Laliberte v. United Security

The claimant was represented by Edward T. Dodd, Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., Westgate Office Center, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The respondent Second Injury Fund was represented by Taka Iwashita, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 28, 2000 Finding and Award of the Commissioner acting for the Fifth District was heard March 30, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

GEORGE A. WALDRON, COMMISSIONER. The respondent Second Injury Fund has petitioned for review from the June 28, 2000 Finding and Award of the Commissioner acting for the Fifth District. They contend on appeal that the trier erred by ruling that the claimant continued to be eligible for total disability benefits following his incarceration in a state penitentiary. As our law does not exclude prison inmates from eligibility for total disability benefits under § 31-307, we must affirm the trial commissioner’s decision.

The claimant sustained a compensable injury to his right shoulder on July 18, 1988, while in the employ of the respondent United Security. See August 26, 1991 Finding and Award. Several years prior to this injury, he had sustained another injury to that same shoulder, which had resulted in a 60% permanent partial disability of the right upper extremity. The 1988 injury resulted in continuing pain and instability in the shoulder, and liability for this injury was transferred to the Second Injury Fund on August 1, 1990. The claimant continued to receive total disability benefits through September 27, 1999, when the Fund filed a Form 36 seeking to discontinue such compensation on the ground that the claimant has been incarcerated in a state correctional institution since June 6, 1999, for an unspecified crime. Findings, ¶ 4. Initially, the Form 36 was approved, but that ruling was subsequently vacated following a formal hearing. The trial commissioner examined § 31-307 1 and the Workers’ Compensation Act, and found no exception therein that prevents a claimant from receiving total incapacity benefits solely due to his confinement in a correctional facility. Thus, he ordered the respondents to pay temporary total disability benefits retroactive to September 28, 1999. The Second Injury Fund has taken an appeal from that decision.

Chapter 568 does not address the effect of incarceration on one’s previously established entitlement to temporary total disability benefits, and our research has uncovered no Connecticut appellate caselaw that explores this issue. Thus, our best sources of guidance for this novel question are our sister states, whose collective legal archives house dozens of cases that explore the subject at hand. These decisions express varying viewpoints on the dilemma of whether or not to continue compensating an imprisoned claimant. We discover that many factors affect these rulings, such as the type of benefit that is at stake, the often pressing financial needs of an inmate’s dependents, and the standard institutional taboo against de facto administrative legislation (in the absence of a controlling statute). Moreover, amidst the efforts of courts and agencies to define a general rule, it is not always self-evident which blueprint is best suited to achieve the practical, remedial goals of workers’ compensation. See Gil v. Courthouse One, 239 Conn. 676, 682-83 (1997) (Court should not impose limitations that the remedial Act does not clearly specify); Crawford v. Midwest Steel Co., Inc., 517 So.2d 918 (La. Ct. App. 1987) (Louisiana Act is social legislation designed to ensure that injured worker receives subsistence during period of diminished capacity, for benefit of self, family and state); Bowen v. Smith, 677 A.2d 81 (Md. Ct. App. 1996) (Maryland Act should be construed as liberally in favor of injured workers as its provisions permit in order to effectuate remedial purpose); cf. Wheeler Construction Co. v. Armstrong, ___ S.W.2d ___ (Ark. Ct. App. 2001) (traditional liberal reading of Arkansas Act abandoned as per Ark.Code.Ann § 11-9-704(c)(3), which directs that entire Act be construed strictly).

As noted, the specific character of a benefit often plays a pivotal role in a court’s analysis of post-incarceration entitlement. See Apodaca v. Wyoming, 977 P.2d 56 (Wyo. 1999) (claimant keeps getting temporary total disability benefits during incarceration, but not partial disability benefits for lost earning capacity); Baskerville v. Saunders Oil. Co., Inc., 336 S.E.2d 512 (Va.App. 1985) (imprisonment would not affect loss of earning power due to temporary or permanent total disability, but an employer would be relieved from paying temporary partial disability benefits). The Supreme Court of Ohio, for example, has described temporary total disability compensation available under R.C. 4123.56 as being intended to compensate an employee for lost earnings, and terminable under specific circumstances, such as a physician’s authorization to return to work. State ex. rel. Brown v. Industrial Commission, 623 N.E.2d 55, 57 (Ohio 1993). Permanent total disability, meanwhile, renders a claimant unfit for sustained remunerative employment, and is compensated because a worker has suffered total impairment of his earning capacity. Id., citing R.C. 4123.58.

