CASE NO. 785 CRD-4-88-11Workers’ Compensation Commission
AUGUST 23, 1991
The claimant-appellee was represented at the trial level by Richard Mulroney and Seymore Framson, Attorneys at Law. Neither claimant or either of said attorneys participated in the proceedings at the appellate level.
The respondent-appellants were represented by Thomas H. Cotter, Esq., Cotter, Cotter Sohon.
The Petition for Review from the October 27, 1988 Finding and Award of the commissioner for the Fourth 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 J. Metro.
OPINION
MICHAEL S. SHERMAN, COMMISSIONER.
Respondents appeal the Fourth District October 27, 1988 Award to the Claimant of a specific award for a thirty percent (30%) Permanent partial disability of the back as a result of a compensable injury to his back on June 11, 1987 while in the employ of the respondent-employer. Prior to becoming employed by the ARA Vending Company, the respondent-employer herein, the claimant was in the military service of the United States of America as a member of the Air Force. On July 26, 1979, while a member of the United States Air Force, the claimant injured his back in a fall from a truck, and as a result of that service-connected injury he is receiving Veterans Administration pension based upon a twenty per cent (20%) disability of the lumbosacral spine.
The appellants contend that claimant’s pre-existing service-related disability of twenty percent (20%) should be deducted from claimant’s presently rated thirty per cent (30%) permanent partial disability of his back, thereby leaving these respondents responsible for only ten percent (10%), not the full thirty per cent (30%) as ordered by the trial commissioner.
Section 31-349(a), C.G.S., Provides, in part as follows:
“If an employee who has previously incurred, by accidental injury . . . permanent physical impairment, incurs a second disability by accident . . . he shall receive compensation for the entire amount of disability . . . less any compensation benefits payable or paid with respect to the previous disability . . . less any compensation benefits payable or paid with respect to the previous disability . . .”
The single question presented in this appeal is whether the award which claimant received pursuant to Veterans Administration rules and regulations based upon a service-connected twenty per cent (20%) Permanent Partial disability of his back is, under the aforesaid provisions of Section 31-349 (a), C.G.S., to be credited against the total amount of permanent disability of his back found to exist following an injury to his back on June 11, 1987 while in the employ of the respondent-employer and found to be compensable under the Connecticut Workers’ Compensation Act, as amended, or is such credit to be granted only when the benefits payable or paid have been in respect to a previous disability found to be compensable under the Connecticut Workers’ Compensation Act, as amended?
It is the court’s duty to interpret statutes as they are written.” Muha v. United Oil Co., 180 Conn. 720, 730 (1980). “Courts cannot, by construction, read into statutes provisions which are not clearly stated.'” Glastonbury Co. v. Gillies, 209 Conn. 175, 179 (1988), quoting Houston v. Warden, 169 Conn. 247, 251-52 (1975). “[If] the statutory language is clear and unambiguous, there is no room for construction.” Connecticut Hospital Assn. v. Commissioner on Hospitals Health Care, 200 Conn. 133, 141 (1986) (1975). “[T]he intent of the legislature is to be found not in what it meant to say but in what it did say.” Federal Aviation Administration v. Administrator, 196 Conn. 546, 549-50 (1985); Colli v. Real Estate Commission, 169 Conn. 445, 452 (1975); “If there is no ambiguity in the language of the statute, it does not become ambiguous merely because the parties contend for different meanings.” Caldor, Inc., v. Heffernan, 183 Conn. 566 (1981). Where the language of the statutes is clear and unambiguous, it is assumed that the words themselves express the intent of the legislature and there is no need for statutory construction for a review of the legislative history. Federal Aviation Administration v. Administrator, supra, 550.
The words of Sec. 31-349 (a) here above quoted clearly grant a credit for compensation payable or paid in connection with a previous disability. In this case the claimant has been and continues to be paid compensation in the form of a VA disability benefit for the previous service-connected disability to his back. Had the legislature intended to restrict said credit only to compensation paid for a previous disability resulting from an injury accepted as or found to be compensable under the Connecticut Workers’ Compensation Act, as amended, then it or could have clearly so stated.
