State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Flouton v. Can, Inc.

CASE NO. 4379 CRB-7-01-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 13, 2002

ESTATE OF DAVID FLOUTON (Deceased)

CLAIMANT-APPELLEE

v.

CAN, INC.

EMPLOYER

and

TRAVELERS PROPERTY CASUALTY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by George Romania, Esq., 2862 Whitney Avenue, Hamden, CT 06518.

The respondents were represented by Donald Babiyan, Esq., Sizemore Law Offices, Crossroads Corporate Park, 6 Devine Street/First Floor, North Haven, CT 06473.

This Petition for Review from the March 27, 2001 Finding and Award of the Commissioner acting for the Seventh District was heard November 16, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the March 27, 2001 Finding and Award of the Commissioner acting for the Seventh District. In that decision, the trial commissioner determined that the decedent’s estate was entitled to receive permanent partial disability benefits pursuant to § 31-308(d). The respondents contend on appeal that § 31-308(d) does not allow a deceased claimant’s estate (as opposed to a surviving spouse, dependent, or child) to collect permanent partial disability benefits.

The trial commissioner found the following relevant facts. The decedent sustained a compensable dominant right hand injury on December 23, 1996. Subsequently, the decedent’s treating physician assessed a 100% permanent partial disability of the right hand. A physician who conducted an independent medical examination at the request of the respondents assessed a 58% permanent disability of the right hand. Thereafter, on or about September 23, 1999, the decedent notified the Workers’ Compensation Commission, Seventh District, that he had attained maximum medical improvement and that he sought an informal hearing regarding an award of permanent partial disability (also referred to as a “specific” award). The decedent died on September 26, 1999. He had received temporary total disability benefits from December 23, 1996 continuing until his death. The decedent’s father was named the administrator of his estate, and the decedent had no spouse, children of any age, or any statutory dependents under § 31-306 on the date of his death. The trial commissioner concluded that the decedent’s estate was entitled to receive the decedent’s permanency benefits1, citing McCurdy v. State, 227 Conn. 261 (1993).

In support of their appeal, the respondents argue that the class of individuals authorized to receive the vested but unmatured (unaccrued) and unpaid permanency award of a deceased claimant are limited by § 31-308(d) to only his surviving spouse, dependents, or if he has none, to his children of any age. In 1989, the legislature passed P.A. 89-346, which added subsection (e) to § 31-308, which subsection provided as follows:

Any award for compensation made pursuant to this section shall be paid to the employee, or in the event of such employee’s death, to his surviving spouse or, if he has no such spouse, to his dependents in equal shares or, if he has no such spouse or dependents, to his children, in equal shares, regardless of their age.

Subsection (e) was subsequently amended and relettered (d) pursuant to P.A. 93-228 and now reads as follows:

Any award or agreement for compensation made pursuant to this section shall be paid to the employee, or in the event of the employee’s death, whether or not a formal award has been made prior to the death, to his surviving spouse or, if he has no surviving spouse, to his dependents in equal shares or, if he has no surviving spouse or dependents, to his children, in equal shares, regardless of their age.

The date of injury rule applies to P.A. 89-346 which became effective October 1, 1989. Cappellino v. Cheshire, 226 Conn. 569, 576 (1993); Roswell v. State, 29 Conn. App. 432 (1992), cert denied, 224 Conn. 922 (1992).

We will now review the case law regarding the ability of estates, as opposed to dependents, to claim unmatured permanent partial disability benefits due to a deceased claimant. A brief introduction to this issue is in order, as it has been succinctly explained by Professor Larson as follows:

