Dombrowski v. Fafnir Bearing Co.

• Decision Date: 24 January 1961
• Citation: 148 Conn. 87,167 A.2d 458
• Court: Connecticut Supreme Court
• Parties: Edward DOMBROWSKI v. FAFNIR BEARING COMPANY et al. Supreme Court of Errors of Connecticut

Page 458

167 A.2d 458

148 Conn. 87

Edward DOMBROWSKI v. FAFNIR BEARING COMPANY et al.

Supreme Court of Errors of Connecticut.

Jan. 24, 1961.

George A. Downing, Manchester, for appellants (defendants).

William S. Zeman, Hartford, for appellee (plaintiff).

Before BALDWIN, C. J., KING, MURPHY and MELLITZ, JJ., LONGO, Superior Court Judge.

KING, Associate Justice.

This is an appeal by the named defendant, the employer, and by its insurer, from a judgment of the Superior Court affirming am award of compensation for disfigurement. The plaintiff has spent his working life at various jobs in a machine shop. The award was made under the provisions of what is now, as amended, § 31-162 of the General Statutes. After providing for compensation for partial incapacity, and for the loss, or loss of use, of certain enumerated members of the body, the statute authorizes compensation for disfigurement in the language quoted in the footnote. ¹ The plaintiff sustained a compensable injury to his right thumb and, subsequently, a compensable injury to his right middle finger. Each injury left a scar, and for each scar the commissioner awarded compensation for two weeks. It is this award with which, alone, we are concerned in this appeal.

To receive any award of compensation under the disfigurement provisions of our compensation act, as quoted, a claimant must prove that he sustained, as a proximate consequence of an injury arising in the course of, and out of, his employment, a disfigurement which was (1) serious, (2) permanent and (3) on one of the areas of the body enumerated in the statute. In this case, it is admitted that each scar was permanent. Each was on the hand, which is one of the areas of the body enumerated.

The claim of the defendants which is perhaps stressed the most is that the fundamental purpose of a compensation act is to provide compensation for loss of earnings or earning capacity and that consequently an implied limitation should be engrafted onto our statute, by judicial construction, to the effect that no award for any disfigurement whatsoever can be made unless it results, or at least may reasonably be expected to result, in such a loss. If this claim is sound, then no award could have been made here, since there was nothing in the finding to indicate that either of the scars had resulted, or was likely to result, in any loss of earnings or earning capacity. The claim finds some support in 2 Larson, Workmen's Compensation Law, p. 51 § 58.32, p. 139 § 65.30. In some jurisdictions, such a limitation is written into the statute authorizing an award for disfigurement. This appears to have once been the case, for instance, in South Carolina, although by subsequent amendment the limitation has been removed. Shillinglaw v. Springs Cotton Mills, 209 S.C. 379, 382, 40 S.E.2d 502; see 99 C.J.S. Workmen's Compensation § 199, p. 656; 58 Am.Jur. 774, § 274.

The construction of a statute depends upon its expressed intent when it is taken as a whole. Fox v. Zoning Board of Appeals, 146 Conn. 70, 73, 147 A.2d 472; Connecticut Chiropody Society, Inc. v. Murray, 146 Conn. 613, 617, 153 A.2d 412; Clark v. Town Council, 145 Conn. 476, 485, 144 A.2d 327. There is nothing in our statute which in any way lends support to the defendants' claim. Indeed, the claim is clearly inconsistent with the express provision that an award for disfigurement shall be '[i]n addition to compensation [if any] for total or partial incapacity' or for the loss or loss of use of a member, and that, within the limitations set forth in the statute, the award shall be in such amount as the commissioner 'deems just.' Obviously, under our statute, an award for disfigurement may be made even though a claimant, as was the case here, is unable to prove that the disfigurement is likely to cause any loss of earnings or earning capacity. 58 Am.Jur. 773, § 274; 99 C.J.S. Workmen's Compensation § 199, p. 656. The defendants' claim is, at most, a policy consideration, to be addressed to the General Assembly, and is 'foreign to the ascertainment of the expressed legislative intent, which is the basic question here.' Connecticut Chiropody Society, Inc. v. Murray, supra, 146 Conn. 618, 153 A.2d 414.

The defendants further claim, as matter of law, that neither of the scars was compensable because each was so inconspicuous that it did not, and could not, constitute a serious disfigurement, if indeed it constituted any disfigurement at all. A medical witness described each scar for the record, and the finding recites this description. The scar at the base of the plaintiff's right thumb is a fine-line scar one and one-half centimeters in length; half of it is silvery white in color, and the rest is about the color of the palmar skin. The scar on the middle phalanx of the plaintiff's right middle finger is also a fine-line scar; it is silvery white in color and about one centimeter in length and runs almost parallel with, and about half a centimeter distant from, the distal flexion crease of the inside of the finger. Neither of the scars would be visible unless the hand was opened and the palm exposed. The commissioner, in his finding, stated that he had viewed the scars and that the description of the doctor did not, in the case of either scar, adequately describe what could be observed by a person viewing that scar. No photographs were introduced, and the only subordinate facts descriptive of either scar are the finding of the commissioner as to the description given by the doctor. The commissioner found no subordinate facts contrary to, or inconsistent with, the descriptions of the doctor or which would in any way support the commissioner's ultimate factual conclusion that those descriptions did not adequately describe the appearance of the scars. This is true even though the finding discloses that the commissioner was informed by counsel that the case was a test case, brought to obtain a construction of the phrase 'serious * * *...