Opinion
CASE NO. 1632 CRB-2-93-2
JANUARY 25, 1995
The claimant was represented by Mark W. Oberlatz, Esq., O'Brien, Shafner, Stuart, Kelly and Morris, P.C.
Respondent National Employers Company was represented by John Greiner, Esq.
Respondents CIGNA and Aetna Casualty Surety were represented by Jason M. Dodge, Esq. and Lucas D. Strunk, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the January 25, 1993 Finding and Award of the Commissioner acting for the Second District was heard March 25, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.
OPINION
The respondents have petitioned for review from the Second District Commissioner's granting of the claimant's motion to correct the Finding and Award dated January 25, 1993. The claimant, who began working for the respondent employer in 1958 and continued said employment at the time of the finding and award, was exposed to significant amounts of asbestos dust in the course of his employment between 1958 and 1976. In 1980, a chest x-ray indicated abnormalities in the claimant, who filed a notice of claim on August 8, 1981 alleging an injury to his lungs. The claimant began seeing a pulmonologist on March 13, 1984, and was found to have a restrictive pulmonary function consistent with asbestosis. A subsequent examination by the same doctor on October 31, 1985 uncovered a significant reduction in the claimant's lung volume, and the claimant was diagnosed as having a twenty to twenty-five percent loss of lung function due to prior asbestos exposure.
The commissioner found that the claimant suffered an injury to his lungs on December 9, 1980, as the result of continued work-related asbestos exposure, and that said injury resulted in a twenty percent permanent partial impairment of the claimant's lungs. He awarded the claimant compensation based upon the wage rate he was receiving on the date of his injury, with payments commencing on January 14, 1986 and continuing for 75 weeks. The claimant petitioned for review, but withdrew that petition once the commissioner granted his subsequent motion to correct the award by basing the compensation rate on the claimant's wages for the 26 weeks prior to January 14, 1986. The respondents then filed a petition for review from that decision. We reverse the finding of the trial commissioner.
A claimant's award of workers' compensation benefits should be based on the average weekly wage of the claimant at the time of injury. General Statutes § 31-310; O'Leary v. New Britain, 3 Conn. Workers' Comp. Rev. Op. 108, 110, 236 CRD-6-83 (1986). In the case of an occupational disease, the time of injury is the date the disease causes the claimant to be totally or partially incapacitated from working. General Statutes § 31-307;Stevens v. Raymark Corporation/Raybestos Manhattan, 28 Conn. App. 226, 229-30 (1992). Thus, the claimant's benefits should be determined on the basis of his wages at the time of incapacity. Id; see also Mulligan v. F.S. Electric, 12 Conn. Workers' Comp. Rev. Op. 91, 94, 1424 CRB-4-92-5 (1994).
Here, the commissioner found that "on December 9, 1980 claimant suffered an injury to his lungs in the form of asbestos which arose during and out of the course of his employment with the respondent-employer and that as a result of said injury he suffered a twenty percent permanent partial impairment of the lungs." The commissioner originally decided to base compensation on the claimant's December 9, 1980 wage rate, but changed the award after considering the claimant's motion to correct, which urged that the date of permanent partial disability was in fact January 14, 1986, and that under Stevens, supra, benefits should be based on his wages as of that date. We can find no evidence in the record to support this conclusion.
The commissioner's finding that the claimant suffered his injury on December 9, 1980, was not accompanied by another finding as to a different date of actual incapacity. In granting the motion to correct, he implicitly accepted January 14, 1986 as the date of actual incapacity. None of the evidence, however, supports the use of that date. Although the claimant's pulmonologist issued a report dated January 14, 1986, the letter itself indicates that the change in the claimant's lung volumes occurred between March 13, 1984 and October 31, 1985. Further, the claimant filed a notice of injury with the employer on August 8, 1981. The fact that the claimant continued in his employment all through this period of time does not, standing alone, constitute sufficient evidence of a January 14, 1986 date of incapacity, especially where the commissioner found that the date of injury was over five years earlier.
The trial commissioner's decision is reversed and the case is remanded to the Second District for further findings consistent with this opinion.
Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.