Opinion
CASE NO. 227 CRD-4-83
JUNE 11, 1987
The claimant was represented by Edward F. Kunin, Esq.
The respondents were represented by Kevin J. Maher, Esq.
This Petition For Review from the April 15, 1983 Decision of the Chairman was argued January 27, 1984 before a Compensation Review Division panel consisting of Commissioners A. Paul Berte, Robin Waller and Gerald Kolinsky.
FINDING AND AWARD
1-12. Paragraphs 1 through 12 of the Chairman's Finding and Award are affirmed and made paragraphs 1 through 12 of this Division's Finding and Award.
13-16. Paragraphs 13 through 16 of the Chairman's Finding and Award are affirmed and made paragraphs 13 through 16 of this Division's Finding and Award with the exception of references to Sec. 31-308(d) in paragraphs 13, 15 and 16, and Sec. 31-308(b) In paragraph 14, which are all corrected to read Sec. 31-308.
17-19. Paragraphs 17 through 19 of the Chairman's Finding and Award are affirmed and made paragraphs [7 through 19 of this Division's, Finding and Award.
20-21. Paragraphs 20 and 21 of the Chairman's Finding and Award are affirmed and made paragraphs 20 and 21 of this Division's Finding and Award with the exception of references to Sec. 31-308(d) in paragraph 20, and 31-308(b) in paragraph 21, which are corrected to read Sec. 31-308.
22. To the extent that the right shoulder scar described in paragraph 8 was caused solely by the loss of claimant's right arm, no disfigurement award is issued for that claim.
23. Paragraph 23 of the Chairman's Finding and Award is affirmed and made paragraph 23 of this Division's Finding and Award.
Paragraphs A through D of the Chairman's Order are affirmed and made paragraphs A through D of this Division's Award.
This matter is hereby remanded to the Chairman to make a finding on the issue whether or not the claimant is entitled to scarring and/or disfigurement relating to the loss of the scapula, chest musculature and lung capacity.
OPINION
On April 15, 1983 Chairman John Arcudi sitting in the Fourth District issued a Finding and Award from which both parties appealed. The appeal concerns an injury claimant sustained July 17, 1976 working for the respondent Jenkins Brothers. The injuries claimant received are not in dispute.
On July 17, 1976 the claimant suffered a severe injury to his right master arm which subsequently required the amputation of his entire arm and scapula. The injury is described as follows: complete forequarter amputation, with complete loss of scapula, and loss of insertion of several muscle systems. Claimant also sustained a 20% loss of use of his cervical spine. As a result of the injury, claimant sustained scarring on the right scapula area and on his left ankle. After a hearing, and by award issued December 1, 1978, the Commissioner-at-Large, acting for the Fourth District, awarded the claimant 312 weeks compensation for total loss of the right master arm, 35 weeks compensation for 20% functional loss of use of the cervical spine, 40 weeks compensation for scarring related to the amputation of claimant's right arm and surgery for removal of the right scapula, and three weeks compensation for a scar on claimant's left ankle.
There was no issue raised on appeal concerning claimant's left ankle.
The Commissioner's December 1, 1978 award was appealed to the Superior Court which by Memorandum of Decision dated June 15, 1981, remanded the case to the Commissioner for additional findings of fact. Repasi v. Jenkins Brothers, No. 17 41 (Conn.Super.Ct. June 15, 1981, Ment, J.). The Court concluded that the record below was insufficient to allow the trial court to properly review the Commissioner's Finding and Award, and determined that a remand to the Commission was appropriate. The reason for the remand was for the Commission to hold a full testimonial hearing to include a decision by the Commissioner on the issue of a specific award for the loss of the shoulder and a disfigurement award for any disfigurement resulting from the amputation of claimant's right arm and the surgery for removal of the right scapula.
