Opinion
CASE NO. 508 CRD-2-86
AUGUST 10, 1988
The claimant was represented by Bruno R. Morasutti, Esq. and Russell S. Palmer, Esq., Sprecher and Jezek, P.C.
The respondent was represented by Jonathan F. Reik, Esq., McGann, Bartlett Brown.
This Petition for Review from the August 21, 1986 Finding and Dismissal of the Commissioner for the Second District was heard January 22, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Rhoda Loeb and Andrew Denuzze.
FINDING AND AWARD
The Second District's August 21, 1986 Finding and Dismissal of Claim is affirmed and adopted as this Division's Finding and Dismissal.
OPINION
Claimant suffered a compensable back injury December 27, 1984 and underwent disc surgery as a result. The spinal operation left scars in the lower lumbar area. He sought benefits under Sec. 31-308(d), C.G.S. for that disfigurement. The Second District Commissioner dismissed his claim August 21, 1986 as Sec. 31-308(d) specifically excludes an award "for any scar resulting from. . .any spinal surgery". We find no error.
Sec. 31-308(d) provides: "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 of 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 disabling effect of the loss of or loss of function of the organ involved and the necessity of the organ to 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.
Claimant's argument is that the exclusion of spinal surgery scars in Sec. 31-308(d) violates the Equal Protection clause in the Fourteenth Amendment of the United States Constitution and Article First, Sections 1 and 20 of the Connecticut Constitution. Our limited jurisdiction does not extend to constitutional questions, Repasi v. Jenkins Bros., 4 Conn. Workers' Comp. Rev. Op. 82, 227 CRD-4-83 (1987). The recent Appellate Court decision Stitzer v. Rinaldi's Restaurant, 15 Conn. App. 356 (1988), aff'g, 4 Conn. Workers' Comp. Rev. Op. 104, 369 CRD-5-84 (1987), although not specifically mentioning constitutionality, did not discover any constitutional defect in the disfigurement provisions of Sec. 31-308(d). "Given the statutory language, the legislative history, and the state of medical arts in 1967, we hold that the legislature intended to eliminate scarring for scars resulting directly from an incision on the back in the course of spinal surgery. . . .", Stitzer, supra, at 362.
On a procedural matter, Respondent has made a Motion to Dismiss alleging the appeal was not filed within 10 days after the Finding and Award. Here the tenth day fell on a Sunday and the next day was a legal holiday. Claimant's filing on the next business day after the legal holiday was timely, Alderman Bros. Co. v. Westinghouse Air Brake Co., 91 Conn. 383 (1917) (per curiam). We, therefore, deny Respondent's Motion to Dismiss.
The Second District decision is affirmed and the appeal is dismissed.
Commissioners Rhoda Loeb and Andrew Denuzze concur.