State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Rayhall v. Akim Co., Inc.

CASE NO. 4321 CRB-2-00-12



NOVEMBER 5, 2001













The claimant was represented by Howard B. Schiller, Esq., 55 Church Street, P. O. Box 699, Willimantic, CT 06226.

The respondents were represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

These Petitions for Review from the December 4, 2000 Finding and Award of the Commissioner acting for the Second District were heard July 20, 2001 before a Compensation Review Board panel consisting of Commissioners George A. Waldron, Ernie R. Walker and James J. Metro.


GEORGE A. WALDRON, COMMISSIONER. Both the claimant and the respondents have petitioned for review from the December 4, 2000 Finding and Award of the Commissioner acting for the Second District. The claimant raises a constitutional objection to the offset provisions of § 31-307(e), while the respondents challenge the trier’s conclusion that the claimant was entitled to temporary partial disability benefits after one of his two injured legs reached maximum medical improvement. We lack jurisdiction to consider the gravamen of the claimant’s appeal, but we affirm the trial commissioner on the ground raised by the respondents.

At the outset, we note that the parties provided the trier with a set of stipulated facts rather than leaving it to him to make factual findings. Joint Exhibit 1. No other evidence or testimony was taken into the record. As such, this board need not adhere to the prescribed standard of deference to the trial commissioner’s findings of fact that we normally apply, for we are no less able than he was to gauge the legal implications of the parties’ stipulated facts. Pietraroia v. Northeast Utilities, 254 Conn. 60, 75 (2000); Cimmino v. Hospital of St. Raphael, 4230 CRB-3-00-5 (Sept. 13, 2001).

The stipulation provides that the claimant suffered a compensable injury to his knees on October 4, 1993, when a jack snapped and its handle hit him in the legs. He was widowed with three adult children at that time. Soon afterward, he married a woman with three young children, all of whom he adopted in 1996. Because the claimant was single at the time of his injury, his weekly compensation rate reflects a filing status of “single,” rather than the head of a five-member household. See, e.g., Wislocki v. Prospect, 4226 CRB-5-00-4 (July 5, 2001) (obligations under § 31-306 C.G.S. of employer to his employee’s dependents are fixed based on dependency status as of date of injury). The applicable base compensation rate is $382.44 per week. After his injury, the claimant returned to work at the same salary, which proceeded to increase to $735 per week. He became eligible for Social Security benefits in April 1996, and began receiving benefits for his wife and three adopted children as well. This amount was approximately $836 on behalf of the claimant himself, and another $836 for his four family members combined, totaling $1,672 per month.

Despite a limitation on his ability to stand subsequent to the accident, the claimant had managed to continue in full-time employment as a plant manager for the respondent prior to April 1996. However, his qualification for additional income from the Social Security Administration led him to agree with management that he would file for early retirement benefits, and continue with his managerial duties at a reduced salary while the respondent searched for his workplace successor. The claimant ultimately remained at his reduced-salary job for one year, during which time he trained his replacement. He had planned to work until age 70, as Akim had no retirement plan for which he was eligible. Because of his physical inability to continue working as the plant manager indefinitely, the claimant intended to find a job with another employer. His knees began to deteriorate further, unfortunately, which necessitated knee replacement surgeries. These complications left the claimant unable to remain in the labor force.

The claimant received temporary total disability benefits from March 17, 1995 to March 26, 1995; temporary partial benefits from March 17, 1998 to April 11, 1999, and further temporary total benefits from October 26, 1999 forward. He reached maximum medical improvement on his right leg on March 5, 1999, but his left leg has yet to reach that plateau. Though the claimant was in fact partially disabled through October 25, 1999, he began receiving federal benefits as of April 16, 1996 at his full rate, which generated an overpayment of $8,621.74. He was unaware that he needed to disclose the retirement benefit as per § 31-307(e)1, which by its terms entitled the respondents to a $1,002 monthly offset. The total overpayment in this matter was $13,440.10 (including a second offset for corrected filing status), which was applied against the partial disability benefits from April 12, 1999 through October 25, 1999.