Chairman Arcudi heard the claim on remand and his April 15, 1983 Finding and Award incorporated the prior December 1, 1978 Finding and Award, and the subsequent court proceeding which resulted in Judge Ment's June 15, 1981 decision. At the Hearing before the Chairman on remand, the Chairman considered a number of claims. The ones relevant to this appeal are as follows:
1. An Award under Section 31-308(d) (sic) for the Y-shaped shoulder scar to which the parties stipulated. (Paragraph 16, 4/15/83 F A)
In the Chairman's Finding and Award he refers to subsections of 31-308 e.g. Section 31-308(d). The law applicable to this case did not include Subsections to 31-308 other than the internal listing of scheduled parts of the body, i.e. (a) through (m). The Chairman's Finding and Award has been corrected accordingly.
2. 50% disability of the whole body ascribed by Dr. Glass. (Paragraphs 6, 16, 4/15/83 F A)
3. That a cost-of-living increment be added to claimant's basic compensation rate for each week of specific and disfigurement awarded to him, alleging that it is constitutionally impermissible to grant cost-of-living increments for total disability but not for partial disability. (Paragraph 17, 4/15/83 F A)
The Chairman found that in addition to the loss of the master arm, for which claimant received 312 weeks of compensation, and which the Chairman found to be equal to 40% of the 780 weeks provided in Section 31-308(d)fn2 as the maximum number of weeks a Commissioner may award for non-scheduled losses, the claimant has lost the scapula and the chest, musculature and lung function as stated in Dr. Glass' report dated February 10, 1978. Paragraph 20, 4/15/83 F A.
Dr. Glass' February 10, 1978 report is quoted in relevant part later in this opinion.
The Chairman also found that this additional loss of the body not included in the schedule of specific and impairments listed in Section 31-308(d)2 entitled claimant to a further award of 78 weeks of compensation, which the Commissioner equated to 10% of the whole body, over and above the 40% represented by the master arm. (Paragraph 21, 4/15/83 F and A)
In addition, the Chairman found that the Y-shaped shoulder scar that the claimant sustained was "caused in large part if not solely by the loss of the arm, so no disfigurement award may be issued for that claim." (Paragraph 22, 4/15/83 F and A)
Concerning the constitutional issue raised, the Chairman man found that the Legislature provided no cost-of-living increments for any Section 31-308 compensation, and it is not within the Commissioner's limited jurisdictional powers to decide the question. (Paragraph 23, 4/15/83 F A)
In their Reasons of Appeal, the respondents and claimant presented three issues to be addressed in this appeal as follows:
I. (Respondents) Whether or not the claimant is entitled to specific compensation in excess of those amounts as stated in Section 31-308, subsections (a) through (m), complete loss of the right scapula and chest musculature and lung function as found by the Commissioner.
II. (Claimant) Whether or not the Commissioner erred in failing to make an award for scarring and/or disfigurement caused by loss of the scapula?
III. (Claimant) Whether or not the Commissioner erred in not deciding the constitutional issue posed by the statutory scheme which provides cost-of-living increments for total disability but not for specific disability?
I.
The respondents contended that the Commissioner erred in improperly making an award on the basis of a whole man impairment system and that such award is not allowable under the Connecticut Workers' Compensation Act. We agree with the respondents that the Connecticut Workers' Compensation Act does not provide for an award of benefits on the basis man rating. However, the Workers' Compensation Act does provide in Section 31-308 that the Commissioner is authorized to award discretionary specific compensation up to a sum equivalent to compensation for 780 weeks for "the loss or the loss of the use of the function of any organ or part of the body not otherwise provided for (in Section 308)" giving proper weight to certain conditions stated in the Statute.
The WCA provides benefits in Section 31-308 for permanent loss or loss of use of some part or function of the body, and not for whole body impairment.
Sec. 31-308 provides in relevant pact:
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 percent 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 of this chapter, for any permanent disfigurement of, or 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 the use of a member of the body which compensation payments are provided by the terms of subsections (a) to (m), inclusive, 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 or the loss of the 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 effects of the loss of or loss of function of the organ involved and 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.
The Commissioner's authority to award discretionary specific compensation was added to the Workers' Compensation Act by an amendment to Section 31-308, effective October 1, 1967 (1967 P.A. 842, Section 15). When the legislature discussed the proposed legislation in the House of Representatives, they considered the broad discretionary authority a Commissioner would have under the amendment.
