JEAN McCURDY, Widow of JOHN MOLLICO, a/k/a JOHN McCURDY, Deceased and ESTATE OF JOHN MOLLICO, CLAIMANT-APPELLANTS vs. STATE OF CONNECTICUT EMPLOYER, RESPONDENT-APPELLEE

CASE NO. 887 CRD-4-89-6Workers’ Compensation Commission
JANUARY 10, 1991

The claimant was represented by Sigmund L. Miller, Esq., and Harold Rosnick, Esq., both of Miller Rosnick.

The respondent was represented by Diane D. Duhamel, Esq., Assistant Attorney General.

This Petition for Review from the June 13, 1989 Finding and Dismissal of the Commissioner for the Fourth District was heard June 1, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew Denuzze and George Waldron.

OPINION

JOHN ARCUDI, CHAIRMAN.

A widow is here claiming benefits as a surviving dependent under Sec. 31-306, C.G.S. There is also a claim by the estate of the decedent. John Mollico, a/k/a John McCurdy sustained a compensable injury to his low back November 21, 1983 while employed by the State of Connecticut. He died December 24, 1987 due to metastatic brain and lung cancer, causes unrelated to the 1983 injury.

Jean McCurdy, the widow, had married decedent September 10, 1952, but they ceased living together in 1964. However, the decedent provided her regular support until 1977 when their youngest child reached eighteen. After 1977 the decedent contributed financially only occasionally.

Between the date of injury in 1983 and the date of death in December, 1987 the decedent received total disability benefits under Sec. 31-307, C.G.S. The brain and lung cancer condition was diagnosed September 16, 1987. On October 15, and October 20, 1987 Dr. David M. Silverstein, a Derby neurosurgeon who treated this state employee, issued medical reports stating claimant had reached maximum medical improvement with a 70% permanent partial disability of the low back. Those same reports also stated he was totally disabled secondary to his lumbar spine. See finding paragraph #6.

The appellants contend “The commissioner erred in failing to conclude that either the decedent’s wife or the decedent’s estate is entitled to benefits under Connecticut General Statutes section 31-308(b)(13) in that the decedent had reached maximum medical improvement prior to his death.”

With respect to Sec. 31-308 permanent partial disability benefits for specific losses of body parts which vest during the life of the employee but are payable after his death, certain governing principles have been fashioned by our courts. Benefits due and owing an employee, including specific benefits, allocable to time periods during claimant’s lifetime remaining unpaid at death, are payable after death to that employee’s estate. Sec. 31-308 specific benefits for loss of body parts vested at a maximum improvement date during the employee’s lifetime, allocable in part to time periods after death, are payable to that employee’s dependents as defined in Sec. 31-306. See Morgan v. East Haven, 208 Conn. 576, 587
(1988); Ancona v. Norwalk, 217 Conn. 50 (1991). The 1989 legislature changed the law in this regard by adopting P.A. 89-346 and adding a new section (e) of Sec. 31-308[1] . As the injury here occurred in 1983 before the effective date of P.A. 89-346, we do not consider that amendment applies in the present case.

During the decedent’s lifetime there was never any Voluntary Agreement between the parties or adjudication by the commissioner that Sec. 31-308
specific benefits were payable for permanent partial disability of the back. Instead the employer continued to pay Sec. 31-307 total benefits until date of death. Appellants argue that Sec. 31-295(c) requires payment of Sec. 31-308 benefits within thirty days of maximum improvement of the body part affected. They rely on Dr. Silverstein’s October 15 and 20 medical reports stating that maximum improvement had been reached with 70% permanent partial disability of the back. They cite the statutory language “such compensation shall be paid to him beginning not later than thirty days following the date of maximum improvement of such member of members.”

However their argument fails to note the introductory clause of Sec. 31-295(c) “If the employee is entitled to receive compensation for permanent disability to an injured member in accordance with the provisions of Sec. 31-308.” The employee must first be eligible to receive specific benefits before the employer is obligated to pay them within thirty days. The Commissioner below based his decision on other grounds and did not specifically rule on this aspect of appellants arguments, i.e. that the decedent in October, 1987 became eligible for Sec. 31-308 back benefits.

Nonetheless our law does not automatically obligate an employer to pay permanent partial benefits simply because maximum improvement has been reached. Half a century ago the Connecticut Supreme Court ruled that when maximum improvement had been attained and there existed permanent partial disability, it was within the commissioner’s power to decide whether to continue Sec. 31-307 total disability benefits or to initiate permanent partial payments, Osterlund v. State, 129 Conn. 591 (1943). Osterlund, at 600, held “In the case of a partial loss of function of one of the members specified in the statute, the commissioner is called upon, when the stage of maximum improvement has been reached, to exercise his sound judgment in deciding whether to award specific compensation . . . or to permit the weekly compensation for incapacity to continue.”

If it is determined that the permanent partial impairment is severe enough under all the circumstances that total incapacity payments are to continue, then the law will not permit double payment, Olmstead v. Lamphier, 93 Conn. 20, 23 (1918). When Scalora v. Dattco, Inc., 39 Conn. Sup. 449
(1983) distinguished Olmstead with respect to disfigurement awards, it still reaffirmed its precedential value concerning total incapacity and partial incapacity awards. “There is no dispute that such payments are mutually exclusive — one cannot be at once totally and partially incapacitated.” id, 452.

Our own decision in Bacote v. Anaconda American Brass, 1 Conn. Workers’ Comp. Rev. Op. 42, 18-CRD-5-80 (1981) although presenting a somewhat different fact situation is on point. In that case there had been a medical finding of maximum improvement and a 20% permanent partial disability of the back six years before death due to unrelated causes. We ruled against the dependent’s claim. Here, too, as the decedent continued to be eligible for and receive total disability benefits until his death, his right to specific benefits never vested. Consequently there was no unmatured portion of Sec. 31-308 benefits payable to his dependents.

Further, the commissioner did specifically rule that even if there were an unmatured portion of specific benefits payable at death, there were no dependents eligible to receive them. The widow was neither a presumptive dependent or a dependent in fact under Sec. 31-306. That statute defines a presumptive dependent as “a wife upon a husband with whom she lives at the time of his injury or from whom she received support regularly.” This claimant widow does not satisfy that definition.

Similarly she is not a dependent in fact. Again, the statute states “In all other cases where there is no presumptive dependent, questions of dependency shall be determined in accordance with the fact, as the fact may be at the time of the injury. Such other dependents are referred to hereinafter as dependents in fact.” The commissioner found essentially that the widow was supporting herself at the time of the decedent’s injury. That is a factual determination to be made by the trier. We will not disturb that finding as it was based on the evidence and not contrary to law. Besade v. Interstate Security Services, 212 Conn. 441 (1989); Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

Another finding made by the commissioner was not disputed. There were no minor children of the decedent and therefore no children who could receive benefits as presumptive dependents. Also there were no accumulated specific benefits unpaid at date of death, so there were no payments due decedent’s estate.

We, therefore, conclude that the trial commissioner correctly applied the statutory and case law to the instant matter. We do not consider the constitutional issues raised. The appeal is dismissed.

Commissioners Andrew Denuzze and George Waldron concur.

[1] (e) Any award for compensation made pursuant to this section shall be paid to the employee, or in the event of such employee’s death, to his surviving spouse or, if he has no such spouse, to his dependents in equal shares or, if he has no such spouse or dependents, to his children, in equal shares, regardless of their age.
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