Although the recent decisions of the Appellate court of the State of Connecticut and the Supreme Court of the State of Connecticut in McGowan vs. General Dynamics Corp./Electric Boat Division, 15 Conn. App. 615 (1988), aff’d 210 Conn. 580 (1989) (per curiam) do not involve the same issue litigated here, they are nonetheless relevant. In those cases the appellate tribunals overruled this Division and construed Sun Ship, Inc. vs. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458
(1980) reh. denied, 448 U.S. 916, 101 S.Ct. 37, 65 L.Ed.2d 1179 (1980) to prohibit a claimant’s double recovery. See also, Pokorny v. Getta’s Garage, 219 Conn. 439 (1991). The law cannot permit this claimant to enjoy a windfall, i.e. to be paid twice for a portion of his permanent partial disability.
We therefore remand this case to the Fourth District for appropriate action consonant with this decision.
Commissioner James J. Metro concurs.
JOHN ARCUDI, CHAIRMAN (Dissenting).
I dissent. Respondents do not dispute claimants compensable June 11, 1987 back injury suffered in the course of his employment with the respondent employment with ARA Vending Company. They also concede that claimant now has a thirty (30%) per cent permanent partial disability of the back. But they contend they are not responsible to pay the full thirty (30%) per cent back disability.
They base that contention on claimant’s injury history prior to his employment with ARA Vending. During his United States Air Force Service on, July 26, 1979 claimant fell from the back of a truck and incurred a skull fracture, low back injury and contusions of the right wrist and left foot. As a result the United States Veterans Administration by a decision of May 28, 1981 awarded him a forty (40%) per cent disability pension. That decision determined that claimant had various service connected disabilities, i.e. twenty (20%) per cent for traumatic arthritis; ten (10%) per cent, loss of sense of smell; ten (10%) per cent, traumatic brain disease and zero (0%) per cent, loss of sense of taste.[1]
Respondents rely on Sec. 31-349 (a). That statute states
“an employee who has previously incurred-permanent physical impairment, incurs a second disability by accident . . . arising out of and in the course of his employment, resulting in a permanent disability . . . materially and substantially greater than that . . . from the second injury alone, . . . shall receive compensation for the entire amount of disability, . . . less any compensation benefits payable or paid with respect to the previous disability.”
They contend that the V.A. pension constitutes “compensation benefits payable or paid with respect to the previous disability.”
Our act contains no definition of “compensation” or “benefits” or compensation benefits although those words appear innumerable times throughout chapter 568. Their meaning therefore has been derived from their use in the statute and from the various contexts in which they appear.
Sec. 31-307 grants employees with total incapacity a “weekly compensation.” Sec. 31-308 grants “weekly compensation” for partial incapacity. Sec. 31-308a permits “In addition to the compensation benefits provided by Sec. 31-308 . . . additional compensation benefits for . . . permanent partial disability.”
Sec. 31-284 provides that “An employer hall not be liable . . . for damages . . . but an employer shall secure compensation for his employees.” Sec. 31-294 obligates the employer to “provide . . . medical and surgical aid or hospital or nursing service, including medical rehabilitation services.” Sec. 31-345(b) mandates a pro rata assessment for commission administrative expenses against all carriers and self-insured employers based on the ratio “that the total compensation and payment for hospital, medical and nursing care made by such . . . employer or . . . carrier . . . bore to the total compensation and payments for hospital, medical and nursing care made by all . . . carriers and self-insurers.”
We cite these sections because they serve to delineate the sums payable under the act. Compensation benefits thus include weekly amounts for total or partial incapacity and expenses for medical care. They do not seem to include fines and penalties for violations of Secs. 31-284 and 31-288 payable to the second injury fund. They probably do include interest and attorneys fees payable under Sec. 31-300 to the employee if there is undue delay, unreasonable contest or fault or neglect on the part of the employer.
