Opinion
CASE NO. 78-CRD-2-81
JANUARY 4, 1982
The appellant-claimant was represented by Howard A. Baran, Esq.
The respondent-appellant was represented by Robert G. Girard, Esq., Assistant Attorney General.
This Petition for Review from the July 24, 1981 Finding and Award of the Commissioner for the Second District was argued December 1, 1981 before a Compensation Review Division panel consisting of Commissioners John Arcudi, A. Paul Berte' and Gerald Kolinsky.
FINDING AND AWARD
The Finding and Award of the Commissioner is affirmed and adopted as the Finding and Award of the Compensation Review Division.
OPINION
Originally in the instant matter there were appeals by both the claimant and the respondent. However, the respondent, State of Connecticut has since abandoned its appeal, so that the only remaining petition to review is that of the claimant appellant, Thomas Smith, Jr. The claimant, an employee of the State of Connecticut while operating an employer owned vehicle on a trip from his director's home in Brooklyn to his own residence in Franklin became involved in a serious motor vehicle collision the evening of August 23, 1979. As a result, claimant suffered serious injuries which have rendered him a paraplegic. As this occasioned the loss of use of both legs, the claimant by statutory definition, Sec. 31-307 C.G.S., is totally disabled. The Second District Commissioner ordered total disability payments at $104.09 per week together with cost of living adjustments.
However, the claimant appellant argues that despite the order for total 31-307 payments, the Commissioner should also have ordered payments under 31-308(d) for loss of claimant's spleen and reproductive function, and/or severe damage to claimant's nervous system, muscular system, excretory system, circulatory system, respiratory system and for permanent significant disfigurement. He reasons that the introductory phrase to 31-308(d), "In addition to compensation for total or partial incapacity or for a specific loss or use of the function of a member of the body" has a concurrent rather than a consecutive significance. This same introductory phrase is used in the second part of 31-308(d) where the Commissioner is given power to award compensation for loss or loss of use of organs or parts of the body not listed in Sec. 31-308(b). Again, the appellant argues that the second use of the phrase "In addition" has a concurrent rather than consecutive connotation.
"Sec. 31-308 Compensation for Partial Incapacity (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 of loss of use of the function of a member of the body or for disfigurement or loss or loss of use of the function of any organ or part of the body not otherwise provided for herein, taking into account the age and sex of the claimant, 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 making this argument claimant cites the language in Sec. 31-308(b) "in lieu of all other payments for compensation" and attaches meaning to the absence of such language in 31-308(d). Similarly he cites the prepositional phrase included in Sec. 31-308a "After such payments provided by said section 31-308 have been paid" and attaches similar significance to its absence from 31-308(d).
"(b) With respect to the following-described injuries the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be 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 set forth in section 31-309, or less than twenty dollars weekly: . . ."
"Sec. 31-308a Additional benefits for partial permanent disability. In addition to the compensation benefits provided by section 31-308, for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308, have been paid for the period set forth in said section,. . .
In addition to this argument deriving from statutory analysis appellant also argues that Justice Wheeler's 1918 pronouncement, "Our Act does not permit double compensation, and hence the trial court was correct in making these awards consecutive, the award for the total incapacity to precede in payment that for the partial incapacity." Olmstead v. Lamphier, 93 Conn. 20, 23 has been rendered obsolete by statutory changes since 1918, and that even in 1918 it was only obiter dicta.
Olmstead v. Lamphier is indeed a venerable precedent, a legal bulwark crafted by that most knowledgeable of the early judicial commentators on Connecticut compensation law, George W. Wheeler. Appellant's argument against it, necessarily involving overtones of lese majeste, merits some consideration. Olmstead was one of a trilogy of cases decided by Justice Wheeler the same day July 23, 1918. The others were Franko v. Schollhorn Co., 93 Conn. 13 and Kramer v. Sargent Co., 93 Conn. 26. Franko held that if an employee suffered an injury to the finger causing total incapacity, and if subsequently during the course of the medical treatment for the injury. the finger had to be amputated, the employee was entitled first to receive temporary total disability payments and then specific indemnity for the loss of the member.
Olmstead's holdings were that the employer was responsible for the cost of an artificial leg as part of surgical treatment and that if one accident caused separate injuries to the foot and the shoulder, the employee could receive an award for the loss of the foot and also payments for the partial incapacity resulting from the shoulder injury. However, the shoulder partial incapacity payments were to commence after the payments for the foot ended.
