Opinion
CASE NO. 482 CRD-7-86
JUNE 21, 1988
The claimant was represented by Reuben S. Midle, Esq., Tierney, Zullo, Flaherty Murphy, P.C.
The respondent was represented by George Waldron, Esq., Murphy Beane.
This Petition for Review from the May 5, 1986 Finding and Award of the Commissioner for the Seventh District was heard June 26, 1987 before Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Andrew Denuzze.
FINDING AND AWARD
The Seventh District Finding and Award of May 5, 1986 is hereby affirmed and adopted as the Finding and Award of this Division.
OPINION
Claimant, a Norwalk police officer, suffered multiple injuries in a motor vehicle accident September 11, 1977, including traumatic transversal myelopathy at the C-5, C-6 level and cervical radiulopathy and spinal cord contusion. Compensability of the injury was uncontested by the employer-municipality. The accident rendered him temporarily quadriplegic. He returned to light duty police work in the Fall of 1978. But further surgery was necessary in January, 1982 due to encroachment of nerve roots on the spinal cord. He received temporary total disability benefits until April 2, 1982.
From April 2, 1982 and until August 22, 1984 Claimant pursued a full-time course of study and earned a degree in Security Management from the University of New Haven as part a Division of Workers' Rehabilitation (DWR) program under Sec. 31-283a and Sec. 31-283b, C.G.S. While attending college, he received a DWR stipend. Between August, 1984 and July 22, 1985, he was employed by ADT Security Systems. Since July, 1985 the parties have stipulated he has been totally disabled.
The commissioner's May 5, 1986 Finding and Award concluded the claimant was totally disabled during the time of the DWR occupational rehabilitation program at the University of New Haven. Further, the Finding held Claimant had sustained a 60% permanent partial loss of use of the cervical spine entitling him to 105 weeks of specific indemnity benefits. The maximum medical improvement date was found to be April 8, 1982.
Respondents have paid some 42 weeks of permanent partial specific indemnity benefits for which they seek an appropriate setoff against any indemnity due, but their principal quarrel is with the commissioner's conclusion that Claimant was entitled to temporary total disability Sec. 31-307, C.G.S. benefits during the same weeks he was receiving the DWR stipend while attending college. Appellants' contention on both points is based in part on Sec. 31-295(c), C.G.S. They argue that that statute obligates employers to pay permanent partial specific indemnity benefits not later than thirty days "after maximum improvement". However, that provision of the law is only operative "If an employee is entitled to receive compensation for permanent disability. . . .". Here, the commissioner determined he was to receive temporary total disability during the college attendance period.
Sec. 31-295. Waiting period. When compensation begins. (c) If the employee is entitled to receive compensation for permanent disability to an injured member in accordance with the provisions of section 31-308, such compensation shall be paid to him beginning not later than thirty days following the date of the maximum improvement of such member or members and if such compensation payments are not so paid, the employer shall, in addition to the compensation benefit rate, pay interest at the rate of six per cent per annum on such sum or sums from such date of maximum improvement. The employer shall ascertain at least monthly whether employees are entitled to benefits because of a loss of wages as a result of such injuries and, if there is a loss of wages, shall pay such benefits. The commissioners shall adopt regulations for the purpose of assuring prompt payment by the employer or his insurance carrier.
