CASE NO. 3667 CRB-02-97-08
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 17, 1998
WAUSAU INSURANCE CO.
The claimant was represented by Nathan Shafner, Esq., and Carolyn P. Kelly, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, 475 Bridge Street, P.O. Drawer 929, Groton, CT 06340.
The employer was represented by James Pomeranz, Esq., and Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.
The Second Injury Fund was represented by Yinxia Long, Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120, who did not appear at oral argument.
This Petition for Review from the August 6, 1997 Finding and Award of the Commissioner acting for the Second District was heard April 24, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr. and Michael S. Miles.
JESSE M. FRANKL, CHAIRMAN. The claimant has appealed from the August 6, 1997 Finding and Award of the Commissioner acting for the Second District. In that decision the trial commissioner concluded that the claimant sustained asbestosis which arose out of and during the course of his employment. In support of his appeal, the claimant contends that the trial commissioner erroneously computed the claimant’s benefit rate based upon an incorrect date of incapacity. The respondent employer and its insurer (hereinafter “respondents”) have also appealed from the trial commissioner’s decision, contending that the claimant’s date of injury is May 9, 1978 rather than November 27, 1979.
The trial commissioner found the following relevant facts. The claimant was employed by the respondent employer from September 1, 1950 until he retired in June of 1987. The claimant was exposed to asbestos from 1953 forward. The parties agree that there is no evidence that the claimant lost any time from work as a result of asbestosis. On May 9, 1978, the claimant underwent pulmonary function studies which revealed restrictive lung disease associated with impaired diffusion capacity. The claimant had chest x-rays on May 17, 1978 which showed “restrictive pulmonary disease by diffuse pleural scarring.” (Finding No. 6). Subsequent x-rays indicated that the possibility of asbestosis should be considered. (Finding No. 9-10).
The claimant was first seen by Dr. Buckley on December 14, 1979, at which time Dr. Buckley concluded that the claimant suffered from asbestosis. Dr. Buckley’s report dated January 31, 1980 states that “the patient was informed that he had asbestosis.” (Finding No. 12). Dr. Buckley in his January 31, 1980 report refers to pulmonary function tests which were performed November 27, 1979. The claimant filed his notice of claim on March 6, 1980. On February 9, 1987, Dr. Buckley opined that the claimant had a twenty-five to thirty percent permanent partial disability of the lungs. At the request of the respondents, an independent medical examination of the claimant was performed by Dr. Godar, who agreed with the diagnosis of asbestosis and with the assessment of a thirty percent permanent partial impairment.
The trial commissioner concluded that the claimant had a “permanent asbestosis related disability as of November 27, 1979.” (Finding No. 21). The trial commissioner thus concluded that the claimant’s date of injury was November 27, 1979. The trial commissioner further concluded that the claimant’s benefit rate for purposes of his permanent partial disability payments was $261.00 based upon his earnings in 1979.
In support of his appeal, the claimant contends that the date of the claimant’s incapacity was February 9, 1987, the date of Dr. Buckley’s report which indicated a twenty-five to thirty percent permanent partial disability. The claimant argues that the claimant did not have any incapacity until the February 9, 1987 evaluation. The respondents, on the other hand, contend that the claimant’s date of injury was May 9, 1978 because permanent partial impairment of the lungs was established by testing at that time.
The date of injury for purposes of filing a notice of claim pursuant to § 31-294c is the “first manifestation of a symptom of the occupational disease.” In the instant case, for purposes of § 31-294c, the trial commissioner found the date of injury to be November 27, 1979. (Finding No. 24). The trial commissioner found that as of November 27, 1979, there was sufficient medical evidence to establish that the claimant had a permanent asbestosis disability. (Finding No. 21). We do not agree with the respondents’ argument that an earlier date of injury should be found, because prior to November 27, 1979, the diagnosis of asbestosis had not been made. (Finding No. 32). Specifically, the trial commissioner found that on November 6, 1979 the respondent employer’s physician left the claimant with the understanding that his “essentially negative” x-ray report of 1976 had not changed. (Finding No. 22).
The next issue raised on appeal is the computation of the claimant’s weekly benefit rate. The trial commissioner based the claimant’s weekly rate for his permanent partial disability benefits on the claimant’s earnings in 1979, which produced a weekly rate of $261.00. Pursuant to § 31-308, benefits for permanent partial disability are calculated in accordance with § 31-310. Our Supreme Court has recently ruled that § 31-310c “clarifies § 31-310” and thus should “be applied retroactively.” Green v. General Dynamics Corp., 245 Conn. 66, 72, 78 (1998). Section 31-310c provides:
For the purposes of this chapter, in the case of an occupational disease the average weekly wage shall be calculated as of the date of total or partial incapacity to work. However, in the case of an occupational disease which manifests itself at a time when the worker has not worked during the twenty-six weeks immediately preceding the diagnosis of such disease, the claimant’s average weekly wage shall be considered to be equivalent to the greater of (1) the average weekly wage determined pursuant to section 31-310... or (2) the average weekly wage earned by the claimant during the fifty-two calendar weeks last worked by the claimant....
In the instant case, the first sentence of § 31-310c applies, and thus the claimant’s average weekly wage should be calculated as of the date of the claimant’s incapacity to work.1
The Appellate Court has held that where a claimant was diagnosed with an occupational disease, continued working, and was later assessed a permanent partial disability, his incapacity to work occurred on the date of the permanent partial disability assessment, i.e. the date he became eligible for benefits under § 31-308. Stevens v. Raymark Corporation/ Raybestos Manhattan, 28 Conn. App. 226, 230 (1992). Therefore, the court concluded that the claimant’s benefit rate should be based upon the wages earned immediately prior to the date of the permanent partial disability assessment.
Here, the trial commissioner found that the “date of first incapacity” occurred “when the Claimant had permanent lung damage as indicated by Dr. Buckley in his report of December 14, 1979 based upon the medical tests of November 27, 1979.” (Finding No. 33). It is not clear from the finding of fact whether an assessment of the claimant’s permanent partial disability was made effective December 14, 1979, and thus whether the claimant became eligible to receive benefits effective on that date. Thus, we must remand this matter in accordance with Stevens, supra, in which the Appellate Court held that the claimant’s “incapacity to work” occurred on the date the claimant was diagnosed with a permanent partial disability such that the claimant became eligible to receive benefits on that date. Id. at 230.
The trial commissioner awarded the claimant “benefits for thirty (30%) percent of the lungs of the maximum medical improvement date of February 9, 1997 at the rate of $261.00 weekly.” (Order No. 1). The February 9, 1997 date does not appear to be supported by the record, and may be a typographical error, as we note that Finding Number 27 states that on February 9, 1987 Dr. Buckley opined that the claimant had a twenty-five to thirty percent permanent partial disability of the lungs. Furthermore, the findings are not clear regarding the maximum benefit rate under § 31-309. In determining the maximum benefit rate, § 31-309 provides that the “time of injury shall be the date of total or partial incapacity to work as a result of such disease.” We must also remand for a determination of this date.
Accordingly, this case is remanded in order for determinations to be made as to (1) the claimant’s date of incapacity for purposes of determining his benefit rate, and (2) the time of injury for purposes of determining the claimant’s maximum benefit rate. The trial commissioner should also address the claimant’s request for interest pursuant to § 31-295(c).
This matter is remanded in accordance with the above decision.
Commissioners Donald H. Doyle, Jr. and Michael S. Miles concur.
1 The next section of § 31-310c does not apply because here the claimant was working “during the twenty-six weeks immediately preceding the diagnosis of such disease.” BACK TO TEXT