LIONEL COTE, APPELLANT,
v.
COMBUSTION ENGINEERING, INC., AND TRAVELERS INSURANCE COMPANY, APPELLEES
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The court held that the average weekly wage and compensation rate for an occupational disease must be computed as of the date disability commences, not the date of last injurious exposure.
Claimant developed asbestosis, an occupational disease, which became disabling in 1985 after exposure to asbestos between 1969 and 1974. The parties d…
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WENTWORTH, Judge.
Claimant seeks review of a workers’ compensation order by which his average weekly wage and compensation rate for an occupational disease were determined as of the date of claimant’s last injurious occupational exposure to asbestos. We find that these computations should have been made as of the date that disability commenced, and we therefore reverse the order appealed.
During his employment between 1969 and 1974 claimant was regularly exposed to asbestos. Claimant eventually developed asbestosis which became disabling in 1985. Stipulating as to the corresponding average weekly wage and compensation rate amounts, the parties disagreed as to whether the pertinent time for such computations related to the date of claimant’s last injurious exposure to asbestos in 1974, or the commencement of disability in 1985.
Section 440.151(l)(a), Florida Statutes (1974), provides that “disablement ... resulting from an occupational disease ... shall be treated as the happening of an injury by accident_” Section 440.14, Florida Statutes (1974), states that “the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation_” Since section 440.-151(l)(a) establishes disablement as the injury in instances of occupational disease, the commencement of such disability is the pertinent time for the average weekly wage determination pursuant to section 440.14. In the present case claimant’s average weekly wage and compensation rate thus should have been determined upon a consideration of his 1985 earnings when he became disabled.1
The order appealed is reversed.
BOOTH, C.J., and BARFIELD, J., concur. . This position accords with that adopted in other jurisdictions under various workers’ compensation acts. See e.g., Todd Shipyards Corp. v. Black, 717 F. 2d 1280 (9th Cir.Ct.App.1983); White v. Johns-Manville Sales Corp., 416 So. 2d 327 (La. 5th Cir.Ct.App.1982).
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Michels v. Orange Cnty. Fire/Rescue & Johns E. Co., Inc., 819 So. 2d 158 (Fla. 1st DCA 2002)…hazards of the disease. See § 440.151(l)(a), Fla. Stat. (1991) and (1997) (“disablement ... resulting from an occupational disease ... shall be treated as the happening of an injury by accident .... ”); see also Cote v. Combustion Engineering, Inc., 502 So. 2d 500, 501 (Fla. 1st DCA 1987) (holding disablement from occupational disease treated as an injury by accident); Hoppe v. City of Lakeland, 691 So. 2d 585, 586 (Fla. 1st DCA 1997) (holding disability occurs when a claimant becomes actually incapacitated,…
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Hillsborough Cnty. Sch. Bd. & RSKCo v. Christopher, 790 So. 2d 1267 (Fla. 1st DCA 2001)…) in effect on July 25, 1988, when she suffered her back injury, rather than on April 20, 1995, when she became disabled because her condition had deteriorated to the point that she could no longer work. We agree. See Cote v. Combustion Eng’g, Inc., 502 So. 2d 500 (Fla. 1st DCA 1987) (the commencement of disability is the pertinent time for AWW determination); Reynolds v. Neisner Bros., Inc., 436 So. 2d 1070 (Fla. 1st DCA 1983) (JCC erroneously calculated AWW at time of 1977 accident, rather than at time of d…
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James v. Armstrong World Indus., Inc., 864 So. 2d 1132 (Fla. 1st DCA 2003)…) in effect on July 25, 1988, when she suffered her back injury, rather than on April 20, 1995, when she became disabled because her condition had deteriorated to the point that she could no longer work. We agree. See Cote v. Combustion Eng’g, Inc., 502 So. 2d 500 (Fla. 1st DCA 1987) (the commencement of disability is the pertinent time for AWW determination); Reynolds v. Neisner Bros., Inc., 436 So. 2d 1070 (Fla. 1st DCA 1983) (JCC erroneously calculated AWW at time of 1977 accident, rather than at time of d…1 / 2
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- Todd Shipyards Corp. v. Black, 717 F.2d 1280 (9th Cir. 1983)