In State ex. rel. Ashcraft v. Industrial Commission, 517 N.E.2d 533 (1987), the Ohio Court ruled that an incarcerated murder convict was ineligible to continue receiving temporary total disability benefits from a 1978 knee injury, even though he remained totally disabled from a medical perspective, because he had taken action that precluded his returning to his former position of employment. “While a prisoner’s incarceration would not normally be considered a ‘voluntary’ act, one may be presumed to tacitly accept the consequences of his voluntary acts. When a person chooses to violate the law, he, by his own action, subjects himself to the punishment which the state has prescribed for that act.” Id., 535. However, in Brown, supra, the claimant had been declared permanently and totally disabled. The court held that he was incapable of “voluntarily” abandoning a hypothetical work position because such a position could not exist. He had been permanently removed from the work force by reason of his injury. Thus, the subsequent event of his incarceration had no impact on his entitlement to benefits. Brown, supra, 58. (The relevance of this distinction was obviated in Ohio for injuries occurring after August 22, 1986, when R.C. 4123.54(B) took effect, providing that benefits “shall not be payable to a claimant during the period of confinement of the claimant in a penal institution.”)

The Court of Appeals of New Mexico has also drawn a comparable line. During a claimant’s period of incarceration, he may receive that portion of permanency benefits attributed to his physical impairment, but such benefits may not be enhanced by statutory modifiers designed to measure employment capacity, such as the worker’s age, education, job skills, and residual physical capacity. Connick v. County of Bernalillo, 957 P.2d 1153 (N.M.Ct.App. 1998); NMSA 1978, §§ 52-1-24 to -26.4 (1990). With no specific guidance from the New Mexico Workers’ Compensation Act, the court looked at the statute’s overall purpose, calling it “an industry insurance plan to compensate injured workers for loss of earning capacity as determined by the statute,” which attempted to reconcile a pure wage-loss theory of compensation with a pure physical-impairment theory. Id., 1154. Each judge on the three-member Connick panel wrote separately.

The controlling opinion cited Jeffrey v. Hays Plumbing & Heating, 878 P.2d 1009 (N.M.Ct.App. 1994), in which the court had concluded that disability benefits would be denied if a claimant took himself out of the labor market via voluntary conduct unconnected to his injury. “Because claimant’s inability to work resulted from his own conduct, murdering his wife, which is surely ‘unconnected with his injury,’ it has the same effect as . . . the voluntary and unreasonable employment in Jeffrey.” Connick, 1156. Thus, an award beyond the basic impairment level was inappropriate. In contrast, the permanent partial impairment itself remained unchanged by the claimant’s incarceration, and its only remedy was the compensation payable under the Act. This portion of the claim remained payable during incarceration, as the legislature had intended to compensate injured workers for impairments independently of lost wages. A concurrence agreed with the result reached by the main opinion, but advocated legislative adoption of a policy akin to that of the federal Social Security program, which tolls workers’ compensation benefits while individuals are incarcerated on the rationale that the needs of the incarcerated are not as great as the needs of others.2 Id., 1158, citing Hopper v. Schweiker, 596 F.Supp. 689, 692 (M.D.Tenn. 1984). The third opinion concurred with respect to the continuation of base permanency benefits, but dissented from the tolling of the remainder on the ground that incarceration was irrelevant absent a legislatively-mandated forfeiture. The Act clearly set forth criteria for the elimination of the statutory modifiers, i.e., the unreasonable refusal of a job offer that would pay equal or greater wages. Such conditions had not been met. Connick, 1159.

The concern voiced in the Connick dissent is not uncommon. In many states whose workers’ compensation statutes did not provide for the suspension of benefits during incarceration at the time of a litigant’s injury, the courts have shown an unwillingness to create such an exclusion on their own. Aranda v. Industrial Comm. of Arizona, 11 P.3d 1006, 1011-12 (Ariz. 2000) (1997 change in law had substantive effect on benefits, and could not be retroactively applied to claims based upon prior injuries); Crawford, supra, 924 (Louisiana court found confinement in penal institution immaterial to a worker’s right to receive benefits, given workers’ forfeiture of rights to sue their employers in tort in exchange for statutory compensation legislation); Gifford v. Nelson Freightways, 645 A.2d 11 (Me. 1994); State Industrial Ins. System v. Campbell, 862 P.2d 1184, 1186 (Nev. 1993); Forshee & Langley Logging v. Peckham, 788 P.2d 487 (Or. App. 1990), rev. dismissed, 794 P.2d 794; Jackson v. Lee’s Travelers Lodge, Inc., 563 N.W.2d 858 (S.D. 1997) (Court canvassed 21 other states’ decisions on this issue, with ten permitting incarcerated claimants to receive compensation, nine withholding it by statute, and only two restricting post-conviction benefits without express statutory authority3, before it chose to follow the approach of the Ohio courts); Apodaca, supra (Wyoming court focused on contract principles inherent in workers’ compensation law).

