without a formal hearing. He said a dependent would be entitled to 75 percent of the employee's after-tax earnings - or the earnings of someone doing his former job - plus a $4,000 burial allowance.

John Fredette was diagnosed with asbestosis in September 2000, when he went to Hartford Hospital with chest pains after painting a snow blower and spreading fertilizer on his lawn, according to the hospital discharge summary, which is part of the court record.

He told medical personnel at that time that he had experienced difficult or painful breathing on exertion for several years, with the condition growing progressively worse.

John Fredette also reported a history "of significant asbestos exposure in the National Guard," and Forrest agreed that he had "extensive asbestos exposure and asbestosis," according to the discharge summary.

At the time of the hospital admission, John Fredette had an "intermittent nonproductive cough" and couldn't complete sentences without shortness of breath, the discharge summary says. He was sent home on oxygen therapy.


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