[O]ne of the features distinguishing a compensation award from a tort recovery is the absence of any property right in an award which can survive in favor of heirs. The problem most frequently arises in connection with schedule or other permanent partial awards, when an employee who has been awarded, say, 312 weeks’ benefits for loss of an arm dies at the end of 12 weeks. The question is whether his or her heirs have a claim upon the unaccrued 300 weeks’ payments.
Accrued but unpaid installments are, of course, an asset of the estate, like any other debt. . . . When the award takes the form of a lump sum, the amount due as accrued payments is the entire amount of the lump sum.
When, however, the award, although for a fixed number of weeks, is paid weekly or periodically, most jurisdictions in the absence of a special statute to the contrary have held that the heirs [i.e. estates] have no claim upon the unaccrued payments, since the award is a personal one, based upon the employee’s need for a substitute for lost wages and earning capacity. There is, however, some contra authority.
This rule has been modified by statutes in some states, but it is significant that the modification often takes the form, not of giving the unaccrued balance to heirs indiscriminately, but of giving it in fixed proportions to dependent heirs. Accordingly, if there are no dependents in the statutory sense, the award abates.
4 Larson’s Workers’ Compensation Law (2000), §§ 89.01- 89.03.

In Connecticut, our courts have interpreted this issue in accordance with the above principles. Specifically, in Bassett v. Stratford Lumber Co., 105 Conn. 297 (1926), the court held that the unmatured portion of a permanent partial disability award survived to a decedent’s dependent widow but not to his estate. In that case, an award for permanent partial disability of the decedent’s eye was made for 104 weeks, and the decedent died after receiving only 23 weeks, “leaving a balance of the award which had neither been paid nor matured for eighty-three and four-sevenths weeks.” Id., 298. The decedent’s estate appealed the commissioner’s order that these remaining weeks be paid to the dependent widow. The court reviewed the history of the Workers’ Compensation Act, emphasizing that workers’ compensation benefits are intended for the injured worker and his dependents rather than his estate. “The purpose of the statute is benefit to the dependent, not to the estate of the deceased employee.” Id., 301, quoting Jackson v. Berlin Construction Co., 93 Conn. 155, 157 (1926).

Indeed, the court in Bassett, supra, explained that it did not find in other states’ Workers’ Compensation Acts “any specific provision by which the award may in any contingency become a part of the estate of the injured employee, or the award be obtained by the administrator or executor of his estate for its benefit.” Id., 299 (emphasis added). Furthermore, the court explained that “the employee has no vested right to the unmatured compensation awarded, and hence it cannot pass to his personal representatives [his estate].” Id., 300. “Our Act does not purport, either expressly or by necessary implication, to confer in any case any right to the award upon any person other than the injured employee, or his dependent. Construction of the Act giving the award to other than the employee or his dependents would defeat its primary purpose.” Id. (emphasis added). The court concluded that in our state, the legislative intention was “to confine the employee’s interest to such part of the award as has accrued within his lifetime, and as to such portion of the award as did not mature in the employee’s lifetime there is no survivorship in his estate.” Id., 301 (emphasis added). Thus, the court explained that overruled Forkas v. International Silver Co., 100 Conn. 417 (1924) “in its holding that the unmatured part of such award belongs to the estate of the deceased employee.” Bassett, supra, 305.

The holding in Bassett, supra, that awards which have accrued (matured) during a claimant’s lifetime may become part of the estate, but that unmatured portions do not go to the estate, has been cited with approval in numerous cases, including the following: Cappellino, supra; Morgan v. East Haven, 208 Conn. 576 (1988); Finkelstone v. Bridgeport Brass Co., 144 Conn. 470 (1957); Greenwood v. Luby, 105 Conn. 398 (1926); see also Roswell, supra. In Finkelstone, supra, the court explained that the Act “does not purport, either expressly or by necessary implication, to confer upon any person other than the injured employee or his dependents any right to an award.” Id., 472, citing Bassett, supra. Additionally, the court in Finkelstone, supra, explained: “To be sure, the estate of a deceased employee may, at times, have a right in or to an award. This happens on those occasions when a portion of the compensation awarded or to be awarded the injured employee has accrued during his lifetime and remains unpaid at his death. In such an event, the unpaid portion belongs to his estate.” Id., 472; see also Roswell, supra.