In the Kramer case the accidental happening of December 4, 1917 resulted in the loss by amputation of the terminal phalanx of the left index finger. The commissioner approved a voluntary agreement for the specific indemnity occasioned by the loss of the phalanx. The commissioner also made an award for the total incapacity resulting from the injury. Justice Wheeler distinguished this situation from Franko and Olmstead. He ruled that since the specific loss preceded the period of total incapacity, all that the employee could receive under the statute as it then existed was the specific award. In the other cases the amputation was not simultaneous with the accidental event. There was a period of total incapacity after the event during which medical treatment attempted to repair the damage to the affected member as much as was possible. The amputation came after such medical efforts proved futile.
Costello v. Seamless Rubber Co., 99 Conn. 545 (1923) decided after 1919 Amendments held that those statutory changes had in effect reversed the Kramer holding, and thereafter it made no difference whether the amputation preceded or came after the period of total incapacity. Dombrozzi v. Gross Co., Inc., 112 Conn. 627 (1931) further clarified the effect of the 1919 amendments by pointing out that prior to 1919 the statute, Sec. 5352 of the Revision of 1918, then read, "In case of the following injuries the compensation, in lieu of all other payments, . . ." The 1919 Amendment, Public Acts, 1919, Chap. 142, Sec. 7, changed the language to read: "In the case of the following injuries the compensation, in addition to the usual compensation for total incapacity, but in lieu of all other payments, . . ."
In Panico v. Sperry Engineering Co., 113 Conn. 707 (1931) the Court reviewed the cases where the payment of both total incapacity and specific indemnity was the issue. The case involved an injury to an arm September 28, 1920. Then in effect was a 520 weeks limitation on the duration of total incapacity payments. There was also in effect a 520 weeks limitation on partial incapacity payments. The provision for specific indemnity for loss of a member was included in the same statute as the partial incapacity proviso. Panico had received 518 weeks of total incapacity payments and wanted in addition a specific award for the loss of use of the arm. The Court held that the 520 weeks limitation pertained and that the two payments together could not exceed that total.
Throughout the cases we have here listed, the language of the opinions made clear that the court contemplated total incapacity payments during the healing period and specific indemnity payments when maximum improvement had been reached and total incapacity was ended. Great stress is placed on the distinction between incapacity to work and the handicap resulting from the loss or loss of use of a member; such handicap payments are sequential to the incapacity payments.
Bahre v. Hogbloom, 162 Conn. 549 (1972) treats of the same statute after disfigurement awards were authorized by Section 1328e of the 1939 Cumulative Supplement. Bahre suffered a compensable back injury December 17, 1954 and received temporary total and partial incapacity payments until January 26, 1970. The predecessor to the present 31-307, Sec. 2287c of the 1953 Cumulative Supplement governed the payment of temporary total for Bahre's 1954 accident. Sec. 2288c of the 1953 Cumulative Supplement was the predecessor of the present Sec. 31-308. Sec. 2288c included the language, "Such combined compensation for total incapacity, partial incapacity or specific loss of a member or of the use thereof and disfigurement shall in no case be more than the sum equivalent to compensation for seven hundred and eighty weeks." The legislature in 1953 had eliminated any limitation on total disability payments in 2287c. The respondents attempted to stop payments after 780 weeks, but the court ruled that as there was no limitation on total payments, the number of weeks of total paid could not be counted toward the 780 weeks limit. The Bahre result was codified into the statute when the 1961 legislative sessions deleted the reference to total in 2288c.
Bahre and Finoia v. Winchester Repeating Arms Co., 130 Conn. 381 (1943) which preceded it in interpreting the 1939 amendment providing for disfigurement awards both had occasion to consider the "In addition" language now contained in 31-308(d), the same language on which appellant relies in the instant case. The opinion in Bahre has the following sentence. "The defendants, however, claim that Sec. 2288c refers to a combination of consecutive payments for total and partial disability." (underlining ours) Bahre v. Hogbloom 162 Conn. 549, 555. Later in the opinion appears this language, "Since the claimant has no disfigurement, and has been found to be totally disabled, Sec. 2288c is not applicable," idem at 557.
"Sec. 2288c (Cum. Sup. 1953). Compensation for Partial Incapacity. If any injury for which compensation is provided under the provisions of this chapter shall result in partial incapacity, there shall be paid to the injured employee a weekly compensation equal to sixty per cent of the difference between his average weekly earnings before the injury and the amount he is able to earn thereafter. Such compensation shall in no case be more than forty dollars weekly and shall continue during the period of partial incapacity, but no longer than seven hundred and eighty weeks. If the employer shall procure for an injured employee employment suitable to his capacity, the wages offered in such employment shall be taken as the earning capacity of the injured employee. With respect to the following described injuries the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be sixty per cent of the average weekly earnings of the injured employee, but in no case more than forty dollars or less than twelve dollars weekly. . . . 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 per cent of the average weekly earnings of the injured employee, but in no case more than forty dollars or less than twelve dollars weekly, for any serious and permanent disfigurement of the face, neck, head, forearms or hands up to one hundred and four 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 subsections (a) to (1), inclusive. Such combined compensation for total incapacity, partial incapacity or specific loss of a member or or the use thereof and disfigurement shall in no case be more than the sum equivalent to compensation for seven hundred and eighty weeks."
