Opinion
CASE NO. 369 CRD-5-84
JUNE 15, 1987
The claimant was represented by Edward T. Dodd, Esq.
The respondents were represented by Richard Stabnick, Esq.
Counsel for parties waived oral argument and submitted briefs only.
This Petition for Review from the Fifth District Commissioner's Finding of December 11, 1984 was heard May 31, 1985 and decided on the basis of submitted briefs before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Andrew Denuzze.
OPINION
On September 11, 1981, claimant sustained a compensable injury to her neck while employed by the respondent employer. She underwent an anterior C4-C5 discectomy and fusion January 5, 1983. A piece of bone from the claimant's hip was removed and grafted on the indicated vertebral bodies. A Voluntary Agreement was executed and approved March 29, 1983. The cervical fusion surgery and bone graft caused surgical scars on her hip and on the anterior her neck. Claimant sought an award under Sec. 31-308(d) C.G.S. for both scars. The Fifth District Commissioner in his Finding of December 11, 1984 held neither scar was compensable under Sec. 31-308(d).
Sec. 31-308(d) provides, "In addition to compensation total or partial incapacity. . .the commissioner may award. . . compensation. . .for any permanent significant disfigurement of. . .or permanent scar on, any part of the body. . .but no compensation shall be awarded. . .for any scar resulting from an inguinal hernia operation or any spinal surgery." (emphasis added). The trial Commissioner concluded that neither the throat nor the hip scar was compensable as they "resulted from" spinal surgery.
To construe the statute we need to determine the meaning of "resulting from" in Public Act 842, 1967 Public Acts, now Sec. 31-308(d) C.G.S. Representative Paul Pawlak, St., in summarizing the bill to the Connecticut House of Representatives stated:
"[W]e propose that scars which are disfiguring on any part of the body (except those due to an operation on the back or from a hernia) should be compensated as scars. We have removed the requirement that such scars be serious because the word requires a judgement that cannot be made with any satisfaction and we propose to increase the maximum for scars from 104 weeks to 208 in recognition of the fact that such scars can have a permanent effect upon a man or woman, particularly in cases involving burns."
12 H.R. Proc., Pt. 9, 1967 Sess. 4039-40.
In the Connecticut Senate, Senator Anthony P. Miller noted,
"Payment for scars are increased from one hundred four weeks to two hundred eight weeks, and will cover scarring of all types, other than those due to operation for a hernia or back injury."
12 Sen. Proc., Pt. 5, 1967 Sess. 2259.
Before the 1967 enactment whose legislative history is indicated above our Supreme Court had occasion to consider the original 1939 disfigurement statute, General Statutes Conn. Sup. 1939 Sec. 1328e, in Finoia v. Winchester Repeating Arms Co., 130 Conn. 381 (1943) and Dombrowski v. Fafnir Bearing Co., 148 Conn. 87 (1961). That 1939 statute provided, "the Commissioner may award. . .compensation. . .for any serious and permanent disfigurement of the face, neck, head or hands, up to one hundred and four weeks. . . ". In Finoia, supra, at 384 the court said, "The purpose of the legislature clearly was to provide for compensation for disfigurement of certain parts of the body which are ordinarily exposed. . ." . The comments of Representative Pawlak and Senator Miller made clear that the 1967 General Assembly intended to add other parts of the body and not to subtract from the 1939 disfigurement coverage. Nowhere in the statutory language itself or in the comments on the floor was there any mention of eliminating scars on the neck, an "ordinarily exposed" part of the clothed body. Representative Pawlick speaks of excluding scars "due to an operation on the back". It should be here noted that anterior incisions on the neck for cervical disc surgery were not generally known in 1967. Only recently has the frontal approach been widely utilized.
1B GORDY-GRAY ATTORNEY'S TEXTBOOK OF MEDICINE, Paragraph 10A 75(3) (Matthew Bender, 3rd Edition, 1987).
Given this statutory language, the legislative history and the state of the medical arts in 1967, we hold that the legislature did not wish to provide scarring benefits for scars resulting directly from an incision on the back, but did wish to continue to compensate employees for scars which were disfiguring of distracting from the personal appearance of the individual. Neither of the scars here involved derived from an incision on the back. Therefore, we conclude that they are compensable.
The decision of the Fifth District Commissioner is reversed and remanded for further proceedings in conformity herewith.
Commissioners Robin Waller and Andrew Denuzze concur.