Opinion
CASE NO. 78 CRD-2-81
SEPTEMBER 11, 1986
The claimant was represented by Howard A. Baran, Esq.
The respondent was represented by Robert G. Girard, Esq., Assistant Attorney General.
This Petition for Review from the January 11, 1984 Supplemental Finding And Award Of Compensation of the Commissioner for the Second District in accordance with the order of the Appellate Session, Superior Court in A.S. 1290, February 4, 1982 was heard March 30, 1984 by a Compensation Review Division panel consisting of Commissioners Gerald Kolinsky, John Arcudi and A. Paul Berte.
FINDING AND AWARD
The January 11, 1984 Supplemental Finding and Award of Compensation of the Second District Commissioner is affirmed and adopted as the Finding and Award of this Division.
OPINION
This case previously came before us and is reported in 1 Conn. Workers' Comp. Rev. Op. 95; the facts of the case are fully stated therein and need not be restated here, Smith v. State, supra, page 95 and 96. Suffice it to say herein that the claimant sustained very severe personal injuries which arose out of and during the course of his employment which caused him to become a paraplegic and which also left him with substantial scarring as well as a loss of certain of his organ systems including his reproductive system, spleen, nervous system, musculature, excretory system, skin, circulatory and respiratory systems.
The Commissioner below had awarded total disability payments to the claimant, however the claimant had appealed, alleging that simultaneously with benefits for total disability, he was entitled to benefits for scarring and disfigurement, pursuant to Section 31-308(d), Connecticut General Statutes, and also benefits for loss of his various organs and organ systems, pursuant to said Section 31-308(d).
This Compensation Review Division affirmed the Commissioner's decision dismissing claimant's claim, whereupon the claimant appealed to the Appellate Session of the Superior Court, which found error and remanded the case with direction to proceed in a manner consistent with its opinion, Thomas P. Smith, Jr. v. State of Connecticut, 38 Conn. Sup. 648 (1983).
The Appellate Session there indicated that the trial Commissioner had failed specifically to rule upon the issue of Section 31-308(d) benefits, and thus the Compensation Review Division's affirmation of the Commissioner's finding and award was unfounded.
Thereafter, the Commissioner in a supplemental finding and award issued January 11, 1984 found the claimant eligible for scarring, pursuant to Section 31-308(d), C.G.S., and awarded benefits for such scarring. The Commissioner also ". . . found that claimant has suffered partial loss certain organs of the body not delineated in Section 31-308(b) C.G.S., (sic) but encompassed by Section 31-308(d) C.G.S., (sic) namely 100 percent loss of use of the reproductive system and spleen and 50 percent partial loss of use of the bladder and bowel function; however [since claimant is receiving permanent total compensation benefits pursuant to Section 31-307 C.G.S., an award for benefits for the aforementioned is precluded]" and he dismissed the claim for organ loss benefits.
From the denial of benefits for organ loss, pursuant to Section 31-308(d), C.G.S., the claimant again appealed to the Compensation Review Division, and it should be here noted that the present claims are similar, in almost all respects, to the claims presented to us in the initial appeal in 1 Conn. Workers' Comp. rev. Op. 95, an opinion we now ratify and confirm, insofar as the same has not been overruled by Scalora v. Dattco, Inc., 39 Conn. Sup. 449 (1983) the latter case having been decided in the interim before the Commissioner issued his supplemental finding and award on remand.
The claimant would have us believe that Scalora, supra, is authority for support of his claim that benefits are permitted to be contemporaneous and concurrent for both total incapacity (Section 31-307) and organ loss (Section 31-308(d)). We disagree. Scalora, supra, is authority merely for the proposition that benefits for total incapacity and for scarring may be paid concurrently We [we] do not agree that the court, in Scalora, opened the floodgate to the proposition that an injured claimant in a Workers' Compensation case may receive both benefits for total and partial incapacity simultaneously. In fact, in Scalora, the court made reference to Olmstead v. Lamphier, 93 Conn. 20, 23 where it is stated, as dictum: ". . . the case involved benefits for total and partial incapacity. [There is no dispute that such payments are mutually exclusive — one cannot at once be totally and partially incapacitated"]fn__.
We are of the view and opinion that Section 31-308(d), C.G.S., does not authorize concurrent and simultaneous compensation benefits to be paid for organ temporary total disability and for organ loss permanent partial disability and accordingly we affirm the decision of the Commissioner, and dismiss the appeal of the claimant.
Commissioners John A. Arcudi and A. Paul Berte concur.