Respondents could have us rule that the phrase “compensation benefits” in Sec. 31-349 refers not just to entitlements contained in our act as outlined in the provisions we have quoted. Rather they argue that phrase in that context also means benefits payable for permanent partial disability benefits of the back under systems other than Connecticut’s. This could mean that we as Connecticut commissioners would have to take into account rulings and computations under statutory schemes and over parties not subject to our jurisdiction. Because our jurisdiction is limited to that set forth in our governing statute we have been chary of any extra-territorial reach. In Brown v. Bon Dental Lab et al, 6 Conn. Workers Comp. Rev. Op. 132, 594 CRD-7-87 (1989) we ruled we could not award benefits referable to time periods during which claimants occupational exposure was in out of state employment. That non-Connecticut employment was not within our in rem jurisdiction. In Chodkowski v. UTC/Pratt Whitney 8 Conn. Workers’ Comp. Rev. Op. 4, 736 CRD-3-88-5 (1989) we held that remuneration for U.S. Army reserve duty was not pay for concurrent employment under Sec. 31-310 as the federal government was not an employer under the Connecticut Act definition, Sec. 31-275 (5). How can we then say that a V.A. service connected partial disability pension payable monthly for under federal law is the same as compensation payable under our statutes over a limited number of weeks for loss of use of a specific body part under Sec. 31-308 (b), C.G.S.? But that is exactly what the respondents would have us do to overturn the Fourth District.
Paragraphs B.4 of the parties “Stipulation of Facts” stated, “he is receiving a pension from the Veterans Administration based upon a 20% disability of lumbosacral spine,” Paragraphs B.5 and B.6, of the same Stipulation state that two orthopedic surgeons, Dr. Joseph Gagliardi, Jr. of Derby and Dr. Philip P. Luchine of New Haven, each rated claimant as having “a total of 30% disability of the lumbosacral spine, which figure includes previous disability of 20% as awarded by the Veteran’s Administration.”
Due in part to the imprecise use of the legal and medical concepts involved those three paragraphs of the Stipulation are not completely accurate statements of what the V.A. decision held and what the two doctors had rated. We may assume that the twenty (20%) per cent traumatic arthritis disability in the V.A. 1981 decision referred to the back as the parties’ Stipulation stated. If we make that assumption, then it would seem that forty (40%) per cent disability pension award simply constituted the arithmetic: total of the traumatic arthritis, loss of sense of smell and traumatic brain disease disabilities.
However the 1981 V.A. document contains a caveat as follows: “The combined evaluation is not determined by adding the percentage of your disabilities as shown but is computed by a combined rating table.” That caveat is statutorily mandated by 38 U.S.C.A. 355 et seq. Thus we cannot be certain that the back disability constituted one half of the forth [forty] (40%) disability award. Moreover 38 U.S.C.A. 355 only permits service disability pension awards in multiples of ten, ranging from “10 per centum” to “100 per centum” Thus even assuming arguendo, which we do not concede, that the Title 38 federal awards were based on exactly the same criteria as specific awards under Sec. 31-308 (b), C.G.S., it is quite possible that the V.A. pension was based on a disability of the back ranging anywhere between fifteen (15%) per cent and twenty five (25%) per cent of the back.
Beyond that, however, the federal criteria are not the same as under our statute. 38 U.S.C.A. 355 states:
The Administrator shall adopt and apply a schedule of of reductions in earning capacity from specific injuries or combinations of injuries the ratings shall be based as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. . . .
