Opinion
CASE NO. 2113 CRB-2-94-7
APRIL 1, 1996
The claimant was not represented at oral argument. Notice sent to Elliot Macht, Esq., Woodhouse, Rubinow Macht.
The respondents were represented by Nancy S. Rosenbaum, Esq., Law Offices of Nancy Rosenbaum.
The Second Injury Fund was represented by Michael J. Giammatteo, Esq., Assistant Attorney General.
This Petition for Review from the July 20, 1994 Finding and Award of the Commissioner acting for the Second District was heard September 22, 1995 before a Compensation Review Board panel consisting of Commissioners George A. Waldron, Roberta Smith Tracy and Amado J. Vargas.
OPINION
The Second Injury Fund has petitioned for review from the July 20, 1994 Finding and Award of the Commissioner acting for the Second District. The Fund argues on appeal that the trial commissioner improperly included payments to the claimant for a scarring award pursuant to § 31-308(d) C.G.S. in the 104 weeks of compensation payable by the employer under § 31-349 C.G.S. We reverse the trial commissioner's decision.
The facts of this case are simple. The claimant, who had a pre-existing permanent partial impairment as a result of prior knee surgery, suffered a second injury to that knee on October 15, 1981 while working for the respondent employer. Thirty-four weeks of total incapacity and 59 1/2 weeks worth of specific indemnity benefits were paid to the claimant as a result of that injury, along with 20 weeks of benefits as compensation for scarring. The trial commissioner ruled that Tomkus v. Upjohn Co., 12 Conn. Workers' Comp. Rev. Op. 182, 1533 CRB-3-92-10 (May 2, 1994) was dispositive of the case, and that the scarring award had to be included in the 104-week disability period as defined by § 31-349. Thus, the Second Injury Fund became liable for all compensation paid after November 19, 1984. The Second Injury Fund has appealed that decision.
At the time of the compensable injury, § 31-349 provided that the claimant's employer at the time of injury "shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability." Assuming the employer/insurer meets the requirements for transfer, liability for the claim then shifts to the Second Injury Fund under the statute. The question here is whether the first 104 weeks of disability include payments made pursuant to § 31-308(d). That section provided at the time of injury:
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. . . .
Section 31-308(b) provides for permanent impairment awards for the loss of or loss of use of specific parts of the body.
The term "disability," for the purposes of § 31-349, refers to a claimant's inability to work and loss of earning capacity. Williams v. Best Cleaners, 235 Conn. 778, 785 (1996). In computing the first 104 weeks of disability under that statute, it is manifest that periods of total disability and partial disability under §§ 31-307 and 31-308(a) fall within that definition. Additionally, § 31-308(b) specific indemnity benefits are paid on account of disability, as they compensate a claimant for "the resulting handicap through life by reason of the loss, or loss of the use, of certain members of the body."Panico v. Sperry Engineering Co., 113 Conn. 707, 710 (1931). Such benefits are paid in addition to total incapacity but "in lieu of all other payments for compensation" under the Workers' Compensation Act, and are characterized similarly to partial incapacity benefits. See Paternostro v. Edward Coon Co., 217 Conn. 42, 48-49 (1991). There is no dispute that a claimant entitled to benefits under these statutes is disabled under § 31-349.
Section 31-308(d) benefits, on the other hand, are defined as additional to compensation for total or partial incapacity, including specific indemnity benefits. Our Supreme Court has noted that "an award for disfigurement may be made even though a claimant . . . is unable to prove that the disfigurement is likely to cause any loss of earnings or earning capacity."Dombrowski v. Fafnir Bearing Co., 148 Conn. 87, 90 (1961). Whereas total disability and specific indemnity benefits are not concurrently payable, see Paternostro, supra, 49, a scarring award may be paid contemporaneously with total incapacity benefits. Scalora v. Dattco, Inc., 39 Conn. Sup. 449, 451-54 (1983). "[O]ne cannot be at once totally and partially incapacitated. Conversely, one can be simultaneously incapacitated and disfigured." Id., 452. Both the language of the statute and our caselaw make it clear that disfigurement and incapacity are separate concepts under the Workers' Compensation Act. See also Dombrowski, supra, 88.
Moreover, our legislature revised § 31-308(d) [now § 31-308(c)] in 1993 to allow a scarring award for "any permanent significant disfigurement of, or permanent significant scar on, (A) the face, head or neck, or (B) on any other area of the body which handicaps the employee in obtaining or continuing to work." No compensation may be otherwise awarded for scarring or disfigurement. P.A. 93-228. The legislature recognized that separate compensation for scarring was obtainable under the current law regardless of the scar's location or impact on earning potential, so long as the scar was permanent and significant. Under the amended law, scarring that does not affect employability is no longer compensable unless it is on the face, neck or hands, even though permanency and disability from the injury causing the scar may be compensated. 1993 Conn. H. R., Vol. 36, Part 18 p. 6178-79 (remarks of Rep. Lawlor). Thus, the distinction between disfigurement and disability was reemphasized in the context of narrowing eligibility for scarring awards.
These factors persuade us that the claimant's scarring award should not have been included in the computation of his first 104 weeks of disability under § 31-349. The trial commissioner's reliance on Tomkus, supra, in his Finding and Award was misplaced. That case dealt only with the issue of when a scarring award becomes payable and who is liable for it. There is nothing in Tomkus to indicate that a scarring award is a form of disability compensation rather than separate compensation for disfigurement.
The trial commissioner's decision is reversed.
Commissioners Roberta Smith Tracy and Amado J. Vargas concur.