CASE NO. 788 CRD-2-88-11Workers’ Compensation Commission
MARCH 23, 1990
The claimant was represented by Peter Quay, Esq., and George Waldron, Esq., at the trial level and John Greiner, Esq., at the appellate level all of Murphy and Beane.
The respondent-employer was represented by F. Jerome O’Malley, Esq., Dupont, Tobin, Levin, Carberry and O’Malley. P.C.
This Petition for Review from the October 31, 1988 Finding and Award of the Commissioner for the Eighth District acting for the Second District was heard December 1, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Michael S. Sherman and James Metro.
OPINION
JOHN ARCUDI, CHAIRMAN.
The Claimant appeals the October 31, 1988 Finding and Award of Sec. 7-433(c) benefits. His Motion to Correct was granted in part and denied in part by the Eighth District Commissioner acting for the Second District.[1]
The underlying facts as found are as follows: The claimant fire fighter had been originally awarded Sec. 7-433(c) benefits in 1982 by the Second District Commissioner. In the December 8, 1982 Finding and Award he was awarded 156 weeks of benefits for a twenty percent (20%) permanent partial loss of use of the heart due to heart disease and hypertension. Those benefits expired August 15, 1985 and the claimant thereafter sought benefits pursuant to Sec. 31-308a.[2]
Prior to employment with the respondent Fire District, he had been a member of the United States Coast Guard for twenty (20) years until 1966 when he retired due to disability of both knees, arthritis of the hips, bursitis of the shoulder and gout. At the time of the 1982 award the employer was also paying claimant a disability pension for heart disease and hypertension. He has not worked since 1981 when he began receiving that pension. In July, 1986 claimant underwent coronary bypass surgery. The December 8, 1982 Award granted him an additional five percent (5%) permanent partial loss of use of the heart.
In paragraph 28 the Commissioner found claimant to be totally disabled on account of the cardiac surgery from June 30, 1986 to November 10, 1986. However in the part of the decision containing orders of payment, paragraph 35, no benefits of any sort, total disability or otherwise, were awarded for that period.
The Commissioner did award Section 31-308a benefits, one hundred thirteen (113) weeks, for the periods August 16, 1985 to May 7, 1986; May 10, 1986 to June 29, 1986; and November 10, 1986 to March 10, 1988, a total of $8000.00 (paragraph 35(a)). In addition he awarded twenty-six (26) more weeks of Sec. 31-308a benefits beginning, February 9, 1989, payable at a $200.38 weekly rate. (Paragraph 35(c)).
We agree with claimant’s contention that he was entitled total disability benefits for the period June 30, 1986 to November 10, 1986 as paragraph 28 found him totally disabled for those weeks. Total incapacity benefits are governed by Sec. 31-307.[3] That section clearly states that an employee is to receive such benefits if he is totally incapacitated. The matter needs to be remanded to repair that oversight.
The second ground of appeal concerns a whole man disability rating assessed by Dr. Wallace B. Lebowitz, claimant’s cardiologist. Dr. Lebowitz on March 11, 1988 concluded claimant had a twenty-five percent (25%) impairment due to coronary heart disease and a fifty percent (50%) impairment due to hypertension. He combined these two impairments in one evaluation determining that claimant had a sixty-three percent (63%) impairment of the whole man.
As previously noted the Commissioner found claimant had a twenty-five percent (25%) partial disability due to heart disease and awarded him five percent (5%) in addition to the twenty percent (20%) already received. But he did not award any permanent partial specific benefits for hypertension under Sec. 31-308(d).[4] Instead he took the sixty-three percent (63%) of the whole man rating in account and used it to calculate a benefit under Sec. 31-308a.
That statute provided that an eligible claimant was to receive “two-thirds 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 and the weekly amount which such employee will probably be able to earn thereafter.” If the Commissioner is unable to determine the “exact loss of earnings. . .such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury.”
The Commissioner found that a fire fighter in claimant’s position would now be earning $477.09 weekly. He computed two-thirds of that sum, $318.06. Then he took sixty-three percent (63%) of $318.06 to arrive at a weekly compensation rate of $200.38, and he ordered twenty-six (26) weeks benefits at that rate beginning February 9, 1989.
Adopting that computation method necessitated combining the two procedures set forth in Sec. 31-308a. But that statute mandated the second listed procedure as an alternative to the first and not a method to be employed in combination with the first. Sec. 31-308a also holds that the weekly rate for such benefit may not exceed the maximum provided in Sec. 31-309. See Vincent v. Town of New Milford and Second injury Fund No. 761 CRD-7-88-9 (2/5/90). That maximum in this case was $285.00.
If the first statutory computation procedure is employed to compute claimant’s Sec. 31-308a weekly rate, then we must take two-thirds of the difference between wages currently earned by a comparable fire fighter and the amount claimant was earning or could earn. The Commissioner apparently felt that latter amount was zero. He therefore computed two-thirds of the difference to be equal to $318.06. Since the claimant could not receive more that his basic compensation rate, the twenty-six (26) weeks benefits beginning February 9, 1989 would be paid at that basic rate, $285.00.
On the other hand if the Commissioner felt it impossible to determine claimant’s actual earning capacity, he would choose the second statutory method. If claimant had lost sixty-three percent (63%) physical ability or earning power, then claimant would be entitled to sixty-three percent of his basic compensation rate (63% x $285.) or $179.55 as a weekly rate.
Therefore the claimant’s appeal is sustained, and the matter is remanded to the trial Commissioner for further proceedings consistent with this opinion.
Commissioner Michael S. Sherman and James Metro concur.