CASE NO. 1424 CRB-4-92-5
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
FEBRUARY 15, 1994
TRANSAMERICA INSURANCE GROUP
The claimant was represented by Ian A. Cole, Esq., Cohen, Micci & Thomas, 315 Main Street, P.O. Box 313, Derby, CT 06418.
The respondents were represented by Diane D. Duhamel, Esq., Trowbridge, Ide, Mansfield & Schoolcraft, P.C. 207 Main Street, Hartford, CT 06106.
This Petition for Review from the May 8, 1992 Finding and Award of the Commissioner at Large acting for the Fourth District was heard March 26, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George Waldron and Angelo L. dos Santos.
JESSE FRANKL, CHAIRMAN. The claimant has petitioned for review from the May 8, 1992 Finding and Award of the Commissioner at Large acting for the Fourth District. On appeal, the claimant contends that the trial commissioner improperly (1) calculated the compensation rate based on the twenty-six calendar weeks immediately preceding the date of injury rather than the twenty-six week period prior to the date of first incapacity to work and (2) concluded that the claimant was not entitled to benefits under General Statutes Sec. 31-307b because he had not recovered from his prior injury notwithstanding the fact that he had returned to work subsequent to receiving temporary disability benefits for that injury. We affirm the trial commissioner’s calculation of the compensation rate but reverse the commissioner’s denial of Sec. 31-307b benefits.
The claimant sustained an accidental injury to his lower back during the course of and arising out of his employment with the respondent-employer on July 16, 1987 when, while climbing a ladder to install lighting, he felt a pop in his back. The injury was accepted as compensable but the claimant did not claim any benefits, nor did he lose time from work, until approximately September 23, 1989. The claimant’s continuation of work during this period in no way affected, aggravated or contributed to his disabling condition in September, 1989. The claimant was out of work from September 23 to December 5, 1989, during which time he received temporary total disability.
The claimant returned to work on December 5, 1989, without any restrictions. He continued to work until February 16, 1990, when he again became totally disabled. The claimant’s work during this period in no way affected, aggravated or contributed to his disabling condition.1 During this period of employment, however, the claimant continued to experience symptoms related to his workplace injury and continued to receive medical treatment, including prescription pain medication.
In proceedings before the trial commissioner, the claimant contended that the correct compensation rate for both periods of total disability should be calculated based upon his earnings for the twenty-six week period immediately preceding his incapacities. The respondents claimed that compensation should be based on earnings for the twenty-six week period prior to the claimant’s injury of July 16, 1987. The trial commissioner agreed with the respondents.
The calculation of a compensation rate for temporary total benefits is governed by General Statutes Secs. 31-307 and 31-310. Section 31-307 provides that compensation is based on a percentage of the claimant’s “average weekly earnings at the time of the injury,” and Sec. 31-310 provides that average weekly wage is based on “the total wages received by the injured worker from the employer in whose service he is injured during the twenty-six calendar weeks immediately preceding that during which he was injured....” Emphasis added.)
The claimant was injured in 1987 but did not become incapacitated as a result of that injury until 1989. He argues that his 1989, and not his 1987, earnings should be the reference point for calculating his compensation rate. We disagree.
The claimant relies primarily on Rousu v. Collins Co., 114 Conn. 24 (1931), and its progeny, for the proposition that the twenty-six weeks preceding injury means the twenty-six weeks preceding the date of first incapacity. See id., 30-32; Michna v. Collins Co., 116 Conn. 193, 197-200 (1933); Stevens v. Raymark Corporation/Raybestos Manhattan, 28 Conn. App. 226, cert. denied, 223 Conn. 921 (1992); O’Leary v. New Britain, 3 Conn. Workers’ Comp. Rev. Op. 108, 110-11, 236 CRD-6-83 (1986). These cases, however, each involved an incapacity due to occupational disease or exposure to repetitive trauma, a situation in which a considerable period of time often intervenes between actual injury and the consequent incapacity. These cases, then, stand for the proposition that where there is no specific date when a claimant was injured because the injury was due to occupational exposure (and resulting disease or deterioration) over a period of time, the appropriate calculation of the average weekly wage relates to the date of incapacity to work. In fact, in 1980, the legislature codified this common law rule by amending Sec. 31-307 to read: “In the case of an occupational disease, the time of injury shall be the date of total or partial incapacity to work as a result of such disease.” See Public Act No. 80-124; Stevens v. Raymark Corporation/Raybestos Manhattan, supra, 229 n. 2 and accompanying text.
Neither that case law nor the statute, however, support the application of this principle to a case, like the present one, where the injury is the result of an accidental injury which may be definitely located as to the time and the place where the accident occurred. While the claimant points to cases from jurisdictions which have applied the date of incapacity rule to accidental injuries, other jurisdictions addressing the issue have adhered to the date of accident rule in such cases. See generally 2 A. Larson, Workmen’s Compensation Law Sec. 60.11(e), pp. 10-642 to 10-646 (collecting cases). Moreover, when we have had the opportunity to address this issue in a slightly different context, we have distinguished between “a single accident setting in motion a process eventually resulting in incapacity to work without any further involvement from [the claimant's] work” and “a continuing disease [or deterioration] process contributed to by elements involved in the work.” Macsata v. Stamford, 5 Conn. Workers’ Comp. Rev. Op. 144, 146-47, 377 CRD-7-85 (1988).
