Opinion
CASE NO. 766 CRD-7-88-9
FEBRUARY 26, 1990
The claimant was represented by Gerald Stevens, Esq., Stevens, Moran, Carroll Carveth.
The respondent was represented at the trial level by George Waldron, Esq.; and John Greiner, Esq., the appellate level both of Murphy Beane.
This Petition for Review from the August 26, 1988 Finding and Order of the Commissioner for the Seventh District was heard October 27, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Andrew P. Denuzze.
OPINION
Respondent seeks review of the Seventh District August 26, 1988 Finding and Order. Its appeal questions whether the dependent surviving widow may simultaneously receive the balance of payments due on the decedent's Sec. 31-308(d) permanent partial impairment award and Sec. 31-306 survivor's benefits.
Claimant's decedent was a uniformed member of the respondent-municipality's fire department. On May 15, 1985 the Seventh District Commissioner awarded decedent Sec. 7-433c benefits finding him disabled due to heart disease. Decedent died of that disease January 11, 1987. The August 26, 1988 Order ruled that the dependent spouse receive Sec. 31-306 and Sec. 31-308(d) benefits concurrently.
Citing Morgan v. East Haven, 208 Conn. 576 (1988) as authority the town contends concurrent payments are incorrect. While we agree that the commissioner erred, we differ as to the legal reasoning underlying our conclusion.
To support the decision below claimant cites Scalora v. 39 Conn. Sup. 449 (1983). Scalora permitted concurrent Sec. 31-308(d) disfigurement benefits and Sec. 31-307 total incapacity benefits. The Appellate Session of the Superior Court overruled this Division's denial of concurrent payment and noted that Olmstead v. Lamphier, 93 Conn. 20 (1918) did hold that payments for total incapacity payments and for partial incapacity were mutually exclusive. "[O]ne cannot be at once totally and partially incapacitated." Scalora, at 152. But Scalora distinguished Olmstead, "[O]ne can be simultaneously incapacitated and disfigured." Id., 452.
The Scalora decision depended on the statute Sec. 31-308(d). It held that with respect to disfigurement benefits, the statutory phrase "In addition to compensation for total or partial incapacity or for a specific loss. . ." meant "over and above" total and partial and specific benefits, not "after" or "following." But that court also held with respect to Sec. 31-307 total incapacity and Sec. 31-308 partial incapacity benefits. "There is no dispute that such payments are mutually exclusive — one cannot be at once totally and partially incapacitated." Id., 453. There were no disfigurement benefits in the Act when Olmstead was decided, and Scalora only distinguished the sequential payment scheme of Olmstead with respect to disfigurement benefits not with respect to the contemporaneous payment of total and partial incapacity payments. See Smith v. State, 3 Conn. Workers' Comp. Rev. Op. 69, 78 CRD-2-81 (1986).
Section 31-308(d) provides: (d) In addition to compensation for total or partial incapacity or for a specific loss of a member or use of the function of a member of the body, the commissioner may award such compensation as he deems just, equal to sixty-six and two-thirds per cent of the average weekly earnings of the injured employee, but in no case more than the maximum weekly benefit rate as established in section 31-309, for any permanent significant disfigurement of, or permanent significant scar on, any part of the body up to two hundred and eight weeks, but no compensation shall be awarded when such disfigurement was caused solely by the loss of or the loss of use of a member of the body for which compensation payments are provided by the terms of subsection (b) of this section or for any scar resulting from an inguinal hernia operation or any spinal surgery. In addition to compensation for total or partial incapacity for a specific loss of a member or loss of use of the function of a member of the body or for disfigurement or scarring, the commissioner may award such compensation as he deems just for the loss or loss of use of the function of any organ or part of the body not otherwise provided or herein, taking into account the age and sex of the claimant, the disabling effect of the loss of or loss of Function of the organ involved and the necessity of the organ or complete functioning of the organ with respect to the entire body, but in no case more than the sum equivalent to compensation for seven hundred and eighty weeks.
In the instant case claimant seeks contemporaneous payments of survivors' benefits and partial permanent entitlement. Survivors' payments under Sec. 31-306 to dependents are a proxy for the total Sec. 31-307 benefits that are paid to a decedent employee during his lifetime. Because that is so the Olmstead prohibition against double payments is valid. Scalora did not disturb that part of the Olmstead holding.
During an employee's lifetime even if he has been held to have reached maximum improvement and became eligible for a Sec. 31-308 specific award concerning permanent partial loss of a body part, the commissioner may still find that employee to be totally incapacitated and award Sec. 31-307 total benefits. Osterlund v. State, 135 Conn. 498, 505-506 (1949). However, when the total incapacity entitlement ceases, that employee may then receive specific benefits for the permanent partial loss.
Similarly here, if the dependent survivors' entitlement for total Sec. 31-306 benefits ceases, then the commissioner may order payment to the dependent widow of any Sec. 31-308 benefits left unpaid at decedent's death. She has not lost the right to those benefits. They simply cannot be paid during the weeks that she is receiving total Sec. 31-306 benefits.
Therefore we sustain respondent's appeal and reverse the Seventh District Order permitting concurrent payment of Sec. 31-306 dependency benefits and Sec. 31-308(d) entitlements.
Commissioners Robin Waller and Andrew P. DeNuzze concur.