Chialastri v. Angelo’s Trucking

The claimant was represented by Lawrence J. Costantini, Jr. Esq., 64 Cherry St., Milford, CT 06460.

The respondents were represented by James Powers, Esq., Law Offices of Larry H. Lewis, 639 Research Pkwy., Meriden, CT 06450.

This Petition for Review from the January 11, 1996 Findings of Facts and Award of the Commissioner acting for the Eighth District was heard November 1, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the January 11, 1996 Findings of Facts and Award of the Commissioner acting for the Eighth District. He argues on appeal that the commissioner erred in the number of weeks of permanent partial disability benefits he awarded the claimant for his brain injury. We affirm the trial commissioner’s decision.

The claimant was employed by the respondent employer on December 19, 1990, when he suffered a brain injury after being struck by a car. The injury was found to be compensable in a Finding and Award issued on September 8, 1992. Dr. Berv performed an examination of the claimant at the request of a previous commissioner, and assigned the claimant a 28 percent permanent partial disability of the brain. The claimant suffered from many symptoms, including impaired memory and concentration, post-traumatic stress disorder, and a seizure disorder. The trial commissioner found in accordance with Dr. Berv’s opinion. Pursuant to § 31-308(d), he awarded the claimant 163.8 weeks of compensation for a 28% permanent partial disability of the brain. The claimant has appealed from that decision.

At the time of the claimant’s injury, the Workers’ Compensation Act did not provide a specific number of weeks of compensation benefits for a brain disability in § 31-308(b) C.G.S. Instead, § 31-308(d) allowed a commissioner to 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 function 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.” In 1993, this statute was repealed. However, brain injuries were added to the schedule of injuries listed in § 31-308(b), with a maximum of 520 weeks of compensation payable for a 100% complete and permanent loss of use of the brain. 520 weeks was also made the maximum amount of benefits payable for any permanent partial disability under § 31-308; previously, it had been 780 weeks.

The claimant deduced that the trial commissioner’s calculation of 163.8 weeks of compensation payable for his 28% brain disability had to have been based on a scale with a maximum of 585 weeks of compensation. He argues that this was improper, however, because in 1993 the legislature decided that compensation for a brain injury should be based on the maximum amount of compensation available, 520 weeks. As the maximum amount of compensation available at the time of the claimant’s injury was 780 weeks, he contends that the commissioner should have taken 28% of that figure and awarded him 218.4 weeks of benefits. We do not agree.

Despite the claimant’s arguments, P.A. 93-228 § 19 is not applicable to this case in any way. A statute generally applies retroactively only if the legislature expresses such an intent. Sherry H. v. Probate Court, 177 Conn. 93, 100 (1979). Section 55-3 C.G.S. even states that a statute imposing a new obligation on a person shall not have retrospective effect. Although this rule is not normally applied to procedural statutes or statutes that merely clarify existing law, the changes to § 31-308 in 1993 clearly had a substantive effect. See Sherry H., supra; Schurgast v. Schumann, 156 Conn. 471, 487 (1968). They removed a commissioner’s discretion to award benefits for the loss of use of unscheduled organs, added some organs to the statutory schedule that had not been there before, and reduced benefits by approximately one-third in most cases. Thus, claimants injured before July 1, 1993 were able to collect benefits for unscheduled injuries, while claimants injured on or after that date could not. This sort of impact is the paradigm of a substantive change in the law.

As for the argument that the commissioner abused his discretion in basing his award on 585 weeks of benefits rather than 780, we have no basis on review to question his decision to award 163.8 weeks of benefits. Section 31-308(d) merely gave the commissioner the discretion to make an award “as he deems just;” it did not prescribe the amount or length of that award, nor did it make such an award mandatory. See Shimko v. Ferro Corporation, 13 Conn. Workers’ Comp. Rev. Op. 255, 258, 1744 CRB-7-93-5 (April 18, 1995), reversed on other grounds, 40 Conn. App. 409 (1996). The trier noted in his finding that the claimant began working as a truck driver again in 1993, and stated that he took the statutory factors into account in making his decision. See Felia v. Westport, 214 Conn. 181, 187 (1990) (commissioner may take into account plaintiff’s earning capacity in making § 31-308(d) award). We have no reason to suspect that this award was made arbitrarily or capriciously simply because the commissioner did not base his calculation on the maximum allowable benefit at the time of the injury.