We will now examine the legislative history of Public Act 89-346. Our review of the legislative history reveals that the legislature drafted P.A. 89-346 in response to Morgan, supra, in which the court held that a permanent partial disability award was not payable to the estate (the adult children) of a deceased claimant. In Morgan, a trial commissioner issued a decision which found that the claimant, a uniformed fire fighter, had a compensable 7-433c claim, and awarded a 75% permanent partial disability of his cardiovascular system. The commissioner ruled that the claimant was entitled to 585 weeks of benefits. Subsequently, the claimant died, survived by a wife and two adult children. The respondents continued payments to the wife, until she died approximately one year later, at which time all payments ceased, as there were no dependents.

In Morgan, supra, the estate of the deceased claimant (the adult children) sought the unpaid weeks of the 585 week permanency benefits. The court ruled that benefits under § 7-433c constitute compensation for economic loss, and thus resemble “special” benefits rather than “specific” benefits, “and as such, do not pass to the estate of the recipient.” Id., 585-86. The court further noted that even if the benefits were deemed “specific” benefits, they would not pass to the estate as “any unmatured part of a weekly compensation scheme does not succeed to the estate of the employee.” Id., 587, (emphasis added), citing Bassett, supra. The court further explained: “Had the commuted payment [i.e. a matured amount] been outstanding at the time of [the widow’s] death, there is little dispute that the outstanding balance of the commuted amount would be due and payable to the estate.” Morgan, supra, 587.

In the Senate Proceedings, the discussion regarding P.A. 89-346 indicates that the legislation was intended to benefit adult children of claimants who die leaving no dependents, where an unpaid and unmatured permanency award would otherwise thus abate, such as in Morgan, supra. Specifically, the legislative history reveals that Senator Maloney moved for passage of the bill in the Senate, and remarked as follows:

SENATOR MALONEY: . . . What this bill does is make clear that Workers’ Compensation benefits can be paid to the children of an injured worker despite the demise of that worker and the fact that the children may no longer be technical dependents. So it basically allows the benefit to survive the individuals (sic) death for their children.
THE CHAIR: Further remarks on the bill? Senator Freedman.
SENATOR FREEDMAN: . . . How long would these benefits last?
THE CHAIR: Senator Maloney.
SENATOR MALONEY: . . . The benefits last depending on the award. The awards are usually expressed in numbers of weeks. And the bill does not lengthen the award. All it does is that under the existing law if the worker were to die before the benefits were fully paid out the children of the worker would not necessarily receive those benefits. This bill corrects that. (Emphasis added).
THE CHAIR: Senator Freedman.
SENATOR FREEDMAN: Again, through you to Senator Maloney. Currently if the worker should die what happens to those benefits? Do they just stop or do they go to the spouse?
THE CHAIR: Senator Maloney.
SENATOR MALONEY: Well, it depends on the family situation. But what this bill corrects is where the benefits would have gone to the children if they were dependents, they now can go to the child regardless of being a dependent. In other words, if the child is (sic) already reached the age of majority.
SENATOR FREEDMAN: Thank you.
THE CHAIR: Further remarks? . . . /blockquote>
SENATOR LOVEGROVE: . . . In other words, if a 60 year old on Workers’ Compensation dies, a 40 year old son or daughter regardless of their financial state can collect this Workers’ Compensation? . . . /blockquote>
SENATOR MALONEY: Yes, that’s right, Mr. President, just as if they were the beneficiaries of some other type of insurance policy.
32 Sen. Proc., Pt. 12, 1989 Sess., pp. 3951-53.

Our supreme court observed that the legislative history reveals that the legislature was aware of the holding in Bassett, supra, and knew that “§ 31-308 benefits survive the employee’s death and pass to the dependents.” Cappellino, supra, 576 (emphasis added). Significantly, the legislature considered an amendment which would broaden the possible recipients by using the term “estate.” The amendment was referred to the Appropriations Committee upon the suggestion of Representative Belden, who noted that the amendment “has a potential [e]ffect upon both the state and the municipalities, in terms of cost.” 32 H.R. Proc., Pt. 5, 1989 Sess., p. 1602. This amendment was rejected after the Appropriations Committee recommended its rejection. 32 H.R. Proc., Pt. 17, 1989 Sess., p. 5874.