In Bowen, supra, the Maryland high court discussed the numerous states that had changed their compensation statutes to restrict prisoners’ rights to receive disability benefits, such as Florida (benefits remain payable only to qualifying dependents under Fla. Stat. Ann. § 440.15(9)), Arkansas (dependents may petition Commission for receipt of workers’ compensation benefits, and in their absence, Department of Corrections may petition for reimbursement of costs of inmate’s incarceration as per Ark.Code Ann. § 11-9-812), Oklahoma (Okla. Stat. Ann. tit. 57, § 549(B) directs benefits to be placed into inmate account, with up to 50% being available to cover costs of incarceration), Michigan (Mich. Comp. Laws Ann. § 418.361), and Oregon (Or. Rev. Stat. § 656.160). Bowen, supra, 86 n.6. The Bowen panel concluded that such policy changes were the province of the legislature, and held that the relevant question remained whether the claimant’s previously adjudicated temporary total disability continued to impair his earning capacity. Id., 85-86. This analysis is now familiar. Though the tones of the various states’ courts often vary, there seems to be a near-consensus that, absent a statute authorizing either the suspension of all benefits during incarceration, or the redirecting of such benefits to an inmate’s dependents or to the state as a means of reimbursing it for the costs of the inmate’s upkeep, an incarcerated employee may continue to receive those benefits for which eligibility does not hinge upon a continued showing of lost earning capacity. We too adopt that perspective here.

In Connecticut, the distinction between benefits for permanent disability and benefits that remedy lost wages is theoretically clear. The former group, including permanent partial impairment awards currently available under § 31-308(b) and scarring awards under § 31-308(c), is not paid as compensation for loss of earning power. Such benefits compensate the injured employee for his incapacity through life because of the loss of or lost function of the body part in question. Morgan v. East Haven, 208 Conn. 576, 584 (1988). Once he reaches maximum medical improvement, an injured worker has the same right to a permanency award as he would have to a statutory award of liquidated damages, independent of any subsequent circumstance such as a change in work capacity or income level, or even death. McCurdy v. State, 227 Conn. 261, 269 (1993) (estate is entitled to balance of unpaid permanency award as long as entitlement is established prior to death). Such rights, therefore, would also survive incarceration.

Lost earnings benefits, including the total incapacity benefits found in § 31-307, § 31-308(a) partial incapacity benefits, and § 31-308a “discretionary” benefits4, are designed to compensate a claimant for his inability to work as a result of his disability. Morgan, supra. Though eligibility for such benefits is also first and foremost a medical question, a necessary component of such eligibility is the demonstration (or assumption) that the claimant is incapable of performing, or unable to find, suitable employment (or equally profitable employment, depending on the benefit sought).5 See, e.g., Brown v. State/Dept. of Mental Health & Addiction, 4053 CRB-2-99-5 (July 27, 2000) (total incapacity is a matter of continuing proof, with evidence needed to show that claimant remains unable to resume any sort of employment as time passes). One might posit that a claimant who was legally unavailable for work due to incarceration would be unable to qualify for any of these categories of compensation. This is likely true with regard to temporary partial disability benefits, as their receipt depends upon one’s readiness and willingness to work at a suitable job, if any should exist. Shimko v. Ferro Corp., 40 Conn. App. 409, 414-15 (1996).

Here, we are concerned with temporary total disability benefits, which the claimant has been receiving since 1988, and alleges that he is still entitled to collect. Under the Act, a worker is entitled to total disability benefits only when his injury results in a total incapacity to work, which is defined as the destruction of an employee’s capacity to work at his customary calling or at any other occupation which he might reasonably follow. Osterlund v. State, 135 Conn. 498, 505 (1949); see also, Krevis v. Bridgeport, 63 Conn. App. 328, 336 (2001); Mulligan v. F. S. Electric, 231 Conn. 529, 531 (1994). A trial commissioner is empowered to decide as a matter of fact whether a claimant is totally disabled. Garcia v. Bridgeport, 3595 CRB-4-97-4 (June 8, 1998). Even though total disability benefits are clearly designed to redress a claimant’s wage loss in the event of his complete inability to work, our statutes and caselaw define them differently than they do temporary partial disability benefits. Unlike the wage differential statutes, i.e., § 31-308(a) and § 31-308a, § 31-307 contains no express requirement that a claimant be available to work in order for total disability benefits to be payable. One’s right to a total disability award may not vest in the same manner as a permanency award; see McCurdy, supra; but it does remain payable as long as one is removed from the workplace and is deemed unfit to pursue any gainful occupation.

