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Neal v. UTC/Pratt & Whitney

CASE NO. 3496 CRB-01-96-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 6, 1998

GLENDORA NEAL

CLAIMANT-APPELLEE

CROSS-APPELLANT

v.

UTC/PRATT & WHITNEY

EMPLOYER

and

CIGNA PROPERTY & CASUALTY

INSURER

RESPONDENTS-APPELLANTS

CROSS-APPELLEES

APPEARANCES:

The claimant was represented by Neil Johnson, Esq., Law Offices of Johnson & Siera, 96 Webster Street, Hartford, CT 06114.

The respondents were represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

These Petitions for Review from the November 22, 1996 Finding and Award of the Commissioner acting for the First District were heard September 5, 1997 before a Compensation Review Board panel consisting of Commissioners James J. Metro, John A. Mastropietro and Stephen B. Delaney.

OPINION

JAMES J. METRO, COMMISSIONER. The respondents have petitioned for review from the October 7, 1996 Finding and Award of the Commissioner acting for the First District. The claimant has also filed a cross-appeal from that decision. This case concerns an award of § 31-308(d) benefits to the claimant for her August 11, 1989 injury involving contact dermatitis to her hands. The claimant argues that her award was too small, while the respondents contend that it was too large, having failed to allow for a credit based on a previous scarring award for the same injury. We have concluded that this case should be remanded to the trial commissioner for further findings.

The trial commissioner found that the claimant was a 30-year-old testing inspector at UTC/Pratt & Whitney on August 11, 1989. As a child, she had suffered from eczema to her face, knees and elbows, and was treated for that condition by Dr. Dalton in 1967. This childhood condition made her more susceptible to contracting dermatitis from exposure to chemicals. During August of 1989, the claimant’s hands started breaking out after she made contact with chemicals used at Pratt & Whitney. She visited the employer’s medical facility on August 11, and was diagnosed with contact dermatitis. She was given gloves and protective ointments, and was referred to Dr. Dalton. He continued to treat the claimant, noting on October 31, 1990 that she had a hand rash that was causing crusting and scaling on both her hands. Dr. Dalton also diagnosed contact dermatitis, and recommended dry skin care and the use of protective gloves.

The claimant was awarded 20 weeks of compensation for disfigurement described as “permanent and significant scarring of both hands pigmentation discoloration right arm and right elbow area” on November 13, 1991 by a workers’ compensation commissioner. The claimant testified that she continues to suffer from the contact dermatitis, in that she experiences outbreaks of skin rashes on her hands and that she had problems bending her fingers, buttoning clothing, and using eating utensils. Several doctors have agreed that the claimant’s symptoms have been exacerbated by her exposure to chemicals at work, and have diagnosed permanent partial impairment to her skin. Dr. Rothe found that impairment to be 10 percent, while Dr. Kugelman believed that it was a five percent permanent partial impairment.

The trial commissioner ultimately decided that the claimant suffered from a five percent permanent impairment of the skin as a result of her exposure to chemicals at the workplace. He awarded the claimant 39 weeks of specific indemnity benefits pursuant to § 31-308(d) with an maximum medical improvement date of June 1, 1995. After the respondents filed a Motion to Correct, he reduced the award to 24.2 weeks of benefits. As noted above, both parties have filed appeals from the commissioner’s decision.

We will begin by considering the respondents’ appeal. They contend that the trial commissioner erred by awarding permanent partial disability benefits pursuant to § 31-308(b) because § 31-308(d) benefits had already been awarded for the same injury. In the alternative, they argue that the commissioner should have at least offset the permanent partial disability award by the amount of the previous scarring award.

At the time of the claimant’s injury, § 31-308(b) provided, in relevant part, that compensation shall be provided “for the loss of the master hand at or above the wrist, or the complete and permanent loss of the use of said hand, two hundred and fifty-two weeks, and for such loss of the other hand or the use of said hand, two hundred and thirty-two weeks.” Section 31-308(d) provided that:

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 per cent 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, for any permanent significant disfigurement of, or permanent significant 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 use of a member of the body for which compensation payments are provided by the terms of subsection (b) of this section 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 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.