When asked why the legislation did not simply provide that the benefits would go to the estate, Representative Adamo answered:

REP. ADAMO: . . . my recollection is it was the intent of the committee when it first passed this bill not to broaden it too much. It was our intent to try to deal with a particular case and with a particular finding that happened in a case here in East Haven, Connecticut. It dealt with a situation just as I described. The claimant died. The claimant’s widow died and there were no dependent children, but there were adult children over 21 and the court ruled that they were not, under the present statute, entitled to benefits.
. . . it was the intent of the committee, of the Labor Committee and the Appropriations Committee as well, to narrow it to simply the children to at least provide them with those leftover specific benefits.
32 H.R. Proc., Pt. 17, 1989 Sess., p. 5877-8 (emphasis added).

Accordingly, it is clear from the legislative history that the legislature intended to add adult children to the class of individuals entitled to receive unpaid, unmatured permanency benefits. Our Supreme Court explained that “the legislature amended § 31-308 in 1989 to designate the class of people to whom such awards may survive.” Cappellino, supra, 576. Furthermore, it is clear that the legislature chose not to broaden the class (beyond dependents and adult children) to include the estates of deceased workers. Our analysis must now include the McCurdy, supra, decision, which was issued on August 17, 1993.

In McCurdy, supra, the date of injury was November 21, 1983, which was prior to October 1, 1989, the effective date of P.A. 89-346. In McCurdy, the decedent’s widow was not a dependent, and thus the plaintiff in this case was his estate. Id., 262, fn. 2. The decedent reached maximum medical improvement prior to his death, but died without an award having been made. After reaching maximum medical improvement and being assessed a 70% permanent partial disability of the back, the decedent sought an award of permanent partial disability on December 15, 1987 before a commissioner who “refused to award permanent partial disability benefits because the decedent remained totally disabled.” Id., 265.

In reviewing the decision of the board and of the trial commissioner, the court found that the trial commissioner erred in refusing to amend his findings to include the fact that the claimant had reached maximum medical improvement and had been assessed a 70% permanency of the back, as there was “absolutely no evidence in the record to contradict these conclusions.” Id., 267. Furthermore, the court found that the commissioner did “not have discretion to deny such an award” once the decedent had requested it, “as the decedent did in this case.” Id., 269. Thus, the court found that the decedent became entitled to a permanent partial disability award prior to his death. The court then held that where “there are no dependents . . . a permanent partial disability award that became due to the decedent before his death is payable2 to the estate.” Id., 270, (emphasis added).

The holding in McCurdy, supra, hinges on the fact that the decedent was improperly refused a permanent partial disability award which he requested before a commissioner. The nature of that request is unclear, and, thus, it is arguable that said request may have been for a commuted, or lump sum, award, which under Bassett, supra, and its progeny would be payable to an estate as a matured award. On the other hand, if the holding in McCurdy, supra, is that where there is an award for a number of weeks of permanency, and the claimant dies prior to all the weeks being paid, then the remainder of the unpaid weeks may pass to the estate, then indeed McCurdy, supra, is reversing Bassett, supra, and its progeny. However, we need not decide this issue, as the McCurdy decision did not address P.A. 89-346 because the date of injury predated that legislation. In contrast, in the case at hand, the date of injury was 1996, and thus we must apply P.A. 89-346.

As set forth in some detail above, we conclude that the legislature designated the class legally able to receive an unpaid, unmatured permanency award as dependents and children of any age, and specifically chose not to broaden this class by including estates. In order to effectuate the intent of the legislature, we must conclude that for injuries occurring after October 1, 1989, an estate is not entitled to receive unpaid, unmatured permanency awards. Thus, the trial commissioner’s decision is reversed.

Commissioners George A. Waldron and Ernie R. Walker concur.

1 The trial commissioner noted that further proceedings may be necessary to determine the exact percentage of disability of the right hand. BACK TO TEXT

2 The court noted that any total disability benefits made to the decedent after he became entitled to the permanency award “can be deducted from a permanent partial disability award.” Id., 269, fn. 9. BACK TO TEXT

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