Benefits regarding an accidental injury are, therefore, fixed as of the date of workplace injury regardless of when the claimant actually became incapacitated, while benefits concerning injury from workplace disease or deterioration do not accrue until the date of incapacity. Id.; see also J. Asselin, The Connecticut Workers’ Compensation Practice Manual, p. 106. The trial commissioner found that the claimant “suffered a traumatic personal injury on July 16, 1987, which is definitely located as to the time and place and produced identifiable symptoms.” That finding is not challenged on appeal. The trial commissioner, therefore, properly concluded that the claimant’s compensation rate is based on earnings during the twenty-six calendar weeks immediately preceding the week during which the July 16, 1987 injury occurred.
The claimant next challenges the commissioner’s denial of Sec. 31-307b benefits. The commissioner based this denial on his conclusion that the claimant had not recovered from his 1987 injury when he returned to work in December, 1989, but later became totally disabled after working for two months. The commissioner concluded that although the claimant had returned to work, he had not recovered from his July, 1987 injury because he continued to experience symptoms and receive medical treatment for that condition. Because we believe that the commissioner’s conclusion resulted from an incorrect application of the law to the subordinate facts, it cannot stand. See Fair v. Peoples Savings Bank, 207 Conn. 535 (1988).
General Statutes (Rev. to 1987) Sec. 31-307b provides in pertinent part: “If any employee who receives benefits under section 31-307 returns to work after recovery from his injury and subsequently suffers total or partial incapacity caused by a relapse from the recovery from, or a recurrence of, such injury, such employee shall be paid a weekly compensation equal to [the applicable percentage] of his average weekly earnings at the time of the original injury or at the time of his relapse or at the time of the recurrence of such injury . . . .” The purpose of this provision is to allow a claimant, in cases of a relapse or recurrence, that is, a disability due to an old injury, the choice of having benefits calculated at the compensation rate for the original injury, or of having benefits calculated as though the relapse or recurrence was a new injury and basing the compensation rate on the claimant’s earnings during the statutory period immediately preceding the relapse or recurrence. See 12 H. Proc., Pt. 9, 1967 Sess., pp. 4044-45 (remarks of Representative Paul Pawlak, Sr.).
When originally enacted in 1967, Sec. 31-307b benefits were available for a relapse only when a claimant “returns to work after maximum recovery ....” (Emphasis added.) In 1969, the statute was amended to delete the word “maximum.”2 The legislature has, therefore, declined to define the extent of recovery required of a claimant before a relapse or recurrence will permit access to Sec. 31-307b benefits other than to require a return to work. We, therefore, agree with the following observations made by one noted commentator: “[T]here is no case law to guide us with regard to the determination of what point in a claimant’s recuperation he has ‘recovered’ from his injury. It is this writer’s view that the claimant need not make a complete recovery. It is enough if he has recovered sufficiently so that he is no longer eligible for temporary benefits nor is he, at that time, eligible for a specific indemnity award.” J. Asselin, The Connecticut Workers’ Compensation Practice Manual, p. 168.
In this case, it is not disputed that the claimant’s total disability which began on February 16, 1990, was the result of his 1987 injury and that the claimant’s continuation to work had not affected his condition. See footnote 1, supra. Under these circumstances, the claimant’s return to full-time work after receiving temporary total disability benefits entitled him to Sec. 31-307b benefits when he again became totally disabled, notwithstanding the fact that the claimant continued to experience pain and required ongoing medical treatment during the period of his return to work. Accordingly, benefits should have been awarded pursuant to Sec. 31-307b.
We, therefore, affirm the trial commissioner’s calculation of the compensation rate for benefits pursuant to Sec. 31-307. However, we reverse the commissioner’s denial of benefits pursuant to Sec. 31-307b and remand for further proceedings with respect to the amount and duration of the Sec. 31-307b benefits due to incapacity caused by the February 16, 1990 recurrence of the 1987 injury.
Commissioners George A. Waldron and Angelo L. dos Santos concur.
1 While the commissioner did not make such a finding regarding the claimant’s work in 1989-90, his finding that there was no aggravation of the 1987 injury during the 1987-89 period was based on medical reports authored after the claimant again became totally disabled in 1990. This medical evidence attributed the claimant’s present condition to his 1987 injury and indicated that the claimant’s subsequent work activities (i.e., both in 1987-89 and 1989-90) did not affect, aggravate or contribute to his injury. The disability period which began in 1990, therefore, was a recurrence of the 1987 injury. See Colas y. Marriott Food Services, 9 Conn. Workers’ Comp. Rev. Op. 86, 88-89, 939 CRD-7-89-11 (1991). BACK TO TEXT
2 In 1979, Sec. 31-307b was amended to cover a recurrence of an earlier injury. BACK TO TEXT