CASE NO. 1963 CRB-4-94-2
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 31, 1995
CONNECTICUT CONTAINER CORP.
ZURICH AMERICAN INS. CO.
The claimant was represented by James P. Brennan, Esq., Brennan, Santoro & Rutt, 65 Bank St., P. O. Box 70, Waterbury, CT 06720-0070.
The respondents were represented by Kevin J. Maher, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0650.
This Petition for Review from the January 31, 1994 Finding and Award of the Commissioner acting for the Fourth District was heard January 13, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and Amado J. Vargas.
JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the January 31, 1994 Finding and Award of the commissioner for the Fourth District. They argue on appeal that the commissioner erred in granting a scarring award for skin graft donor site scars that resulted from amputating the claimant’s left lower leg. We affirm the trial commissioner’s decision.
The facts of this case are simple: the claimant suffered a compensable injury to his left leg on January 31, 1992 that resulted in its amputation above the knee. Multiple skin grafts were made from the claimant’s abdomen to his left leg stump. The commissioner awarded the claimant 35 weeks of compensation benefits for the skin graft donor site scars on his hip and abdomen. The respondents have appealed, arguing that the commissioner misinterpreted § 31-308(e) C.G.S. in making that award.
Section 31-308(e) provides in relevant part that “the commissioner, not earlier than one year from the date of the injury, may award compensation as he deems just . . . for any permanent significant disfigurement of, or permanent significant scar on, any part of the body. The commissioner may not award compensation under this subsection when the disfigurement was caused solely by the loss of or the loss of use of a member of the body for which compensation is provided under subsection (b) of this section or for any scar resulting from an inguinal hernia operation or any spinal surgery. . . .”1 Section 31-308(b) indeed provides compensation for the loss of one leg above the knee. Because the donor site scars result from the amputation of the claimant’s leg, the respondents argue that they are also excluded by the exception in § 31-308(e).
We begin our analysis of this issue with a discussion of Stitzer v. Rinaldi’s Restaurant, 211 Conn. 116 (1989). In that case, our Supreme Court was confronted with a claimant who had been denied a scarring award by the trial commissioner for surgical scars that were left on her hip and the front of her neck as a result of a cervical disc operation that required a bone graft from her hip. This Board and the Appellate Court determined on appeal that both scars were compensable because they did not directly result from an incision in the claimant’s back. The Supreme Court reversed, however, holding that the plain language of § 31-308(d)2 precluded recovery for “any scar resulting from . . . any spinal surgery,” which is what the claimant underwent when she had her cervical vertebrae fused. Because the claimant’s scars on her hip and neck would not have existed if she had not undergone the surgery, the Court decided that they were not compensable. It also cited caselaw showing that the technique of bone grafting existed before the spinal surgery exclusion was enacted, thus refuting the argument that scars on other body parts could not have been contemplated by the legislature.
Although the case at bar and Stitzer certainly appear similar, there is a key difference. The scarring in Stitzer fell under the provision in § 31-308(e) that prohibits an award for “any scar resulting from . . . any spinal surgery.” It applies irrespective of whether an award has been made for spinal surgery under another section of the Workers’ Compensation Act. In contrast, the exclusion applicable to our case is the one centering on whether “the disfigurement was caused solely by the loss of . . . a member of the body for which compensation is provided under subsection (b) of this section . . . .” This demonstrates that the legislature contemplated that an award of compensation under another subsection would be available in lieu of a scarring award under § 31-308(e).
Here, no compensation for the loss of the skin on the abdomen or hip was available under § 31-308(b). As the formula used in calculating an award for loss of a member under that section is the same whether or not a skin graft is made from another body part, it is safe to assume that the legislature did not contemplate that skin graft disfigurement to other body parts would be included in a permanent partial disability award under § 31-308(b). Indeed, a claimant would not be compensated at all for such a disfigurement if § 31-308(e) did not apply. Given the humanitarian purpose and remedial nature of the Workers’ Compensation Act, see Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979), and the difference in the legislative approach between the § 31-308(e) exception applicable here and the one applicable in Stitzer, supra, we decline to construe the statute in a narrow manner inhibitive of the claimant’s right to benefits.
With regard to our prior decision in Repasi v. Jenkins Brothers, 4 Conn. Workers’ Comp. Rev. Op. 82, 87-88, 227 CRD-4-83 (June 11, 1987), appeal dismissed, 16 Conn. App. 121 (1988), we note that the award prohibited there was for a Y-shaped scar on the claimant’s shoulder that the commissioner found directly resulted from the amputation of his arm. Because the loss of the arm was listed in § 31-308(b), no compensation was awarded. Again, we note that the introduction of skin grafting and the implication of disfigurement to other body parts was not contemplated by the legislature in creating the § 31-308(e) exception for losses compensated under § 31-308(b). For similar reasons as discussed above, we hold that Repasi is inapposite to this case.
The trial commissioner’s decision is affirmed.
Commissioners Roberta S. D’Oyen and Amado J. Vargas concur.
1 P.A. 93-228 amended the statute by replacing “any part of the body” with “(A) the face, head or neck, or (B) on any other area of the body which handicaps the employee in obtaining or continuing to work.” This amendment took effect after the claimant’s injury occurred, and is inapplicable to this case. BACK TO TEXT
2 The language of § 31-308(d) is now codified in § 31-308(e). But see note 1, supra. BACK TO TEXT