The claimant acknowledges the plain-language requirements of § 31-307(e), but contends that the statute is unconstitutional because it violates the equal protection clause of the United States Constitution. Due to the statutorily-circumscribed authority of this Commission, issues concerning the constitutionality of statutes are not justiciable by either the trial commissioner or this board. See Giaimo v. New Haven, 257 Conn. 481, 490 n.8 (2001); Fish v. Caldor, Inc., 3840 CRB-7-98-6 (May 11, 1999). We therefore decline to discuss them here. The respondents, meanwhile, contend that the claimant’s benefits from March 5, 1999 through October 26, 1999 should properly have been characterized as permanent partial disability because his right leg had reached maximum medical improvement, though said permanency benefits were permissibly suspended in favor of total disability benefits after surgery on the left leg occurred on October 26, 1999. On that issue, the trial commissioner ruled that the claimant had remained partially incapacitated because of his left leg condition, which worsened to total disability following surgery. The trier held that he was entitled to temporary partial disability benefits for the March-October time period pursuant to § 31-308(a) C.G.S. That ruling is now before us on appeal.

Under § 31-307 and § 31-308(a), respectively, a claimant may be entitled to compensation for temporary total or temporary partial incapacity. The former benefit is payable to anyone who is shown to be totally disabled from all employment, while the latter is payable if an actual wage loss has resulted from the claimant’s partial incapacity. Section 31-308(b), meanwhile, entitles an injured worker to a fixed amount of benefits based on the permanent loss of or loss of use of a specified body part. This benefit is paid “in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation.” In order to collect a permanency award, a claimant’s injured body part must first reach maximum medical improvement before the degree of loss can be assessed. McCurdy v. State, 227 Conn. 261, 268 (1993). Different types of benefits, such as specific indemnity and temporary total disability, are not concurrently payable for injuries arising out of a single compensable incident. Paternostro v. Edward Coon Co., 217 Conn. 42 (1991). Section 31-295(c) directs that if an employee is entitled to receive compensation for permanent disability to an injured member under § 31-308(b), “the compensation shall be paid to him beginning not later than thirty days following the date of the maximum improvement of the member or members and, if the compensation payments are not so paid, the employer shall . . . pay interest at the rate of ten per cent per annum on such sum or sums . . . .” Such an award is also payable to the estate of a deceased claimant, as it “has all the earmarks of a statutory award of liquidated damages for the loss” of a body part or its use. McCurdy, supra, 269, quoting Forkas v. International Silver Co., 100 Conn. 417, 421-22 (1924).

It is the respondents’ position on appeal that the “in lieu of all other payments for compensation” language of § 31-308(b) read together with the thirty-day-or-less payment directive of § 31-295(c) demands that specific indemnity payments supplant temporary partial disability payments once a claimant reaches maximum medical improvement on any body part, i.e., when nothing may be done to further heal or improve. They distinguish § 31-308(a) benefits from temporary total disability benefits, which under established caselaw may continue to be paid once a claimant reaches maximum improvement. McCurdy, supra, 268-69 (worker has right to permanency award once maximum improvement reached, but commissioner has discretion to continue total disability benefits if such status continues); Osterlund v. State, 129 Conn. 591, 597-600 (1943). Though we concur in the observation that total incapacity benefits are specifically made payable “in addition to” permanent partial impairment benefits, while temporary partial disability benefits are not, the instant situation involves two injured body parts with two separate timetables for reaching maximum improvement. This complicates our analysis in light of the specific language of § 31-295(c), which, as the claimant points out, states that compensation shall be paid within thirty days of maximum improvement of the injured “member or members.” The claimant plausibly reads these words to mean that a respondent must begin paying permanency benefits within thirty days after all injured members reach permanency, rather than each injured member. Otherwise, he posits that the use of the words “or members” would be superfluous.

