McClain v. Marketstar Corporation

CASE NO. 5604 CRB-4-10-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 25, 2011

DONNELL McCLAIN

CLAIMANT-APPELLEE

v.

MARKETSTAR CORPORATION

EMPLOYER

and

XL INSURANCE AMERICA, INC.

INSURER

and

GALLAGHER BASSETT SERVICES

ADMINISTRATOR

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Michael O’Connor, Esq., Williams, Walsh & O’Connor, LLC, 37 Broadway, First Floor, North Haven, CT 06473-2304.

The respondents were represented by Michael W. Vernile, Esq., Montstream & May, LLP, Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the November 1, 2010 Finding and Award of the Commissioner acting for the Fourth District was heard May 27, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Christine L. Engel.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents in this matter have appealed from the award of § 31-308(c) C.G.S. benefits to the claimant. They believe that the nature of the scarring which the claimant sustained would not support an award of benefits based on said statute. The claimant suffered scars to her neck, shoulder, wrist and arm. We agree that based on the record the award herein cannot be affirmed. We reverse the finding of compensability for scars the claimant suffered on the arm, wrist and shoulder. We remand this matter for a new finding as to the appropriate compensation the claimant should receive for the scars she sustained on her neck.

The trial commissioner found the following facts in his Finding and Award. The parties acknowledge the claimant was injured in a compensable motor vehicle accident on April 30, 2009. The claimant sustained the following injuries. rib fractures, scapular fracture, abrasions on the left side of her face, arm, and forearm, and pneumothorax. The claimant was the sole witness at the formal hearing. She testified that she is employed by the respondent Markerstar and her job duties involve getting information from a specific cell phone carrier and transmitting it by email to other team members. Additionally, her duties require her to train employees of T-Mobile, Sprint, AT&T and Verizon. The claimant testified the scars on her arms are distracting to trainees when she is involved in this function. She said customers and representatives question what happened, causing a distraction because they are focused on her arm rather than the training materials. The claimant said her job responsibilities have increased since the 2009 accident and her pay was never decreased following the accident. Furthermore, she has experienced a pay increase from about $18 per hour at the time of the incident to about $20 per hour now.

Based on this record the trial commissioner concluded the claimant sustained 43 inches of scars during her April 30, 2009 work-related injury; including 2 inches along her neck, 3 inches along her left shoulder, 2 inches along her wrist, and a 4 inch by 9 inch scar involving puckered skin on her left arm. He further concluded the claimant’s scars on her neck, shoulder, wrist, and left arm handicap her in the performance of her work as they were an impediment to her trainees keeping them from concentrating on her training. The trial commissioner determined the claimant was entitled to an award under § 31-308(c)(B) C.G.S. for her scars on the neck, shoulder, wrist and left arm. He awarded the claimant 65 weeks of benefits based upon her compensation rate of $500.41.

The respondents filed a Motion to Correct, which was denied by the trial commissioner. They have pursued this appeal, which rests on their belief that the facts herein do not justify a § 31-308(c) C.G.S. award for the scars on the claimant’s arm, shoulder or wrist. Based on the record herein, we agree. We do not believe the evidence herein provides sufficient grounds to conclude those scars were a material impediment to the claimant’s earning capacity and the award was based solely on the claimant’s subjective opinions.

It is a maxim of our jurisprudence that “[T]he workers’ compensation system in Connecticut is derived exclusively from statute. . . . A commissioner may exercise jurisdiction to hear a claim only under the precise circumstances and in the manner particularly prescribed by the enabling legislation.”. Cantoni v. Xerox Corp., 251 Conn. 153, 160 (1999), citing Discuillo v. Stone & Webster, 242 Conn. 570, 576 (1997). We must follow the direction of the General Assembly in applying their legislation. “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . .”. Cogan v. Chase Manhattan, 276 Conn. 1, 7 (2005). We may not substitute our judgment in such matters for that of our elected officials. “Because of the statutory nature of our workers’ compensation system, policy determinations as to what injuries are compensable and what jurisdictional limitations apply thereto are for the legislature, not the judiciary or the board, to make.” Stickney v. Sunlight Construction, Inc., 248 Conn. 754, 761 (1999).