[Dombrowski v. Fafnir Bearing Co]., 148 Conn. 87 (1961) is another decision interpreting the disfigurement section of the statute. There, the court said at page 88, "[After]fn__ providing for compensation for partial incapacity and for the loss, or loss of use of certain enumerated members of the body, the statute authorizes compensation for disfigurement. . ." The word "[after]"fn__ used by Justice King in that sentence did not appear in the statute. It was judicially inserted in an opinion written some forty three years after [Olmstead],fn__ twenty-two years after the legislature first included disfigurement awards, and eight years after the elimination of any limitation on the duration of total incapacity awards.
Appellant's other principal claim relies on the 1967 amendment now included in 31-308(d). It refers to the payments for unscheduled specific losses or handicaps to organs or other unlisted parts of the body. In that regard, too, as we noted earlier, the statute uses the language "In addition to" but does not use the words "after" and in "lieu of other" payments employed in 31-308(b) and 31-308a. The only Supreme Court case we have found which considers this amendment is Balkus v. Terry Steam Turbine Co. 167 Conn. 170 (1974). In it liability and extent of disability were contested. So of necessity when the litigation was over, enough time had elapsed so that both temporary total and unscheduled specific payments were due. Thus the time sequence for payments was never directly in issue. However, fourteen years have passed since that legislation was enacted, and the entire Workers' Compensation Commission has considered the "In addition" clause which precedes the grant of authority for such awards to have the same effect as the parallel clause in the 1939 legislation authorizing disfigurement awards. No appeal has been taken from the many awards which reflect the Commission's interpretation in this respect.
Our review has touched upon each major modification of Sec. 31-308 and its predecessors and the court's treatment of these changes from 1913 to the present day. The "In addition" formula was first used in 1919. It was used again when disfigurement awards appeared in the law in 1939, and finally it was used in 1967 when the unscheduled specific awards were authorized. As the decisions cited have noted, the "in lieu of" language of 31-308(b) was there from the very beginning before the Olmstead decision. As is obvious, the courts have considered the "In addition" language preceding the disfigurement awards section analogous to the 1919 use of those words preceding the specific indemnity section. Hence, the decisions have interpreted disfigurement awards as consecutive to total. Although there is no case directly in point, the same reasoning must needs apply to the unscheduled specific 1967 amendment.
It is important to note that the partial incapacity, the scheduled specific indemnity, the disfigurement and the unscheduled specific sections of the law have always appeared together in one statute, Sec. 31-308 and all its predecessors. Only in 1979 did the legislature divide the statute into (a), (b), (c) and (d). Nonetheless, the revisors kept the caption "partial incapacity" for the whole statute. This evinces a legislative intent to treat these four types of compensation benefits as partial incapacity benefit distinct from the total incapacity benefits provided in 31-307 and its predecessors. Obviously, this was one of the principal bases for the Olmstead opinion that partial incapacity payments are sequential to total payments as it is not logically possible simultaneously to be both totally and partially incapacitated.
The fourth major legislative change which figures in appellant's argument is the 1953 elimination of any limitation on total incapacity payment. The sentences cited from Dombrowski (1961) and Bahre (1972) clearly ref. that argument.
This history shows that the courts have continued to rely on Wheeler's 1918 injunction against double compensation after each change Sec. 31-308. The legislature has been aware of these court interpreting for the four decades that disfigurement awards have been permitted. It has enacted the changes we have noted and many others in 31-308, the most recent, in 1979. Yet despite the many opportunities thus presented, the legislature has made no move to make these awards concurrent with rather consecutive to total. We can only conclude that the General Assembly as with the judiciary that all 31-308 benefits are payable "after" total incapacity and "in lieu" of other compensation.
Our analysis of legislative history and case law probably make unnecessary, but appellant's argument fails on another point. The disfigurement section of 31-308 provides that the weekly payment in no case shall exceed the maximum weekly benefit rate established by 31-309. By itself proviso would prohibit the payment of the double compensation for which claimant is arguing. In oral argument appellant's counsel suggested that limit to the maximum rate would still permit claimants with low average earnings to receive more than their own weekly compensation rate in any week. There seems absolutely no basis in legislative history or case law for such a suggestion.