Our courts have long been reluctant to construe any statute so as to render a part thereof meaningless. Giaimo v. New Haven, 257 Conn. 481, 495 (2001); Biasetti v. Stamford, 250 Conn. 65, 81 (1999). “[T]here is a presumption of purpose behind every sentence, clause or phrase in a legislative enactment.” Id., quoting Union Trust Co. v. Heggelund, 219 Conn. 620, 625-26 (1991). The phrase “member or members” would carry no additional meaning from the simple use of the word “member” if we were to interpret it as a mere clarification that § 31-295(c) applies to cases in which a claimant has suffered permanent loss of or loss of use of more than one body part. Where a claimant has sustained multiple injuries from the same incident, permanency benefits for separate body parts must be paid consecutively rather than concurrently. Thus, if a claimant reached maximum medical improvement on his right arm while he was still receiving permanency benefits for his left arm, he would not be able to begin collecting benefits for the right arm until the left arm payments had expired, regardless of the thirty-day provision in § 31-295(c). Though this would not be an issue in every case involving multiple injuries, it would limit the utility of the statute in many such cases.

The only manner in which the “member or members” phrase can be held to carry any substantive impact on a consistent basis is to apply it to situations in which a claimant has injured multiple body parts, and to construe it as giving the claimant the right to make a choice. The claimant may elect to begin receiving payment of permanency benefits at any time after one of his injured body parts reaches maximum improvement (thereby vesting his right to a permanency award for that body part as per McCurdy, supra), or he may opt to wait until all of his injured members reach maximum improvement before payment of permanency benefits commences in lieu of temporary partial disability compensation. Should the claimant elect to begin receiving permanency, and should such benefits run out before all other body parts have reached maximum improvement, the claimant would then be eligible to return to temporary partial disability if the circumstances warranted it factually. The provision regarding the payment of interest on permanency awards should only be read to apply where a claimant has requested such payment, but has not begun receiving it within thirty days of reaching maximum medical improvement. It does not force a claimant to begin receiving such benefits in lieu of all others payable (such as total disability has long been). Thus, we adopt the construction of the statute urged here by the claimant, and hold that the benefits he received from March 5, 1999 to October 25, 1999 were properly regarded as temporary partial disability benefits.

The trial commissioner’s decision is hereby affirmed.

Commissioner Ernie R. Walker concurs.

JAMES J. METRO, COMMISSIONER, DISSENTING. I am not persuaded that the phrase “member or members” in § 31-295(c) must be read as having such a pronounced impact on the interplay between the payment of temporary partial disability benefits and permanent partial disability benefits. The alternative reading that was discussed and dismissed by the majority does not render that language meaningless, even if the thirty-day payment provision would not have a practical impact on every separate permanency award in those cases where maximum medical improvement was reached for more than one body part at approximately the same time. To me, more significant guidance on this matter is provided by the express language of § 31-308(b), which makes permanency benefits payable “in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation.”

Despite the arguments of the claimant, under our caselaw, temporary incapacity benefits, whether they be total or partial, and permanent incapacity benefits both serve the same remedial purpose, even if they compensate an employee for distinct types of loss. See, e.g., Levanti v. Dow Chemical Co., 218 Conn. 9, 13-15 (1991) (losses embodied by scheduled benefits must have been presumed to affect earning capacity); Panico v. Sperry Engineering Co., 113 Conn. 707, 715 (1931) (temporary incapacity and specific indemnity payments for an injured arm should not combine to exceed the amount paid for statutorily-prescribed total incapacity benefits for loss of two arms). Temporary total disability benefits may continue to be paid after the establishment of entitlement to permanent partial disability benefits because the statute expressly permits it. Cases such as Cappellino v. Cheshire, 226 Conn. 569 (1993) and Paternostro, supra, do not purport to declare that the same option is available where temporary partial disability benefits are concerned. Further, in the event of multiple injured body parts, the majority’s observation regarding the availability of temporary partial disability benefits following the exhaustion of a specific award for one body part is still true. If, as is the case here, the claimant has one leg that has not reached maximum improvement, and one leg that has, when the permanency benefits for the stabilized leg have run their course, the claimant would be eligible to return to temporary partial disability benefits in light of the fact that the second leg still has not reached maximum improvement. No injustice is done by this method of providing compensation, and it is more consistent with the language of the Workers’ Compensation Act and with prior caselaw. Therefore, I dissent from the opinion of the majority.

1 Section 31-307(e) states, “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 insurance 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.” BACK TO TEXT

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