Sec. 31-308a. Additional benefits for partial permanent disability. (a) In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partial permanent disability equal to seventy-five per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury, after such wages have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, and the weekly amount which such employee will probably be able to earn thereafter, after such amount has been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age, 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. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury. The duration of such additional compensation shall be determined upon a similar basis by the commissioner, but in no event shall the duration of such additional compensation exceed the lesser of (1) the duration of the employee’s permanent partial disability benefits, or (2) five hundred twenty weeks. Additional benefits provided under this section shall be available only to employees who are willing and able to perform work in this state.
(b) Notwithstanding the provisions of subsection (a) of this section, additional benefits provided under this section shall be available only when the nature of the injury and its effect on the earning capacity of an employee warrant additional compensation.
(1967, P.A. 842, S. 25; 1969, P.A. 696, S. 8; P.A. 79-376, S. 76; June Sp. Sess. P.A. 91-12, S. 52; P.A. 93-228, S. 20, 35.)
History: 1969 act changed amount of additional compensation benefits from the difference between employee’s average weekly benefits and his probable weekly earnings after injury to two-thirds of that difference; P.A. 79-376 used wages currently earned by employee in comparable position to that of injured employee prior to injury rather than injured employee’s average weekly wages as basis of computation; June Sp. Sess. P.A. 91-12 changed the additional compensation allowed under this section to 80% of the difference between wages currently earned in a comparable position prior to injury, reduced by deductions for federal taxes and FICA, and the weekly amount earned after the injury, reduced by deductions for federal tax and FICA, but not more than 100% of the average production wage; P.A. 93-228 designated existing language as Subsec. (a) and decreased amount of additional benefits available for permanent partial disability from 80% to 75% of difference between wages currently earned in a comparable position prior to injury, less deductions for state and federal taxes and FICA, and weekly amount earned after injury, less such deductions, and to place limitations on availability and duration of such additional benefits, and added Subsec. (b) to condition availability of additional benefits on nature of injury and its effect on employee’s earning capacity, effective July 1, 1993.
Cited. 223 C. 376; 231 C. 287; 237 C. 71. It appears that in calculating benefits, legislature was not concerned with a broad all-inclusive definition of “earnings”, but intended the formula to reflect the difference between actual wages claimant had earned from his employer before his injury and wages claimant would be able to earn after his injury. 270 C. 1. Because legislature has explicitly provided for an offset mechanism under either Sec. 5-169(g), which governs Tier I retirees, or Sec. 5-192p(d), which governs Tier II retirees, benefits awarded under this section need not be offset by claimant’s receipt of state disability retirement benefits. Id., 32. When a prior disability is a substantial cause of the loss of earning capacity after a second disability, commissioner may consider both disability awards in determining entitlement to and duration of awards pursuant to section. 283 C. 257.
Cited. 40 CA 562; 42 CA 147. Statute does not specifically require claimant to seek employment to qualify for a discretionary award of benefits. 54 CA 289. Court accepts established policy of board and declines to adopt the “whole man” theory. Id., 296. Exclusion of regular retirement pension and Social Security benefits from calculation of award of additional benefits under statute proper and not violative of public policy by allowing double recovery. 82 CA 505.
Use of word “are” evinces legislature’s intent that claimant must presently fulfill “willing and able” requirement to receive benefits. 72 CA 611.
Expressly restricts commissioner’s authority to compensate even those employees who meet criteria in Subsec. (a). 72 CA 611. A specific medical assessment is not necessary under Subsec. to demonstrate reduced earning capacity and, in present case, there was sufficient evidence to support claim of diminution of earning capacity. 108 CA 370.