The relevant statute herein is § 31-308(c), which states in part:

(c) In addition to compensation for total or partial incapacity or for a specific loss of a member or use of the function of a member of the body, the commissioner, not earlier than one year from the date of the injury and not later than two years from the date of the injury or the surgery date of the injury, may award compensation equal to seventy-five per cent of the average weekly earnings of the injured employee, calculated pursuant to section 31-310, after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act made from such employee’s total wages received during the period of calculation of the employee’s average weekly wage pursuant to said section 31-310, but not more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309, for up to two hundred eight weeks, for any permanent significant disfigurement of, or permanent significant scar on, (A) the face, head or neck, or (B) on any other area of the body which handicaps the employee in obtaining or continuing to work. (Emphasis added.)

The statute herein clearly provides that the claimant is entitled to an award for any permanent significant scar she has sustained to her face, head or neck. The Finding and Award however, granted the claimant an award for the scar on her arm. The statute does not permit the Commission to grant an award for a scar elsewhere on a claimant’s body unless it impairs his or her ability to find work or perform work. We discussed exactly this circumstance in Atkinson v. United Illuminating Company, 5064 CRB-4-06-3 (April 19, 2007). We noted in Atkinson that our inquiry was limited to application of the “plain meaning” of the text of the statute in accordance with § 1-2z C.G.S. Based on that standard, we reached the following conclusion.

Our examination of the text of § 31-308(c) C.G.S. and the text of Public Act 93-228, which limited the terms of recovery in scarring awards, is supportive of the trial commissioner’s decision. The claimant must produce evidence at the formal hearing that the scars suffered in the compensable accident have hindered his work performance or impeded a job search or limited an identifiable job opportunity. The claimant’s evidence was based on a subjective belief that the scars would prove an impediment to him at some unspecified point in the future.

Id.

We find no material difference between the fact pattern herein and the fact pattern in Atkinson where we upheld a finding that the scars were not compensable. In both cases the claimant sustained significant scars which were not on the face, head or neck. In neither case had the claimant undergone a loss in income or job responsibilities subsequent to suffering the scar. In Atkinson the claimant argued the scars could impair his future employment opportunities. In the present case the claimant argued that while she had not suffered a loss of income or responsibilities, her trainees appeared to be distracted by the scar. We find the precedent in Atkinson controlling. We cannot uphold a scarring claim when the sole basis presented by the claimant for a scarring award is his or her own subjective fear as to the impact it may have on their employment.

The claimant in the present case had not been unable to find work. She had been able to continue to work at her job and had received raises. The record does not demonstrate the claimant was objectively handicapped in her ability to perform her job for the respondent. The record does not reflect the claimant was impeded from obtaining any desired job opportunities, responsibilities or assignments. The sole basis for the trial commissioner’s findings was the claimant’s uncorroborated subjective opinion that other people were distracted by the scar. In DiNuzzo v. Dan Perkins Chevrolet Geo. Inc., 294 Conn. 132 (2009) the Supreme Court pointed out “[t]he right of a claimant to compensation must be based [on] more than speculation and conjecture.”. Id., 143. While as an appellate body we are deferential to the finder of fact, Daniels v. Alander, 268 Conn. 320, 330 (2004) we find this is a circumstance where based on the statutory limitations on awards the evidence presented does not support the ultimate result. See Caraballo v. Specialty Foods Group, Inc./Mosey’s Inc., 5082 CRB-1-06-4 (July 3, 2007) and Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-1. (November 19, 2007).

We do affirm the trial commissioner’s finding as to the scar on the claimant’s neck. The statute herein makes such scars compensable without an affirmative finding that the scar impairs one’s employment. In finding the claimant’s neck scar “significant” we believe we must defer to the fact-finding prerogative of the trial commissioner. Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008). We remand this matter to the trial commissioner to ascertain the appropriate level of compensation due the claimant for the neck scar. In regards to the remainder of the Finding and Award we herein vacate the relief ordered and uphold the appeal.

Commissioners Scott A. Barton and Christine L. Engel concur in this opinion.