Representative Paul Pawlak of the 95th District speaking for the Labor Committee discussed the amendments in the House as follows:
"Lastly, this section provides compensation for the first time for loss of organs of the body or the loss of function in such organs. At the present time if a worker lost a kidney because of an on the job injury, he receives no compensation for such permanent loss, yet the removal of a kidney reduces his chance for survival by 50%. We recognize that each organ of the body is not equally important to the human body and for this reason we have given the commissioners broad discretion to determine the values involved with the maximum of seven hundred and eighty (780) weeks compensation. The commissioners in exercising this discretion will have to consider such factors as the age and sex of this worker, the disabling effect of the loss of the organ with respect to the entire body and the necessity of having full use of such organ. Unfortunately, we cannot establish a specific relative value for each organ of the body, but we believe that the commissioners, guided by competent medical assistance, will apply this provision fairly." House proceedings, June 1, 1967, Vol. 12, part 9, P. 4040.
The Chairman when he made his award relied on the report of Dr. MacEllis Glass, dated February 10, 1978 and set out in part in the Chairman's decision as Paragraph 19. Dr. Glass stated in that report as follows:
". . . This means that in addition to the arm, the entire scapula has been removed, and with it the origins and insertions of many muscle groups beyond those involved in the arm itself. To begin with, the cervical musculature namely the upper portion of the trapezius muscle, the rhomboids, and the levator have lost their insertion, and this produces an imbalance in the neck manifested by weakness on that side, and episodes of neck pain related to muscular fatigue. Beyond this, the patient has lost both pectoralis major and pectoralis minor which serve as accessory muscles of respiration, and result in a well defined diminution in respiratory reserve. Finally, since these are mooring muscles of the scapula which serve to stabilize the dorsal spine, patients with forequarter amputations are vulnerable to increased episodes of backache, some of which may be related also to the structural imbalance produced by the loss of so much body tissue on one side. A final implication of a forequarter amputation is the unfortunate fact that without some scapular retained, it is essentially impossible for this patient ever to be fitted with any type of prosthesis. The cosmetic impact is close to disasterous (sic) as can be readily demonstrated by simply observing the man undressed to the waist. The cosmetic implications a loss of use of the master arm amounts to 40% disability of the whole body, as you indicate, then a forequarter amputation should certainly The best way of demonstrating this is to create silhouette of Mr. Repasi's uninjured left side with arm removed at the shoulder level and contrasting it with the silhouette on the right side where the forequarter amputation has occurred. The additional amount functional soft tissue will then become readily observable."
Relying on Dr. Glass' report, the Chairman found the loss of the scapula, chest musculature, and lung function to be losses to parts of the body not included in the schedule specific and anatomic impairments listed in Section 31-308(a) through (m) and he awarded claimant an additional 78 weeks compensation which he computed on the basis of taking a percentage of the maximum number of weeks allowed for discretionary specific benefits, i.e. ten percent (10%) of the 780 weeks as provided in Section 31-308 as the maximum allowable for discretionary specific benefits.
The award made by the Chairman was not for a whole man impairment. It was for a number of weeks which the Chairman determined based on a calculation he made considering Dr. Glass' opinion, which was based on a whole body the maximum number of weeks awardable under Section 31-308 for discretionary specific i.e. 780 weeks. Section 31-308 provides that the Commissioner in determining an award for discretionary benefits is to consider the "necessity of the organ or complete functioning of the organ with respect to the entire body." The Commissioner property followed the legislative mandate in the award he made for 78 weeks, and the formula he used in reaching his decision was one within his under the statute.
II
Claimant contended in his cross-appeal that the Chairman erred in failing to make an award for scarring and disfigurement caused by loss of the scapula.
There is no question in this claim that the claimant has been severely disfigured. The issue before us is whether or not the Chairman considered all the disfigurement and scarring to which the claimant may be entitled under the statute. Paragraph 22 of the Chairman's Finding and Award states as follows:
"22. The right shoulder scar described in 8 was caused part if not solely by the loss of the arm, so no disfigurement award may be issued for that claim."