It is worth noting that both of the awards at issue in this case were made with reference to § 31-308(d), as the commissioner did not cite § 31-308(b) in making his award for a five percent permanent partial impairment of the skin. Section 31-308(b) is implicated only insofar as the trier adjusted his permanent partial impairment award to provide 24.2 weeks of benefits to the claimant, which was calculated on the basis of the 484 week-scale that § 31-308(b)(2) uses for both hands. By its terms, § 31-308(d) leaves the duration of an award of benefits to the trial commissioner’s discretion, prescribing only a maximum of 780 weeks.

The respondents attempt to argue that an award of compensation for both disfigurement and permanent partial disability for the loss of use of the claimant’s hands constitutes double compensation, which is impermissible under Chapter 568. See Olmstead v. Lamphier, 93 Conn. 20, 23 (1918). We disagree. While an award of unscheduled benefits for the loss of or loss of use of an organ pursuant to § 31-308(d) is intended to duplicate for the unlisted body parts the same benefits that are available under § 31-308(b); Romanski v. West Hartford, 34 Conn. App. 307, 315 (1994); an award of benefits for a permanent disfigurement or scar is explicitly defined by § 31-308(d) as being in addition to benefits for the specific loss of or loss of use of a member of the body. See Scalora v. Dattco, Inc., 39 Conn. Sup. 449, 452-53 (1983). Simply put, a scarring award is for the visible disfigurement caused by an injury, while a permanent partial impairment award is for the functional impairment of a body part. In most situations it is permissible to award both, if both types of damage have been incurred.

Here, it is clear that the initial 20-week award from 1991 was for scarring and skin discoloration, and had nothing to do with the functional impairment of the claimant’s hands. It is less clear that the 1996 Finding and Award was solely based on the loss of function of the skin on the claimant’s hands, as the nature of the claimant’s skin problem includes both functional and visual components. In the past, we have seen cases in which claimants have received permanent partial disability benefits for dermatitis of the hands. Misenti v. International Silver Co., 215 Conn. 206 (1990) (award made for scheduled loss to hands under § 31-308(b)); Bowman v. Jack’s Auto Sales, 16 Conn. Workers’ Comp Rev. Op. 223, 3384 CRB-1-96-7 (decided June 18, 1997) (§ 31-308(d) award and § 31-308(b) award were made for the same disability, and an offset of benefits was required). That is certainly a possible result here as well.

However, the medical reports in evidence discuss both the claimant’s functional impairments and the disfigurement that her dermatitis has caused. See, e.g., Claimant’s Exhibit A. The commissioner’s findings cite the reports that are in evidence, but do not explain whether the five percent permanent partial impairment rating is reached based exclusively on the claimant’s functional impairment or on the appearance of her skin as well. Because the medical reports of Drs. Rothe and Kugelman address both the claimant’s difficulty in performing certain tasks and the physical appearance of her hands, a more detailed description of the basis for the commissioner’s findings is necessary in order to determine whether there has been a duplication of compensation in this case. Therefore, further findings will have to be made regarding the nature of this award.

As a result of that decision, we will not address the claimant’s argument that the trier should have awarded ten percent of 780 weeks instead of five percent of 484 weeks as compensation for her permanent partial disability. Both of those issues are subject to the commissioner’s factual findings, which must be revised to some extent in accordance with our holding here. We do note, however, that the commissioner has considerable discretion to determine the duration of an award under § 31-308(d). See Chialastri v. Angelo’s Trucking, 16 Conn. Workers’ Comp. Rev. Op. 239, 3256 CRB-8-96-1 (decided June 24, 1997).

This case is therefore remanded to the trial commissioner for further proceedings.

Commissioners John A. Mastropietro and Stephen B. Delaney concur.

Workers’ Compensation Commission

Page last revised: June 29, 2005

Page URL: http://wcc.state.ct.us/crb/1998/3496crb.htm

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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