Opinion
CASE NO. 833 CRD-4-89-3
MAY 11, 1990
The claimant was represented by Mark Oberlatz, Esq., O'Brien, Shafner, Bartinik, Stuart Kelly.
The respondents were represented by Thomas H. Cotter, Esq., Cotter, Cotter Sohon P.C.
This Petition for Review from the March 14, 1989 Finding and Award of the Commissioner for the Fourth District was heard February 23, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and George Waldron.
OPINION
Respondents question the Fourth District March 14, 1989 Finding and Award. They argue that claimant's average weekly wage was incorrectly determined.
The pertinent facts are as follows: Claimant was exposed to asbestos during employment with the respondent employer from 1972 to 1979. He was diagnosed as suffering from infiltrative lung disease related to asbestos in April 1985. That exposure caused him to suffer a 46.25% permanent partial disability of both lungs.
The factual findings of the trial commissioner as reviewed above are not in dispute and were stipulated to by the parties.
The trial commissioner awarded 161.87 weeks of specific indemnity benefits for the 46.25% permanent partial disability of both lungs and ordered the compensation rate be calculated on the basis of twenty-six weeks earnings before June 22, 1987, the date claimant was found to have a permanent partial disability of his lungs.
Respondents' appeal asserts that the rate should have been calculated on the basis of 1979 earnings and the law in effect at that time since the last exposure to asbestos was 1979. They cite Pich v. Pratt Whitney, 4 Conn. Workers' Comp. Rev. Op. 163, 354 CRD-6-84 (1988) and Delos v. United Illuminating, 751 CRD-4-88-7 (November 30, 1989). We do not agree Pich and Delos are on point with the present issues. Both Pich and its progeny Delos concerned establishing the last date of exposure in order to ascertain if the claim was barred by sec. 31-294's time limitations. In the instant case there is no question that the claim was timely filed.
Our holding in O'Leary v. New Britain, 3 Conn. Workers' Comp. Rev. Op. 108, 236 CRD-6-83 (1986) is directly on point here. O'Leary stated that a 1980 legislative amendment to Sec. 31-307 C.G.S. was applicable to both Sec. 31-294 and Sec. 31-310. We noted in O'Leary that Sec. 31-307 C.G.S. providing that total incapacity benefits shall be paid on the basis of average weekly earnings at the time of injury was amended by Public Act 80-124. That amendment provided, "In the case of occupational disease, the time of injury shall be the date of total or partial incapacity to work as a result of such disease." Later in the opinion we concluded the 1980 amendment was also applicable to Sec. 31-310 which provides "the average weekly wage shall be ascertained by dividing the total wages received by the injured worker . . . during the twenty-six calendar weeks immediately preceding that during which he was injured. . ." Finally we noted that this rationale was consistent with Rousu v. Collins Co., 114 Conn. 24 (1931) which held that the date of injury is the date of incapacity to work where the events leading to injury and the incapacity to work do not occur simultaneously. See also, Michna v. Collins Co., 116 Conn. 193 (1933).
In the present case, the trial commissioner concluded that the date of incapacity was the date on which the permanent partial disability of claimant's lungs was found. This conclusion was supported by evidence, it was not contrary to law and was not based on unreasonable or impermissible factual inferences, Fair v. People's Savings Bank, 207 Conn. 535 (1988).
We therefore affirm the Fourth District Commissioner's Finding and Award.
Having concluded that the appeal should be dismissed, pursuant to 31-301c(b), we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of this appeal for which respondent was liable after the trial commissioner's ruling in this matter.
Commissioners Robin Waller and George Waldron concur.