And in paragraph 8, referenced in Paragraph 22, the Commissioner found the following:
"8. Claimant, in addition to the amputation, has a Y-shaped coarse scar at right shoulder area — approximately 20-22" overall length, 1/4-3/8" wide, and a scar on the left ankle approximately 2" long, 1/4" wide and dark in color."
Section 31-308 provides as follows concerning scarring and disfigurement:
"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 percent 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 of this chapter, for [any permanent disfigurement of, or 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 the use of a member of the body for which compensation payments are provided by the terms of subsections (a) to (m), inclusive,] or for any scar resulting from an inguinal hernia operation or any spinal surgery."
The claimant claimed that the Commissioner erred in failing to make an award for disfigurement for loss of the scapula including but not limited to scarring in connection with that loss. Section 31-308 provides the Commissioner may make an award for scarring and disfigurement, i.e. ". . . compensation . . . for any permanent disfigurement of, or scar on, any part of the body . . ." with the limitations as quoted above. The Chairman in Paragraph 22 found "the right shoulder scar was caused in large part if not solely by the loss of the arm, so no disfigurement award may be issued for that claim". We agree that to the extent the disfigurement was caused solely by the loss of the arm, which is a scheduled member of the body listed in Section 31-308(a) the Chairman had no authority to issue a disfigurement award. However, in the present case, the claimant not only suffered a loss of the arm but also a loss of the scapula, chest musculature and lung capacity, none of which are parts of the body listed in Section 31-308, (a) to (m) inclusive. To the extent the claimant has sustained scarring or disfigurement related to those losses the claimant is eligible for consideration of a scarring and disfigurement award.
The scapula is the more or less triangular bone in the back the shoulder known as the shoulder blade. The shoulder is the region where the scapula (shoulder blade) meets the clavicle (collar bone) and the humerus (the bone of the upper arm). And the scapula, clavicle and humerus are separate and distinct parts of the body. See illustration.
SCHMIDT'S ATTORNEYS' DICTIONARY OF MEDICINE AND WORD FINDER S-28, 83, 84 (1987).
In considering this issue, we reviewed the entire record which included color photographs which show that in addition to the amputation of the claimant's right arm, his entire right scapula has been removed, leaving claimant with a very significant disfigurement which was described in medical terms by Dr. Glass in his Feb. 10, 1978 report quoted above.
We conclude that the Chairman has not made a finding on the issue whether or not claimant is entitled to compensation for scarring and/or disfigurement relating to the loss of the scapula, chest musculature and lung capacity. Because we cannot ascertain from the record whether or not the Commissioner considered such an award, we remand this case to him to address that issue. McQuade v. Ashford, 130 Conn. 478, 482-3 (1944).
III
The final issue in this appeal is the claimant appellant's contention that the Commissioner erred in not deciding the constitutional issue posed by a statutory scheme which provides cost-of-living increments for total disability but not for specific disability. The Chairman found that it is not within the Commissioner's limited jurisdictional powers to decide the constitutional question (Paragraph 23, 4/15/83 F and A). We agree.
As a general rule, administrative agencies do not have, the power to decide the constitutionality of statutes. 73 C.J.S. Pub. Admin. Law and Proc. Section 65. And, while administrative agencies do have quasi-judicial powers, the capacity to serve the function of the judiciary does not extend to deciding constitutional issues. Only the courts have authority to take action which runs counter to the expressed will of the legislative body. Public Utilities Commission v. United States, 355 U.S. 534, 539 (1958). The general rule applies to both state and federal agencies as it is a function of the separation of powers doctrine. Caldor Inc. v. Thornton, 191 Conn. 336 (1983). In Caldor, the Connecticut Supreme Court concluded that the State Board of Mediation and Arbitration "as an administrative agency has not been granted the authority to consider constitutional issues." Id. at 344.
We are satisfied the Caldor decision is decisive of the constitutional question in the instant case.
With exception of the remand order as stated herein, the appeal is dismissed and the Commissioner's decision is affirmed.
Commissioners Robin Waller and Gerald Kolinsky concur.