CASE NO. 273 CRD-2-83 308 CRD-2-84 309 CRD-2-84Workers’ Compensation Commission
MARCH 2, 1987
Claimant was represented by Stephen C. Embry, Esq. Embry and Neusner.
Respondent Employer and Aetna Casualty and Surety Company were represented by James L. Pomeranz, Esq., Pomeranz, Drayton Stabnick.
Respondent Employer and National Employers Company were represented by Peter Quay, Esq.
This Petition for Review from the February 22, 1984 Finding and Award of the Second District Commissioner was heard January 25, 1985 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Edward F. Bradley and Rhoda Loeb.
FINDING AND AWARD
The Finding and Award of the Second District Commissioner. is affirmed and adopted as the Finding and Award of this tribunal.
OPINION
JOHN ARCUDI, Chairman.
Concurrent state and federal jurisdiction under the 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act, Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980) gives rise to the issue appearing in these three cases. All the claimants were employees of the Electric Boat Division of the General Dynamics Corporation in Groton. They all received benefits under the Longshore Act. As disfigurement benefits under the Connecticut Workers’ Compensation Act were more generous than under the federal legislation they sought state recovery for their scars. The parties all agree that Connecticut had jurisdiction to hear the claims. But thereafter the positions of the claimants and the respondents diverge.
The claimants argue that since they received no scar benefits under the Longshore Act, they should receive Connecticut disfigurement benefits in the full sums due pursuant to the state law. The respondents contend that all sums already paid each claimant under the federal act should be totaled and that total should then be compared to all sums due for comparable types of compensation under state law. Add to those computed state sums the amount due for the state scar awards, and if the total state amount thus calculated exceeds the federal amount already paid would the individual claimant involved receive the state award or any part of
Thus McGowan under the federal law had received (a) $20,378.50 in total disability benefits, (b) $9,792.82 for partial permanent disability, (c) $10,000 lump sum settlement and (d) an $835.45 overpayment or a total of $41,006.77. Under the state statute he would have received $30,492.39 for comparable types of benefits and $3,440.10 for a scarring award or a total of $33,932.49. Samataro received $56,994.06 in temporary total and permanent partial benefits through the Longshore Act. The state law computation would have awarded him $46,723.95 for temporary total, permanent partial and disfigurement benefits. Dinwoodie received $18,958.80 in the federal system. The state law would have granted him $13,338.00 including scarring.
Since the total benefits awardable under state law even when scarring was included in all three cases was less than the federal act had already paid each of the claimants even without scarring the respondents argue no money may be paid them for their state scarring awards. Claimants hold it is incorrect to compare total sums to total sums instead, the comparison should be on a provision to provision basis. Zero benefits were paid for disfigurement in the federal system, therefore the claimants may receive scar award monies provided by the Connecticut Workers’ Compensation Law.
This is a case of first impression in Connecticut. Respondents have cited an Administrative Law Judge opinion Teixeira v. Dodson Boat Yard, 81-LHCA-1843, OWCP No. 1-52118 interpreting the Longshore Act and seeming to hold that total sums should be compared to total sums. That opinion relies on language in Sun Ship that there should not be double recovery. Claimants of course distinguish this precedent and point out that it would not be double recovery since no Longshore disfigurement benefits at all have been paid here.
We are persuaded by a state precedent Bouford v. Bath Iron Works Corp., 514 A.2d 470 (1986), a decision rendered by the Supreme Judicial Court of Maine. Bouford was granted total incapacity benefits due to a back injury from August 18, 1978 to March 19, 1979 and 25% partial incapacity benefits for a period of weeks after March 19, 1979 by the state commission. He had received federal benefits for the same category of benefits over the same periods, but he had not received any federal benefits for permanent impairment. The Maine court found that there should be offsets between federal and state for the temporary total and temporary partial incapacity benefits. However, it permitted the payment of a state permanent impairment award for 50% of the back as no federal payment for that category of benefits had been made. We disagree with Teixeira if it holds otherwise.
The decisions of the Commissioner ordering that state disfigurement benefits be paid in all three cases are affirmed and the appeals are dismissed.
Commissioners Edward F. Bradley and Rhoda Loeb concur.