CASE NO. 277 CRD-4-83Workers’ Compensation Commission
SEPTEMBER 29, 1987
The claimant-appellee appeared pro se on her own behalf.
The respondents-appellants were represented by Edward S. Downes, Jr., Esq.
This Petition for Review from the Fourth District Commissioner’s Finding and Award of November 1, 1983 was heard on January 25, 1985 before a Compensation Review Division panel consisting of Commissioners Gerald Kolinsky, Robin Waller and Andrew P. Denuzze.
OPINION
GERALD KOLINSKY, Commissioner.
This matter was tried before the Workers’ Compensation Commissioner for the Fourth District upon an agreed stipulation of facts, which may be summarized as follows:
On June 4, 1980 the claimant sustained a compensable injury to her left master hand, and received benefits which were duly paid by the respondents on a voluntary basis, including an award for disfigurement and specific indemnity for ten (10%) percent loss of use of her master hand, at a weekly compensation rate of $216.16, based upon her average weekly wage of $324.23.
In August of 1982, the claimant suffered a recurrence of said injury, and came to surgery in October, 1982. Benefits were paid to the claimant in accordance with Section 31-307b
C.G.S., wherein the average weekly wage was computed to be $355.02 at the time of the recurrence, and her compensation rate was $223.35.
Following said recurrence, the claimant’s permanent disability increased to twenty-five (25%) percent, and the respondents issued a new specific agreement for twenty-five (25%) loss of use of the master hand, allowing for the ten (10%) percent previously paid, at the original compensation rate of $216.16 in effect on June 4, 1980.
The claimant did not execute said agreement, contending that the compensation rate should be $223.35, or the rate established at the time of the recurrence.
The Fourth District Commissioner found that the claimant had sustained an additional fifteen (15%) percent permanent disability of the master hand, and ordered that the respondents pay 37.8 weeks of additional specific disability benefits at the weekly compensation rate of $223.35, the rate at the time of the recurrence, based upon attainment of maximum medical improvement on April 26, 1983.
This appeal is based upon the respondents’ contention that the proper weekly compensation rate payable for the increased permanent disability should be $216.16, the rate at the time of the original injury.
The sole issue presented herein involves interpretation of Section 31-307b of the Act, which provides in material part as follows:
“If any employee who receives benefits under Section 31-307
returns to work after recovery from his injury and subsequently suffers total or partial incapacity caused by a relapse from the recovery from, or a recurrence of, such injury, such employee shall be paid a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of the original injury or at the time of his relapse or at the time of the recurrence of such injury, whichever is the greater sum, subject to the maximum rate of compensation set pursuant to Section 31-309
for the year in which such employee suffered the relapse or recurrent injury and the minimum rate under this chapter for said year, and provided (1) [such compensation shall not continue longer than the period of total or partial incapacity following the relapse or recurrent injury and (2) no employee eligible for compensation for specific injuries set forth in Section 31-308 shall receive compensation under this section][**] .”
The statutory language is clear and unambiguous in providing benefits to an employee who receives benefits under Section 31-307 for total incapacity and who later suffers a relapse or recurrence of such injury at a rate based upon either the average weekly wage at the time of the original injury or at the time of the relapse or recurrence, whichever is greater, and in this case the average earnings at the time of recurrence were greater, resulting in the increased weekly benefit rate of $223.35 rather than $216.16.
Subsection 1 of Section 31-307b, however, limits the period of such added payment for recurrence to no longer than the period of total or partial incapacity following the relapse or recurrent injury.
Subsection 2 of Section 31-307b prohibits payment of compensation at the recurrence rate to an employee eligible for compensation for specific injuries as enumerated in Section 31-308.
In this case, the claimant’s right to receive weekly benefits at the rate of $223.35 terminated when she ceased to be totally or partially incapacitated [Section 31-307b(1)] or when she became eligible for the additional specific indemnity benefits for 37.8 weeks on April 26, 1983, the date of maximum medical improvement, whichever date was sooner.
The Finding and Award of the Fourth District Commissioner is reversed and remanded for further proceedings in conformity herewith.
Commissioners Andrew P. Denuzze and Robin Waller concur.