CASE NO. 719 CRD-7-88-3Workers’ Compensation Commission
APRIL 13, 1989
The claimant was represented by Gerald S. Spiegel, Esq.
The respondent-employer and insurer Reliance Insurance Group were represented by Kevin J. Maher, Esq., Maher Williams.
The respondent-insurer Travelers Insurance Company was represented at the trial level by William C. Brown, Esq., McGann, Bartlett Brown, but did not participate in the appeal.
The respondent-insurer Aetna Casualty Surety Company did not appear either at the trial level or on appeal.
This Petition for Review from the March 14, 1988 Supplemental Finding and Award of the Commissioner for the Seventh District was heard October 28, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Gerald Kolinsky and Darius Spain.
OPINION
JOHN ARCUDI, CHAIRMAN.
Respondents’ appeal from the Seventh District March 14, 1988 Supplemental Finding and Award[1] contends that the commissioner improperly calculated claimant’s average weekly wage. The commissioner employed claimant’s 1984 earnings rather than the 1963 wages as the basis for his calculation.
October, 1963 was the period of claimant’s last exposure to the toxic workplace elements which caused his compensable incapacity of September, 1984. Sec. 31-307, C.G.S., as amended by P.A. 80-124 in 1980, mandates that “In the case of an occupational disease, the time of injury shall be the date of total or partial incapacity to work as a result of such disease.” Sec. 31-310, C.G.S., states “the average weekly wage shall be ascertained by dividing the total wages received by the injured worker . . . during the twenty-six weeks immediately preceding that during which he was injured. . .” The then Justice Wheeler in his 1916 dissent, Miller v. American Steel
Wire Co., 90 Conn. 349, 362 (1916) set forth the concept of injury which has ever since 1919[2] become embedded in our statutes and in the case law:
“The term personal injury as found in the statute is used to indicate the object of the hurt rather than the subject of the legal injuria. It does not here designate the Act or omission which harms or damages another, but the harm or damage done to the person.” Miller v. American Steel Wire Co., supra, 367.
This is the same rationale which governed the 1931 Supreme Court in ordering that the applicable compensation rate was to be based on earnings at the time of incapacity:
“The just measure of the value of the earning power of an employee and the correlative loss incurred by him would seem to relate to his earnings at the time the loss occurs through incapacity to work, rather than his earnings at an earlier time, perhaps so remote that, through changing conditions, personal or industrial, or both, his earnings at that time no longer accurately or correctly reflect the present value of the earning power of the workman.” Rousu v. Collins Co., 114 Conn. 24, 31 (1931).
Our recent C.R.D. decisions have followed this reasoning, Piscitelli v. Connecticut Coke/Eastern Gas and Fuel Assoc., 575 CRD-3-87 (decided January 26, 1989); Pich v. Pratt Whitney, 4 Conn. Workers’ Comp. Rev. Op. 163, 354 CRD-6-84 (1988); O’Leary v. City of New Britain, 3 Conn. Workers’ Comp. Rev. Op. 108, 236 CRD-6-83 (1986). The Seventh District’s use of the 1984 earnings to calculate the average weekly wage was consistent with these authorities.
We therefore affirm the March 14, 1988 Supplemental Finding and Award.