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Peters v. State of Connecticut/Southern Connecticut State University

CASE NO. 1616 CRB-5-92-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 1, 1995

THEODORE PETERS

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/SOUTHERN CONNECTICUT STATE UNIVERSITY

EMPLOYER

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Richard L. Gross, Esq., Cantor, Floman, Russell & Gross, P. O. Box 966, Orange, CT 06477.

The respondent was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the December 17, 1992 Finding and Award of the Commissioner for the Fifth District acting for the Third District was heard April 8, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the December 17, 1992 Amended Finding and Award of the Commissioner for the Fifth District acting for the Third District. In previous proceedings regarding this matter, the respondent withdrew an appeal from a May 2, 1986 ruling of that same commissioner, and later appealed from an August 20, 1990 Finding and Award of that commissioner. The latter appeal resulted in a partial affirmance and a partial reversal and remand by this board for the entry of further factual findings, which has since been completed. See Peters v. State of Connecticut, 10 Conn. Workers’ Comp. Rev. Op. 32, 1103 CRD-3-90-8 (Jan. 13, 1992) (Peters I). The respondent now claims that the Amended Finding and Award should be reversed because 1) the commissioner applied the incorrect statutory criteria in determining benefits under General Statutes § 31-308 (d), and 2) this board improperly determined on the prior appeal that the claimant’s notice of claim was timely and that his Motion to Preclude was properly granted. We affirm the trial commissioner’s decision.

Section 31-308 (d) was repealed by the state legislature in 1993. At the time of the claimant’s injury, however, it provided in relevant 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.”

In awarding benefits to the claimant under this section, the commissioner considered all of the listed statutory criteria, noting that the claimant was a 46-year old male who has lost 100 percent of his rectal function, 50 percent of the use of his abdominal wall, and virtually all of his sexual potency as a result of work-related rectal cancer.

The respondent contends, however, that the commissioner was also required to make a finding as to the effect of the claimant’s injuries on his earning capacity before awarding benefits under § 31-308 (d). It relies primarily on Ancona v. Norwalk, 217 Conn. 50 (1991), and Ferrara v. Clifton Wright Hat Co., 125 Conn. 140 (1939), in its argument that, unlike § 31-308 (b) benefits, § 31-308 (d) benefits compensate a claimant for his or her loss of wages as a result of an inability to work. See Ancona v. Norwalk, supra, 55. We find neither of those cases to be controlling. Ferrara concerned a different statute than the one at issue in this case and is simply not relevant to our interpretation of §31-308 (d). Ancona’s characterization of § 31-308 (d) benefits as compensation for the inability to work was made in the course of a determination whether prior awards of §31-308 (d) permanent partial disability benefits and § 31-306 (b) (2) dependent death benefits could be paid simultaneously, and did not discuss the factors required to be considered in making a §31-308 (d) award. Ancona v. Norwalk, supra, 55.

Significantly, Ancona relied on Felia v. Westport, 214 Conn. 181 (1990), which held that “in considering ‘the disabling effect’ [under §31-308 (d)] ... , the commissioner may take into account the plaintiff’s inability to reenter the labor market, and so may indeed be providing compensation for economic loss.” Id., 187 (emphasis added). The court was clearly stating in Felia that, in his broad discretion under § 31-308 (d), the commissioner could possibly have considered wage loss in awarding “special” benefits to a plaintiff under § 7-433c. Although such a consideration would have been permissible, it was by no means thought to be required by the Felia court.

Moreover, our Supreme Court noted in Morgan v. East Haven, 208 Conn. 576, 584 n. 10 (1988), that compensation under § 31-308 often is considered specific compensation, and that the plaintiff’s compensation rate had been established through a list of “non-scheduled injuries” devised by the commissioners under the authority of § 31-308 (d). Prior cases decided by this board also demonstrate that compensation under the statute depends upon the loss of or the loss of use of an organ and its disabling effect upon the claimant without requiring specific consideration of the claimant’s wage earning potential. Furrey v. Wells Fargo Alarm System, 11 Conn. Workers’ Comp. Rev. Op. 192, 194-95, 1307 CRD-3-91-9 (Sept. 22, 1993); St. Germain v. Waterbury, 9 Conn. Workers’ Comp. Rev. Op. 290, 1084 CRD-5-90-8 (Dec. 27, 1991); Alger v. Rossi Corporation, 9 Conn. Workers’ Comp. Rev. Op. 261, 263, 1065 CRD-1-90-6 (Dec. 5, 1991); Repasi v. Jenkins Brothers, 4 Conn. Workers’ Comp. Rev. Op. 82, 85 n. 4, 227 CRD-4-83 (June 11, 1987). We choose to remain consistent with this line of cases, and hold that the commissioner was not required to make a finding regarding the effect of the claimant’s organ loss on his wages in awarding benefits under § 31-308 (d).

The respondent also requests that this board reconsider its decision in Peters I affirming the commissioner’s finding that the claimant’s notice of claim was timely. The respondent argues that the claimant’s notice of claim did not meet the technical requirements of § 31-294, and that as a “court of continuing jurisdiction,” this board has the power to correct its earlier decision.

Section 31-294 provides in relevant part that “notice may be given to the employer or the commissioner and shall state, in simple language, ... the date of the first manifestation of a symptom of the occupational disease and the nature of such disease.” We decided in Peters I that the commissioner had sufficient evidence to conclude that the claimant’s notice was timely and found that the claimant’s notice otherwise satisfied the technical prerequisites of § 31-294. We remanded the matter to the commissioner solely on an evidentiary issue unrelated to the claim regarding the timeliness and sufficiency of notice.

The proceedings on remand were properly limited insofar as they were required to conform with the opinion of this board, and the respondent is not now entitled to raise questions which were or could have been answered in the last appeal. Hartford National Bank & Trust Co. v. Tucker, 195 Conn. 218, 222 (1985). Although it is true that the sufficiency of notice under § 31-294 is an issue of subject matter jurisdiction which can be raised at any time, Peters I, 10 Conn. Workers’ Comp. Rev. Op. at 34, it is also true that this board addressed the respondent’s claim in the previous appeal, and determined that the claimant’s notice was technically satisfactory. “There must be a finality to litigation at some point ....” Cuccuro v. West Haven, 2 Conn. Workers’ Comp. Rev. Op. 87, 88, 103 CRD-3-81 (July 27, 1984), affirmed, 6 Conn. App. 265 (1986), cert. denied, 199 Conn. 804 (1986). We thus decline to reconsider that issue. Finally, as the granting of the Motion to Preclude did not concern subject matter jurisdiction, we need note only that it is not eligible to be addressed at this stage of the proceedings. Hartford National Bank & Trust v. Tucker, supra.

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

Workers’ Compensation Commission

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