Opinion
CASE NO. 575 CRD-3-87
JANUARY 26, 1989
The claimant was represented by Robert F. Carter, Esq., Carter, Rubenstein Civitello.
The respondent was represented by Thomas J. Flanagan, Esq., Wiggin Dana.
This Petition for Review from the March 4, 1987 Finding and Award and the October 23, 1987 Amended Finding and Award of the Commissioner for the Third District was heard June 24, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Paul Berte and Robin Waller.
OPINION
Claimant worked for the respondent-employer from 1942-1969. During the course of that employment he was exposed to coal dust. The Third District Commissioner originally awarded claimant "ten per cent respiratory impairment, or a five per cent impairment of each lung as of May 15, 1986." Thereafter, in an Amended Finding and Award, October 23, 1987, she awarded "ten per cent permanent partial disability of the respiratory system" and ordered the respondent to pay the claimant 35 weeks of compensation.
Claimant's appeal seeks an award instead for 10% permanent partial disability of the whole person based on the AMA Guidelines, equivalent to 20% of the respiratory system. Respondent's cross-appeal contends (1) the claim was untimely filed, (2) the law in existence during most of claimant's employment did not permit permanent partial awards for respiratory disability, (3) since there was no loss of earnings, an award for permanent partial disability is barred under Sec. 31-295, C.G.S., (4) the award was contrary to the medical evidence, and (5) the Commissioner failed to take into account the age and sex of the claimant as provided in Sec. 31-308 (d), C.G.S.
"Guides to the Evaluation of Permanent Impairment", American Medical Association, Third Ed. 1988.
We first consider claimant's appeal. He would have the Commissioner apply the AMA Guidelines in order to reach an award of 78 weeks rather than 35 weeks. Losses to organs or organ systems not scheduled in Sec. 31-308 (b), C.G.S. are controlled by Sec. 31-308 (d) which provides in pertinent part:
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 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 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.
Actual practice and custom within the Commission has assigned various values in terms of weeks of payments for unscheduled organ losses. In the instant case, a lung was assigned 175 weeks value, Balkus v. Terry Steam Turbine Co., 167 Conn. 170 (1974). Our establishment of various values for unscheduled losses is permissible under Sec. 31-308 (d).
As to the whole person disability ratings used by the AMA publication, this tribunal held in Repasi v. Jenkins Bros., 4 Conn. Workers' Comp. Rev. Op. 82, 227 CRD-4-83 (1987) our "Workers' Compensation Act does not provide for an award of benefits on the basis of whole-man rating", Id. at 85. However, the consideration of such ratings in reaching a decision as to the percentage loss of or loss of use of function is permitted under the broad discretionary powers granted to a commissioner in making such assessments. See Id. at 85. We find the award for a 10% impairment of the respiratory system in the present matter was well within the Commissioner's discretion.
Now we consider the issues raised by the employer's appeal. The first point is a statute of limitations defense. Sec. 31-294, C.G.S. as amended in 1980 permits occupational disease claims where notice of claim is given, "within three years from the first manifestation of a symptom of the occupational disease" Cortes v. Allegheny Ludlum Steel Corp., 1 Conn. Workers' Comp. Rev. Op. 173, 177 (1982) relying on Bremner v. Eidlitz Sons, Inc., 118 Conn. 666 (1934) held, "Knowledge of a physician not communicated to claimant is not a known manifestation of symptom. The statute is to start running only when a claimant or his representative knew or should have known that the worker was experiencing a symptom related to an occupational disease" (emphasis added). The determination of when the claimant knew or should have known that he was experiencing a symptom related to an occupational disease is a factual one for the trial Commissioner to make. Our appellate review of such factual determinations is very limited, Fair v. People's Savings Bank, 207 Conn. 535 (1988). "The conclusions drawn . . . from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.", Fair. supra, at 539. Further, the respondent has not filed any Motion to Correct. The Commissioner here found the first known manifestation of symptoms was in February, 1984. Whether or not we would have found differently is irrelevant. Her conclusion is not erroneous as a matter of law.
Respondent next argues that no award may enter because the condition for which compensation is sought pre-dated the 1967 amendment which incorporated Sec. 31-308 (d) permitting awards for unscheduled body parts. It argues further that there were no 1984 wages upon which an award could be based. O'Leary v. New Britain, 3 Conn. Workers' Comp. Rev. Op. 108, 236 CRD-6-83 (1986) held:
"The appropriate award should be based on the average weekly wage of the claimant at the time of the injury. Here there is no on[e] specific date when the claimant was injured. Claimant's injury was due to exposure over period of time. The appropriate calculation of the average weekly wage relates to the time of the manifestation of the injury." (citations omitted).
Id. at 110-11.
In this case, that "manifestation of injury" is the date the trial Commissioner concluded was the "first manifestation of symptom", i.e. February, 1984. The parties stipulated the compensation rate which would be applicable to a 1984 manifestation of occupational disease.
Section 31-295 (a), C.G.S. states, "No compensation shall be payable for total or partial incapacity under the provisions of this chapter on account of any injury which does not incapacitate the injured employee for a period of more than three days from earning full wages at his customary employment". Respondent argues that this employee was never incapacitated from earning full wages and therefore no compensation is payable. We do not agree that the noun "incapacity" and the verb "incapacitate" in the statute are to be defined so narrowly. If this argument were to prevail, then an employee whose hand was severed and who returned to work in three days after excellent medical treatment would not be entitled to benefits. As was noted in Dombrozzi v. Gross Co., Inc., 112 Conn. 627, 628-29 (1931):
"Our Compensation Act provides compensation for both total and partial incapacity resulting from injuries which do not prove total. It also provides specific indemnities for injuries resulting in the loss of certain members of the body, irrespective of whether they cause actual incapacity, total or partial. The theory of those provisions awarding compensation for total or partial incapacity is that the compensation is dependent upon the loss or impairment of earning power . . ." (citation omitted).
The theory of specific indemnity awards, as pointed out by Professor John Burton of Cornell, is that an employee will in the future over the rest of his working life be "incapacitated" in part and that such partial "incapacity" will cause that worker to have diminished future earnings as a result. The specific indemnity award is by way of proxy for such future loss. Such loss is compensated by a specific present award, a payment "ante" the estimated future diminution in income. This is in contradistinction to temporary total disability benefits, Professor Burton explains, which are awarded "post" actual wage loss.
Burton, John F., Jr. "Compensation for Permanent Partial Disabilities." In Safety and the Work Force, ed. John D. Worrall, 18-60. Ithaca, N.Y.: ILR Press, 1983. Berkowitz, Monroe and John F. Burton, Jr. Permanent Disability Benefits in Workers' Compensation. Kalamazoo, Mich.: W.E. Upjohn Institute for Employment Research, 1987.
As there clearly existed medical evidence to support the Commissioner's finding, we need not dwell at any length on respondent's fourth item of appeal.
Similarly with respect to the fifth argument, respondent has not shown that the Commissioner failed to take account of claimant's age and sex or that the practice of the Commissioner in assigning a value to the lungs did not include age and sex considerations. We do not find any abuse of discretion on that score.
We therefore, affirm the Finding and Award and Amended Finding and Award of the trial Commissioner.
Commissioners A. Paul Berte and Robin Waller concur.