Throughout Title 38 of the code and the corresponding title of the Code of Federal Regulations, this concept of disability awards for impairment of earning capacity, i.e. wage loss, is repeated. By contrast, in Connecticut as our Supreme court. emphasized earlier this year, Levanti v. Dow Chemical Co., 218 Conn. 9, 13 (1991):
“Specific benefits are benefits for the loss or loss of the of specific body parts. . . .” Morgan v. East Haven, 208 Conn. 576, 584 (1988). “`These [specific] benefits . . . are not paid as compensation for loss of earning power but to compensate the injured employee for the incapacity through life because of the loss of loss of use of the body part, in question. J. Asselin, Connecticut Workers Compensation Practice Manual (1985) p. 151.” Morgan, supra. Thus, “[c]ompensation in such cases is not dependent upon actual incapacity in whole or in part.” Dombrozzi v. Gross Co., 112 Conn. 627, 629 (1931) (citation omitted).
Thus, the federal service connected disability pension law addresses the reduction in the whole person’s earning capacity that results from the injury to a body part. Further that federal law provides a monthly disability pension for the rest of the veteran’s life. Our state law, Sec. 31-308 (b), is not based on percentage of diminution in the whole person’s earning capacity. Rather it provides for a limited number of weekly compensation payments for a loss or loss of use of a specific body part. The surface similarities in percentages of disability evaluations are deceptively illusory parallels at best.
A similar imprecision characterizes the recitals of the doctors evaluations in paragraphs B.5 and B.6 of the Stipulation. Doctors, qualified medical scientists though they may be, do not determine percentages of disability. They evaluate rates of anatomical impairment. The two terms, disability and impairment, are not semantic equivalents. In the very first chapter, the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, states:
The accurate and proper use of medical information to assess impairment in connection with disability determinations depends on the recognition that, whereas impairment is a medical matter, disability arises out of the interaction between impairment and external demands. Consequently, as used in the Guides “impairment” means alteration of an individual’s health status that assessed by medical means, “disability,” which is assessed by nonmedical means, means an alteration of an individual’s capacity to meet personal, social, or occupational demands, or to meet statutory or regulatory requirement. Simply stated, “impairment” is what is wrong with the health of an individual, “disability” is the gap between what the individual can do and what the individual needs or wants to do.
Under Connecticut’s Sec. 31-308 then, it is not the doctor but the commissioner who determines the percentage of incapacity of a specific body part. The 1981 V.A. determination, “traumatic arthritis 20%” service connected disability,” is not directly translatable into a Connecticut commissioner’s rulings that the claimant had a previous twenty (20%) per cent permanent partial incapacity of the spine. Neither is the doctors evaluation of a present thirty (30%) per cent or a previous twenty (20%) per cent impairment equivalent to a commissioner’s ruling of benefits due under that section of our law. Doctors impairment evaluation are simply evidence which the commissioner needs to consider reaching a decision on disability.
In any case concerning an interpretation of sec. 31-349, it. is helpful to note the origin of that statute as Justice Bogdanski does in Jacques v. H.O. Penn Machinery Co., 166 Conn. 352
(1974). There he cites Fair v. Hartford Rubber Works Co., 95 Conn. 350 (1920) to demonstrate that in compensation acts early history, “employers were often held liable for the full consequences of work-related accidents suffered by their employees, even though these consequences were aggravated by preexisting disabilities,” id. 356. Workers compensation acts derived from the common law of torts, and this concept seemed simply to parallel the ancient tort doctrine that the tortfeasor takes his victim as he finds him. Because decisions such as Fair made compensation, premiums more costly, employers became reluctant to hire handicapped employees.
Consequently, legislators substituted an apportionment scheme instead of the Fair doctrine. When employers hired handicapped employees they could require those workers to execute a written waiver of any compensation allocable to their preexisting impairments. This protected employers but not employees when a subsequent disability occurred.
For that reason the legislature adopted Second Injury Fund legislation in 1945 restoring the concept that the employee was to be paid for the total resulting disability. The Fund was to pay those benefits attributable to the old injury or defect, and the employer was responsible only for paying those benefits resulting from the new injury. This law underwent a number of amendments until 1967 when the basic provisions of the present Sec. 31-349 emerged. The Fund thereafter was held liable where there existed any preexisting permanent physical impairment from any cause. But the 1967 act limited the employer’s liability to the first 104 weeks of benefits thereby eliminating the administrative problems involved in a case by case apportionment process. In the present case if the Fourth District award for thirty (30%) per cent permanent partial disability of the back of 156, weeks of benefits is upheld, then the Fund will pay all benefits in excess of the 104 weeks paid by the employer.