We have held that an illegal alien who lacks a valid work permit would still be able to collect total disability benefits from the party in whose employ she was injured, as she “is by definition unable to work in any capacity based on her medical condition.” Dowling v. Slotnik, 3277 CRB-4-96-2 (Feb. 5, 1997), aff’d, 244 Conn. 781 (1998) (Court declined to exclude illegal aliens from protection of Workers’ Compensation Act). Entitlement to § 31-307 benefits would cease when the claimant was again physically able to work. Like an illegal alien, an incarcerated convict is legally prevented from joining the work force. The Act currently provides no basis upon which we could distinguish these two situations for the ad hoc purpose of withholding total disability benefits to prison inmates. We must recognize that our total disability statute is structured to compensate claimants for their lost earning capacity, rather than their actual lost wages.6

No one has demonstrated that, medically speaking, the claimant would be physically able to perform a suitable job should one be made available. We require such a showing in order to discontinue total disability compensation as per § 31-296, which establishes our Form 36 procedure. Torres v. Southern Connecticut Truck & Tire Center, 3144 CRB-3-95-8 (Feb. 5, 1997). As long as the claimant is able to continue meeting his burden of proving that his medical condition leaves him with no earning capacity; Dengler v. Special Attention Health Servs., Inc., 62 Conn. App. 440, 454 (2001); his receipt of such benefits must continue, irrespective of his incarceration. Therefore, we must affirm the trial commissioner’s decision, which correctly applied the law.

In closing, we acknowledge that the payment of workers’ compensation to an inmate of a penal institution may strike some as offensive. This board is not free to follow sentiment, however. We must obey the laws that have been pronounced by our state legislature, and may not read into the Act specific limitations on entitlement based on our own perception of the equities. Trankovich v. Frenish, Inc., 47 Conn. App. 628 (1998). The creation of such limitations is a more appropriate course of action for the legislature. Indeed, it has recently taken a somewhat related action by enacting Admin. Reg. § 18-85a-2, which requires that inmates be charged for the assessed cost of their incarceration as of October 1, 1997.

The trial commissioner’s decision is hereby affirmed.

Commissioner Ernie R. Walker concurs.

JOHN A. MASTROPIETRO, CHAIRMAN, DISSENTING. In the course of its discussion, the majority mentions that temporary total disability benefits are payable under § 31-307 in the event that a claimant’s capacity to work has been completely destroyed, thereby rendering him unable to pursue any occupation which he might reasonably follow. Osterlund v. State, 135 Conn. 498, 505 (1949). The destruction of a claimant’s capacity to work likewise justifies the payment of temporary partial disability benefits under § 31-308(a). Under the temporary partial statute, however, one explicitly acknowledges that the claimant is capable of pursuing some recognizable occupation, thus requiring a lesser measure of compensation. That is not the case with total disability, of course. Despite this important difference, both of these benefits are designed to remedy a claimant’s temporary inability to work due to a compensable injury. Out of practical necessity, this requires that one take into account the effect of the impairment on a claimant’s ability to perform work in the labor marketplace.

In order for a claimant to be either totally or partially disabled under § 31-307 or § 31-308(a), the same threshold condition must exist. The claimant must be impaired by a medically verifiable disability. The trial commissioner, with the help of a doctor or vocational expert, must then answer a second question: is the claimant capable of pursuing some employment, or no employment at all, given the set of jobs that exist and the overall requirements of the employment market? In the case of partial disability, it is presupposed that the claimant is capable of some employment. Therefore, § 31-308(a) focuses very heavily on the “lost earnings” component of the equation, providing a differential between whatever the claimant is now able to earn and the amount that he would have been able to earn had he not been injured. The availability of this benefit is clearly interwoven with the continued presence of a job market.

