Flouton v. Can, Inc.

The claimant was represented by George Romania, Esq., 2862 Whitney Avenue, Hamden, CT 06518.

The respondents were represented by Donald Babiyan, Esq., Sizemore Law Offices, Crossroads Corporate Park, 6 Devine Street/First Floor, North Haven, CT 06473.

This Petition for Review from the March 27, 2001 Finding and Award of the Commissioner acting for the Seventh District was heard November 16, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the March 27, 2001 Finding and Award of the Commissioner acting for the Seventh District. In that decision, the trial commissioner determined that the decedent’s estate was entitled to receive permanent partial disability benefits pursuant to § 31-308(d). The respondents contend on appeal that § 31-308(d) does not allow a deceased claimant’s estate (as opposed to a surviving spouse, dependent, or child) to collect permanent partial disability benefits.

The trial commissioner found the following relevant facts. The decedent sustained a compensable dominant right hand injury on December 23, 1996. Subsequently, the decedent’s treating physician assessed a 100% permanent partial disability of the right hand. A physician who conducted an independent medical examination at the request of the respondents assessed a 58% permanent disability of the right hand. Thereafter, on or about September 23, 1999, the decedent notified the Workers’ Compensation Commission, Seventh District, that he had attained maximum medical improvement and that he sought an informal hearing regarding an award of permanent partial disability (also referred to as a “specific” award). The decedent died on September 26, 1999. He had received temporary total disability benefits from December 23, 1996 continuing until his death. The decedent’s father was named the administrator of his estate, and the decedent had no spouse, children of any age, or any statutory dependents under § 31-306 on the date of his death. The trial commissioner concluded that the decedent’s estate was entitled to receive the decedent’s permanency benefits1, citing McCurdy v. State, 227 Conn. 261 (1993).

In support of their appeal, the respondents argue that the class of individuals authorized to receive the vested but unmatured (unaccrued) and unpaid permanency award of a deceased claimant are limited by § 31-308(d) to only his surviving spouse, dependents, or if he has none, to his children of any age. In 1989, the legislature passed P.A. 89-346, which added subsection (e) to § 31-308, which subsection provided as follows:

Subsection (e) was subsequently amended and relettered (d) pursuant to P.A. 93-228 and now reads as follows:

The date of injury rule applies to P.A. 89-346 which became effective October 1, 1989. Cappellino v. Cheshire, 226 Conn. 569, 576 (1993); Roswell v. State, 29 Conn. App. 432 (1992), cert denied, 224 Conn. 922 (1992).

We will now review the case law regarding the ability of estates, as opposed to dependents, to claim unmatured permanent partial disability benefits due to a deceased claimant. A brief introduction to this issue is in order, as it has been succinctly explained by Professor Larson as follows:

In Connecticut, our courts have interpreted this issue in accordance with the above principles. Specifically, in Bassett v. Stratford Lumber Co., 105 Conn. 297 (1926), the court held that the unmatured portion of a permanent partial disability award survived to a decedent’s dependent widow but not to his estate. In that case, an award for permanent partial disability of the decedent’s eye was made for 104 weeks, and the decedent died after receiving only 23 weeks, “leaving a balance of the award which had neither been paid nor matured for eighty-three and four-sevenths weeks.” Id., 298. The decedent’s estate appealed the commissioner’s order that these remaining weeks be paid to the dependent widow. The court reviewed the history of the Workers’ Compensation Act, emphasizing that workers’ compensation benefits are intended for the injured worker and his dependents rather than his estate. “The purpose of the statute is benefit to the dependent, not to the estate of the deceased employee.” Id., 301, quoting Jackson v. Berlin Construction Co., 93 Conn. 155, 157 (1926).

Indeed, the court in Bassett, supra, explained that it did not find in other states’ Workers’ Compensation Acts “any specific provision by which the award may in any contingency become a part of the estate of the injured employee, or the award be obtained by the administrator or executor of his estate for its benefit.” Id., 299 (emphasis added). Furthermore, the court explained that “the employee has no vested right to the unmatured compensation awarded, and hence it cannot pass to his personal representatives [his estate].” Id., 300. “Our Act does not purport, either expressly or by necessary implication, to confer in any case any right to the award upon any person other than the injured employee, or his dependent. Construction of the Act giving the award to other than the employee or his dependents would defeat its primary purpose.” Id. (emphasis added). The court concluded that in our state, the legislative intention was “to confine the employee’s interest to such part of the award as has accrued within his lifetime, and as to such portion of the award as did not mature in the employee’s lifetime there is no survivorship in his estate.” Id., 301 (emphasis added). Thus, the court explained that overruled Forkas v. International Silver Co., 100 Conn. 417 (1924) “in its holding that the unmatured part of such award belongs to the estate of the deceased employee.” Bassett, supra, 305.

The holding in Bassett, supra, that awards which have accrued (matured) during a claimant’s lifetime may become part of the estate, but that unmatured portions do not go to the estate, has been cited with approval in numerous cases, including the following: Cappellino, supra; Morgan v. East Haven, 208 Conn. 576 (1988); Finkelstone v. Bridgeport Brass Co., 144 Conn. 470 (1957); Greenwood v. Luby, 105 Conn. 398 (1926); see also Roswell, supra. In Finkelstone, supra, the court explained that the Act “does not purport, either expressly or by necessary implication, to confer upon any person other than the injured employee or his dependents any right to an award.” Id., 472, citing Bassett, supra. Additionally, the court in Finkelstone, supra, explained: “To be sure, the estate of a deceased employee may, at times, have a right in or to an award. This happens on those occasions when a portion of the compensation awarded or to be awarded the injured employee has accrued during his lifetime and remains unpaid at his death. In such an event, the unpaid portion belongs to his estate.” Id., 472; see also Roswell, supra.

We will now examine the legislative history of Public Act 89-346. Our review of the legislative history reveals that the legislature drafted P.A. 89-346 in response to Morgan, supra, in which the court held that a permanent partial disability award was not payable to the estate (the adult children) of a deceased claimant. In Morgan, a trial commissioner issued a decision which found that the claimant, a uniformed fire fighter, had a compensable 7-433c claim, and awarded a 75% permanent partial disability of his cardiovascular system. The commissioner ruled that the claimant was entitled to 585 weeks of benefits. Subsequently, the claimant died, survived by a wife and two adult children. The respondents continued payments to the wife, until she died approximately one year later, at which time all payments ceased, as there were no dependents.

In Morgan, supra, the estate of the deceased claimant (the adult children) sought the unpaid weeks of the 585 week permanency benefits. The court ruled that benefits under § 7-433c constitute compensation for economic loss, and thus resemble “special” benefits rather than “specific” benefits, “and as such, do not pass to the estate of the recipient.” Id., 585-86. The court further noted that even if the benefits were deemed “specific” benefits, they would not pass to the estate as “any unmatured part of a weekly compensation scheme does not succeed to the estate of the employee.” Id., 587, (emphasis added), citing Bassett, supra. The court further explained: “Had the commuted payment [i.e. a matured amount] been outstanding at the time of [the widow’s] death, there is little dispute that the outstanding balance of the commuted amount would be due and payable to the estate.” Morgan, supra, 587.

In the Senate Proceedings, the discussion regarding P.A. 89-346 indicates that the legislation was intended to benefit adult children of claimants who die leaving no dependents, where an unpaid and unmatured permanency award would otherwise thus abate, such as in Morgan, supra. Specifically, the legislative history reveals that Senator Maloney moved for passage of the bill in the Senate, and remarked as follows: