13 BRBS 647

13 BRBS 647

Opinion

Opinion

KALARIS, Administrative Appeals Judge:

This is an appeal by the claimant from the Decision and Order and Supplemental Decision and Order (78-LHCA-582-S) of Administrative Law Judge John D. Henson pursuant to the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. § 901 et seq. (hereinafter, the Act). This appeal involves Section 10 of the Act which requires that an injured employee’s compensation for disability and death be based on the employee’s average weekly wage “at the time of injury.” 33 U.S.C. § 910. 1. The question of primary importance before us is when does the “time of injury” occur in cases of occupational disease. We hold that, for purposes of Section 10, “time of injury” is the date on which the employee is last exposed to the injurious stimuli which causes his disease.

The claimant in this case is the widow of Arthur J. Dunn, and brought this claim for disability on behalf of her husband and for death benefits. Arthur J. Dunn was exposed to asbestos fibers between 1942 and 1944 or 1945 while working for Todd Shipyards Corporation (hereinafter, the employer) as a steam [650] fitter and pipe fitter. He thereafter worked for three different wholesale plumbing supply companies until 1966 or 1967, when he ceased work for a year. He then performed odd jobs for the local Catholic parish. None of Mr. Dunn’s employment subsequent to 1944 or 1945 involved exposure to asbestos fibers. In August of 1975, Mr. Dunn became bedridden and, after admission to the hospital on September 15, 1975, died on January 27, 1976. An autopsy performed the following day showed that the cause of death was lung cancer, pulmonary asbestosis, and chronic obstructive pulmonary disease.

In a Decision and Order dated August 3, 1978, the administrative law judge concluded that Mr. Dunn’s death was the result of an occupational disease causally related to his exposure to asbestos fibers between 1942 and 1944. He awarded death benefits and compensation for permanent total disability from September 15, 1975, to January 26, 1976. In calculating the decedent’s average weekly wage, the administrative law judge applied the Board’s decisions in Stark v. Bethlehem Steel Corp., 6 BRBS 600 (1977), reaff’d on reconsideration, 10 BRBS 350 (1979) (hereinafter referred to as Stark I and Stark II) which held that the average weekly wage in occupational disease cases is to be computed as of the date the disease becomes manifest. The administrative law judge found that decedent’s condition became manifest on September 15, 1975, and that his average weekly wage at that time was $35.¹

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