In cases of total disability, the focus tends to be on the threshold medical component of the equation. Decisions on total disability are commonly made via the medium of the treating physician, who may issue a report declaring the claimant to be totally disabled from employment due to his medical status. In a contested case, the trier will frequently rely on such a report (or choose among conflicting reports) without delving into the specifics of the current job market. In fact, the nature of some injuries can be so severe that, in practice, total disability will be virtually assumed. Thus, it might seem as if total disability is exclusively awarded based solely upon the threshold medical determination that the claimant lacks any practical employment capacity.

What is being ignored in such cases is a presumption that underlies all temporary disability benefits: the existence of a workplace that the claimant would be able to enter, if not for his injury. Like the evening star, this element of total disability is not always visible to the naked eye. It only appears when there is a dispute as to the claimant’s range of marketable skills in light of his injury. See, e.g., Osterlund, supra; Gerena v. Rockbestos Co., 14 Conn. Workers’ Comp. Rev. Op. 394, 1986 CRB-5-94-3 (Oct. 17, 1995); Rose v. Hartford Hospital, 14 Conn. Workers’ Comp. Rev. Op. 249, 1980 CRB-1-94-3 (Aug. 30, 1995). The contours of the actual job market come to the forefront in such cases, and total disability cannot be found without taking a thoughtful inventory of the market’s prospects. Yet, in any total disability case, such a market must be present, even if it is never considered as a practical matter. If one could demonstrate that, regardless of the claimant’s medical condition, no jobs exist that he would be eligible to perform, then an award of total disability benefits would be philosophically groundless. The prerequisite to any award—the ability to earn wages, and therefore be deprived of them—would simply not exist.

Because so few claimants are in a position where the possibility of a job legally available to them anywhere is completely nonexistent, we have not yet had occasion to discuss this exceptional situation. Here, however, we confront such a rare circumstance. During the term of his incarceration, the instant claimant will not be part of the labor market. He cannot possibly work at any job regardless of his medical condition. Perhaps he committed his crime voluntarily, but he has no discretion to rescind his act or abrogate his sentence. The hypothetical workplace necessary to an award of temporary total disability benefits simply does not exist. Therefore, I do not believe that he is eligible for such compensation. This viewpoint regarding temporary total disability benefits is not novel. As the majority observed, the Ohio Supreme Court stated in State ex. rel. Ashcraft v. Industrial Commission, 517 N.E.2d 533 (Ohio 1987) that a claimant who commits a crime and is incarcerated for his offense has voluntarily placed himself in a situation where there is legally no work available for him anywhere. Therefore, it would be meaningless for a doctor to look at any job, including a claimant’s former occupation, and pronounce him “totally disabled” from performing it for physical reasons.

It may also prove enlightening to contrast § 31-307(c) with the remainder of the total disability statute. As stated in n.5 of the majority opinion, this subsection demands that certain grievous injuries be construed as causing total incapacity, irrespective of any further considerations. A claimant who suffers, say, a workplace fall resulting in permanent and complete paralysis of the legs or arms would be entitled to receive total disability compensation even if he subsequently returned to work. This permanent total disability benefit is different in character from the truly temporary benefits contemplated by the remainder of § 31-307, and illustrates the distinction between the simple compensation of a worker for lost wages and an attempt by the legislature to compensate that person for a catastrophic injury regardless of his ability to continue to earn wages. Likewise, a permanency benefit that compensates a person for the loss of or loss of use of a body part should be payable irrespective of a person’s status. A wage loss benefit, on the other hand, should not.

The majority’s difficulty in reconciling Dowling v. Slotnik, 3277 CRB-4-96-2 (Feb. 5, 1997), aff’d, 244 Conn. 781 (1998), with the viewpoint expressed in this dissent is undue. An illegal alien’s situation is different from the case before us, both in terms of the absence of a voluntary act that rescinds one’s preexisting work capacity and the presence of a continuing potential for employment to be obtained somewhere, if not in Connecticut. Further, one’s status as an illegal alien might change at any time by one’s own doing. (The claimant in Dowling, for example, later married a United States citizen and became legally able to work. Id., 816 n.20.) There are also sound public policy reasons why an employer should not be “rewarded” by being spared the expense of disability benefits for an injured illegal worker whom the employer has knowingly hired. No such public policy exists for incarcerated criminals, as they are not likely to be exploited by employers for any reason insofar as they are physically unavailable for employment due to their voluntary commission of a crime. As such, I believe that public policy pointedly disfavors the conferring of temporary total disability benefits upon a prison inmate who, if healthy, would be unable to earn any wages at all.

I therefore dissent from the majority’s resolution of this case. I do concur, however, in their observation that the clearest statement of public policy is that voiced by the legislature.

