Flanagan v. Waterbury Hospital

The claimant was not represented by counsel and neither appeared nor filed a brief in proceedings before the Compensation Review Board.

The respondent was represented by James T. Baldwin, Esq., Cotter, Cotter and Sohon, P.C., P.O. Box 5660, Bayview Station, Bridgeport, CT 06610.

This Petition for Review from the October 21, 1992 Finding and Award of the Commissioner for the Fifth District was heard March 11, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE FRANKL, CHAIRMAN. The respondent challenges the commissioner’s award of scarring benefits. On appeal, the respondent contends that the award was improper because (1) the claimant’s scar was related to a compensable back injury and therefore comes within the “spinal surgery” exclusion of General Statutes (Rev. to 1989) Sec. 31-308(d), and (2) the claimant’s scar was not “significant” and therefore not the proper subject of an award of compensation benefits pursuant to Sec. 31-308(d). We affirm the trial commissioner.1

The claimant injured her lumbar spine while in the course of her employment at Waterbury Hospital. At the time, the claimant was pregnant. The claimant’s pregnancy was complicated by severe symptomology from that injury, necessitating a primary low transverse cesarean section. As a result of that surgery, the claimant was left with a six inch horizontal faint whiteline scar approximately one inch above her pubic area. The trial commissioner awarded six weeks of benefits, pursuant to Sec. 31-308(d), as compensation for permanent and significant scarring. This appeal followed.

Section 31-308(d) grants broad authority to a commissioner to award benefits “for any permanent significant disfigurement of, or permanent significant scar on, any part of the body . . . .” The statute further provides for a limited exclusion “for any scar resulting from an inguinal hernia operation or any spinal surgery.” (Emphasis added.) This statutory exception to the general rule must be strictly construed; its language is not to be extended beyond its evident intent. See Kulis v. Moll, 172 Conn. 104, 109-10 (1976). Thus, while the spinal surgery exception is not limited to scars which result from back incisions; see Stitzer v. Rinaldi’s Restaurant, 211 Conn. 116 (1989); we reject the respondent’s attempt to extend this statutory exclusion to all surgery arising out of a back or spinal injury. Surgery to accomplish a birth by cesarean section is not transformed into “spinal surgery” simply because it is undertaken as a result of complications arising out of a compensable back injury. A cesarean section does not involve surgery on the spinal column and, therefore, is not “spinal surgery” within the meaning of Sec. 31-308(d). See id., 118-19.

A scarring award is proper only if the scar is “permanent” and “significant”. General Statutes Sec. 31-308(d). “In order for a scar or disfigurement to be ‘significant’ it must be of such a character that it substantially detracts from the appearance of the person disfigured or scarred.” Administrative Regulation Sec. 31-308(d)-1; see also Dombrowski v. Fafnir Bearing Co., 148 Conn. 87 (1961); Morro v. UTC/Sikorsky Aircraft Div., 4 Conn. Workers’ Comp. Rev. Op. 10, 347 CRD-4-84 (1987).

We do not agree with the respondent’s contention that this six inch scar is not significant as a matter of law. Such a scar, even if located on a body part not often exposed to view, can be of such a character that it substantially detracts from the appearance of the person scarred. The claimant’s scar is certainly not the type of inconspicuous scarring at issue in Dombrowski v. Fafnir Bearing Co., supra.

Furthermore, the commissioner’s factual findings amply support his award of benefits. “What constitutes a permanent significant [scar or] disfigurement is, in large measure, a factual determination. For that purpose we cannot substitute our judgment for the trier’s.” Vargas v. Gravure, 11 Conn. Workers’ Comp. Rev. Op. 28, 30, 1253 CRD-3-91-7 (1993), citing Morro v. UTC/Sikorsky Aircraft Div., supra. In the present case, the commissioner properly took into consideration the claimant’s age, as well as the location, size, description and visibility of the scar when determining whether the scar was significant. See Administrative Regulation Sec. 31-308(d)-1. “As there was evidence before the commissioner to support the conclusions he reached, we cannot overturn those conclusions.” Vargas v. Gravure, supra, 30, citing Bailey v. Mitchell, 113 Conn. 721 (1931).

We, therefore, affirm the trial commissioner and deny the appeal.

Additionally, pursuant to Sec. 31-301c(b) we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.

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

1 Both before the trial commissioner and at oral argument before this tribunal, the respondent expressly waived any challenge to the procedure used by the trial commissioner in evaluating the claimant’s scar. The trial commissioner relied on a written description of the scar made by another commissioner as part of an informal disfigurement evaluation (Form No. 47-79). At the hearing before the commissioner, the claimant supplemented that written description with testimony regarding the location of the scar. The trial commissioner did not view the scar, as Administrative Regulation See. 31-308(d)-1 seems to require. Because the respondent does not challenge the commissioner’s failure to view the subject scar, we will not comment further on the procedure used by the trial commissioner in this case. BACK TO TEXT