In this way Sec. 31-349 in 1967 preserved the Fair, supra, rationale that the worker was to be paid for the entire resulting disability. Although no decision actually so held, some of the compensation bar argued that the 1967 law permitted a worker to be paid his entire percentage of permanent partial disability after each injury; e.g. if a worker had ten (10%) per cent: permanent partial back disability after a first injury, he received payment for that ten per cent if after a second injury he had a twenty (20%) per cent disability, then he was to be paid twenty (20%) per cent benefits without reduction for the first ten (10%) per cent received. To clarify the statute and to eliminate the possibility of such an interpretation, the legislature added the 1979 present language reducing compensation by any compensation benefits payable or paid with respect to the previous disability.” The history of how this statute and this phrase in the statute came about supports the conclusion that the legislature only wished to reduce the award by the amount of Connecticut compensation previously paid for permanent partial disability.
The small number of other jurisdictions where this issue has arisen have ruled that a V.A. service connected partial disability pension is not deductible, Subsequent Injury Fund v. Slater, 27 Md. App. 295, 340 A.2d 405 (1975); American Building Maintenance v. McLees, 296 Or. 772, 679 P.2d 1361 (1984). In Slater Maryland’s statute specifically provided for a reduction in the award: “In making any award from the fund for a subsequent injury the commission shall consider any prior award made by the commission, or by a similar commission in any other state or in the District of Columbia.” The court ruled a V.A. service connected partial disability pension was not the type of award encompasses by the statute and therefore not to be deducted.
In McLees the Oregon statute stated: “Should a further accident occur to a worker who . . . has been paid . . . compensation for a permanent disability, his . . . compensation for such further accident shall be made with regard to the combined effect of his injuries and his past receipt of money for such disabilities.” Unlike Maryland, Oregon had no specific provision for reducing an award because of compensation received in other systems. A previous lower court decision in another case, Harris v. Saif, 55 Or. App. 158, 637 P.2d 1292 (1981) had permitted an award to be reduced because there had been a prior California award from earlier injury. But the Oregon Supreme court in McLees ruled that only previous. Oregon compensation awards were to be the basis for reducing subsequent injury awards “we hold that statute requiring . . . an award of compensation for a subsequent disability shall be made with regard to the combined effect of his injuries and his past receipt of money for such disabilities refers only to previous compensation paid a worker under the Oregon workers compensation system.” American Building Maintenance v. McLees, supra, at 1364.
Thus, the two states which have interpreted statutes similar to Connecticut Sec. 31-349 have held that a V.A. partial disability pension is not prior compensation to be deducted. Maryland did so despite a Provision in its law permitting other states prior awards to be deducted. The V.A. pension was not such an award of compensation by another state. Oregon whose statute more closely resembles our own as it had no provision credit other states awards similarly held that the service connected partial disability pension was not the type of payment which could cause reduction in the state’s award.
We have commented at great length on the meaning of “compensation” in Sec. 31-349, C.G.S. and how that concept differs from partial “disability” in 38 U.S.C.A. 355. Because of those distinctions it was important to consider the doctor’s role in the process as contrasted with the commissioner’s duty to adjudicate the matter. We also referred to the history of Sec. 31-349 to demonstrate its heritage as a doctrine imposing liability for total resulting disability on the employer regardless of how any previous disability was caused. Finally, we cited the decisions of the two other states which have decided the issue. Based on this analysis we conclude that the permanent partial service connected disability pension granted by the V.A. to the claimant is not “any compensation benefits payable or paid with respect to the previous disability” under our law.
Therefore, the Fourth District October 27, 1988 decision awarding Sec. 31-308 (b) benefits for thirty (30%) per cent permanent partial disability of the back should be affirmed and the appeal should be dismissed.