1 At the time of the claimant’s 1988 compensable injury, § 31-307 provided, “If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of the injury . . . . [S]uch compensation shall not continue longer than the period of total incapacity.” Among the subsequent amendments to this statute was Public Act 93-228, whose extensive modifications to the Workers’ Compensation Act included a limitation to total disability benefits that was codified as § 31-307(e): “Notwithstanding any provision of the general statutes to the contrary, compensation paid to an employee for an employee’s total incapacity shall be reduced while the employee is entitled to receive old age benefits pursuant to the federal Social Security Act. The amount of each reduced workers’ compensation payment shall equal the excess, if any, of the workers’ compensation payment over the old age insurance benefits.” The trial commissioner cited the current version of § 31-307 in his decision, observing that the only exception to total disability payments in this section of the Act is the old age Social Security benefit offset. Though said offset has no potential application to this case, we note for clarification’s sake that, absent legislative intent to the contrary, we would presume that any substantive post-injury changes to § 31-307, i.e., changes that would affect the rights and obligations of the parties, were inapplicable to this matter. Coley v. Camden Associates, Inc., 243 Conn. 311, 316 (1997); Iacomacci v. Trumbull, 209 Conn. 219, 222 (1988). BACK TO TEXT

2 See 20 C.F.R. § 404.468(a) (2001), which states, “No monthly benefits will be paid to any individual for any month any part of which the individual is confined in a jail, prison, or other penal institution or correctional facility for conviction of a felony. This rule applies to disability benefits (§404.315) and child’s benefits based on disability (§404.350) effective with benefits payable for months beginning on or after October 1, 1980. For all other monthly benefits, this rule is effective with benefits payable for months beginning on or after May 1, 1983. However, it applies only to the prisoner; benefit payments to any other person who is entitled on the basis of the prisoner’s wages and self-employment income are payable as though the prisoner were receiving benefits.” BACK TO TEXT

3 The two states are New York and Georgia. See Bilello v. A.J. Eckert Co., 43 A.D.2d 192 (N.Y.1974); Mintz v. Norton Co., 432 S.E.2d 583 (Ga. App. 1993). Unfortunately, neither of their courts provides a reasoned legal explanation as to why it would be proper to suspend workers’ compensation benefits during a claimant’s period of incarceration. The Bilello court appears to simply assume that such a suspension of benefits is natural. The Mintz court relies upon Howard v. Scott Housing Systems, Inc., 350 S.E.2d 27 (Ga. App. 1986), a case in which the claimant failed to challenge the post-incarceration suspension of his benefits, even though Bilello was the only authority cited by the court that viewed incarceration alone as a sufficient justification for the suspension of workers’ compensation benefits. BACK TO TEXT

4 We observe that the current version of § 31-308a (Rev. to 2001) only allows discretionary permanent partial disability benefits to be paid to claimants who are willing and able to perform work in this state, and whose earning capacities have been affected by their injuries in a manner that warrants additional compensation. However, neither of these restrictions was present in the statute at the time of the claimant’s injury, and would thus be inapplicable to the instant case. See Merola v. The Jackson Newspaper, Inc., 3344 CRB-3-96-5 (Oct. 27, 1997) (statutory change restricting duration of discretionary benefits did not apply to injuries that occurred before its effective date). BACK TO TEXT

5 Note, however, § 31-307(c), which mandates that certain permanent injuries, such as total blindness or the loss of both hands, be treated as having caused total incapacity, with benefits accordingly payable. BACK TO TEXT

6 We observe that this approach to temporary total disability is adhered to in some other states. The Michigan Supreme Court has held that temporary total disability benefits must continue being paid to a claimant who is subsequently incarcerated on the ground that their Act compensates the loss of earning capacity, rather than actual lost wages. A total disability award there “is based on the theory of complete inability of the employee to continue his usual vocation; but being in jail could hardly increase his already total inability [to work].” Sims v. R.D. Brooks, Inc., 204 N.W.2d 139, 140-41 (Mich. 1973), quoting Neal v. Stuart Foundry Co., 229 N.W. 595, 597 (Mich. 1930). A similar result was advocated by the Nevada Supreme Court in State Industrial Ins. System v. Campbell, supra. As discussed above, however, Ohio construes temporary total disability to be compensation for lost earnings rather than for impairment of earning capacity, and therefore has held that it is not payable during a claimant’s term of incarceration. See State ex. rel. Brown v. Industrial Commission, supra, 57. BACK TO TEXT