Their appeal further contends Claimant voluntarily removed himself from the labor market by attending the DWR college program and that this was the reason for his unemployment rather than the total disability from the injury found by the commissioner. Sec. 31-307, C.G.S. provides that total disability benefits are to be paid when an injury results in a employee's "total incapacity to work". Case law has defined that statutory phrase determining that it "mean[s] the inability of the employee, because of his injuries, to work at his customary calling or at any other occupation which he might reasonably follow", Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 456 (1951) (citations omitted). Such determination therefore is a factual matter for the trial Commissioner to decide. A total incapacity to work may continue to exist even after a claimant has reached maximum medical improvement, Osterlund v. State of Connecticut, 129 Conn. 591 (1943). An award to continue benefits for total incapacity at that point is a matter within the commissioner's discretion Osterlund, supra; La Boda v. Watertown, 1 Conn. Workers' Comp. Rev. Op. 63, 51 CRD-5-81 (1981); Masse v. Becton Dickinson Co. 1 Conn. Workers' Comp. Rev. Op. 83, 83 CRD-5-81 (1981). Here, the claimant's removal from the labor market was not voluntary. It was forced due to the severity of the injury and its sequelae. His school attendance was itself due to the 60% permanent partial loss of the cervical spine's function, and constituted an attempt to re-enter that labor market with employable skills. The commissioner therefore had sufficient evidentiary basis to find Claimant was incapable of working "at his customary calling or at any other occupation which he might reasonably follow", Czeplicki, supra; Fortin v. State of Connecticut, 2 Conn. Workers' Comp. Rev. Op. 116, 138 CRD-6-82 (1985).
Sec. 31-307. Compensation for total incapacity. If any injury for which compensation is provided under the provision of this chapter results in total incapacity to work, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of the injury; but the compensation shall in no case be more than the maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred, except that any employee who suffers any injury or illness caused by his employer's violation of any health or safety regulation adopted pursuant to chapter 571 or adopted the Federal Occupational Safety and Health Administration and listed in 29 C.F.R., chapter XVII, after such violation has been cited in accordance with the provisions of section 31-275 or the provisions of the Occupational Safety and Health Act of 1970, 84 Stat. 1601 (1970), 29 U.S.C. § 658 and not abated within the time fixed by the citation provided such citation has not been set aside by appeal to the appropriate agency or court having jurisdiction, shall receive a weekly compensation equal to seventy-five per cent of such employee's average weekly earnings at the time of such injury or illness. 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. No employee entitled to compensation under this section shall receive less than twenty per cent of the maximum weekly compensation rate, as provided in section 31-309, provided such minimum payment shall not exceed eighty per cent of the employee's average weekly wage, as determined under section 31-310; and such compensation shall not continue longer than the period of total incapacity.
Having ruled that under Sec. 31-307 it was within the commissioner's discretion to award total benefits, we must next determine whether Claimant could also receive the DWR stipend for the same period. Respondents object that this constitutes a double recovery, but a subsistence stipend is a benefit separate and apart from weekly compensation benefits referred to in Sec. 31-307 and Sec. 31-309, C.G.S. Subsistence stipends are administered through the Division of Workers' Rehabilitation and are not available to every claimant. The subsistence stipend's purpose is not compensation but rehabilitation, and funding for DWR stipends is from a source other than that for other chapter 568 benefits. See Sec. 31-283b, C.G.S. The Division of Workers' Rehabilitation determines whether to award a subsistence stipend. If a stipend has been paid, and if the period of its payment coincides with a period for which the District Commissioner has awarded temporary total benefits, it is the Division which must determine whether to order repayment of such stipend by the claimant to the D.W.R. fund.
With respect to the 42 weeks of specific indemnity permanent partial disability benefits for the 60% loss of use of the cervical spine paid by the respondents, they are entitled to a credit. During the period that Claimant was employed, August, 1984 to July 22, 1985, some 50 weeks, Claimant was entitled to receive permanent partial disability benefits. The 42 weeks paid may be offset against that number of weeks. Once Claimant became totally disabled again on the latter date, no more specific was due as he was receiving total disability benefits, Smith v. State of Connecticut, 1 Conn. Workers' Comp. Rev. Op. 95, 78 CRD-2-81 (1982), rev'd on procedural grounds in 38 Conn. Sup. 648 (1983) and the cases there cited.
Finally, Respondents wish to receive a credit and offset against the $3,000,000 recovery by Claimant in a third party lawsuit. As the trial Commissioner made no finding on that point, we do not have a reviewable issue, Smith v. State of Connecticut, supra. Any disposition of that claim under Sec. 31-293 needs to be resolved below.
The appeal is dismissed and the Seventh District's Finding and Award is affirmed.
Commissioners Robin Waller and Andrew Denuzze concur.