CASE NO. 856 CRD-1-89-4Workers’ Compensation Commission
DECEMBER 14, 1990
The claimant was represented by Jason Dodge, Esq., Pomeranz, Drayton Stabnick.
The respondents were represented by David Kelly, Esq., Jeremy Booty, Esq., both of Montstream and May.
The Second Injury and Compensation Assurance Fund was represented at the trial level by Robert Murphy, Esq. and Brewster Blackall, Esq., Assistant Attorney General. The Fund did not participate in the appellate proceedings as they withdrew their appeal.
This Petition for Review from the April 7, 1989 Finding and Award of the Commissioner for the First District was heard April 27, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Thomas White, Jr., and James Metro.
OPINION
JOHN ARCUDI, CHAIRMAN.
Respondents’ appeal raises two questions (1) Whether Hepatitis Type B contracted by claimant during her employment as a dental hygienist was an occupational disease peculiar to that employment and (2) Since claimant experienced no discernible physical impairment apart from the disease itself, but she suffered diminished earning capacity because of the disease, was that partial incapacity compensable?
In arguing that claimants’ Hepatitis Type B is not an occupational disease peculiar to the employment the employer relies on Madeo v. I. Dibner Brother Inc., 121 Conn. 664, 667
(1936) and Glodenis v. American Brass Co., 118 Conn. 29, 40-41
(1934). These two precedents are employed to suggest that occupational disease in the Connecticut statute, Sec. 31-275(11),[1]
has a restrictive definition. The argument may very well have prevailed in some of the other forty-nine states, but Connecticut has long since rejected it.
Two years ago this tribunal stated:
We had occasion in Cortes v. Allegheny Ludlum Steel Corp., 1 Conn. Workers’ Comp. Rev. Op. 173, 61 CRD-3-81 (1982) to analyze the special hazard argument embodied in this contention. In particular, Cortes cited Glodenis v. American Brass Company, 118 Conn. 29, 40 (1934) and LeLenko v. Wilson H. Lee Co., 128 Conn. 499 (1942) as well as Santini v. Levin, 110 Conn. 248, 253 (1929). Those cases dating back sixty years held that the “peculiar to the occupation” and “in excess of the ordinary hazards of employment” language in our definition of occupational diseases simply referred to the concepts of proximate causation involved. It did not mean that the deleterious substances or dangerous conditions involved had to exist only or exclusively or uniquely in the claimant’s workplace. They had to be “peculiar to” only in the sense that they constituted causes arising out of the workplace and not from elsewhere and they had to be “in excess of the ordinary hazards of employment” only in the sense that, “A disease is the natural result of conditions which are inherent in the employment and which attach to that employment a risk of incurring it in excess of that attending employment in general,” LeLenko v. Wilson H. Lee Co., supra, at 504-505.
Bergin v. Waterbury, 5 Conn. Workers’ Comp. Rev. Op. 156, 158-159, 537 CRD-5-86 (1988).
Nothing has happened in the past two years to cause us to invalidate our reasoning in Bergen nor has anything occurred in the last half century which makes it necessary to revisit the Supreme court LeLenko ruling.
On the second issue respondents assert the trial commissioner erred in awarding Sec. 31-308(a)[2] benefits for partial incapacity absent a discernible physical impairment. The trial commissioner found that this employee was obligated to leave employment as a dental hygienist because she had contracted Hepatitis, a disease arising out of her employment. The commissioner found further that she was no longer employable as a dental hygienist and that she therefore “suffered a diminution of her earning capacity.”
The simple answer to respondents’ contention is that the disease itself is an impairment in capacity since it disabled claimant from employment as a dental hygienist and therefore caused her to lose earnings. Black’s Law Dictionary 685 (5th ed. 1979) defines incapacity in part as follows:
Incapacity. Want of capacity; want of power or ability to take or dispose; want of legal ability to act. Inefficiency; incompetency; lack of adequate power. The quality or state of being incapable, want of capacity, lack of physical or intellectual power, or of natural or legal qualification; inability, incapability, disability, incompetence. Bole v. Civil City of Ligonier, 130 Ind. App. 362, 161 N.E.2d 189, 194. . . . Total incapacity. In Workers’ Compensation Acts, such disqualification from performing the usual tasks of a worker that he or she cannot procure and retain employment. Incapacity for work is total not only so long as the injured employee is unable to do any work of any character, but also while he remains unable, as a result of his injury, either to resume his former occupation or to procure remunerative employment at a different occupation suitable to his impaired capacity. Such period of total incapacity may be followed by a period of partial incapacity, during which the injured employee is able both to procure and to perform work at some occupation suitable to his then-existing capacity, but less remunerative than the work in which he was engaged at the time of his injury. That situation constitutes “partial incapacity.” Synonymous with “total disability.”
Panico v. Sperry Engineering Co., 113 Conn. 707, 710 (1931) defined incapacity as follows: “`Incapacity'” as used in the compensation law means incapacity to work, as distinguished from the loss or loss of use of a member of the body.” Therefore our own case law as well as the cited dictionary definition support the trier’s conclusion that claimant suffered a compensable partial incapacity as a result of contracting Hepatitis Type B in the course of her employment.
We affirm the decision below and pursuant to Sec. 31-301c(b) grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.
Commissioners A. Thomas White, Jr., and James Metro concur.