Romanski v. Town of West Hartford, 12100

• Decision Date: 10 May 1994
• Docket Number: No. 12100,12100
• Citation: 34 Conn.App. 307,641 A.2d 439
• Court: Connecticut Court of Appeals
• Parties: Robert ROMANSKI v. TOWN OF WEST HARTFORD.

Page 439

641 A.2d 439

34 Conn.App. 307

Robert ROMANSKI v. TOWN OF WEST HARTFORD.

No. 12100.

Appellate Court of Connecticut.

Argued Oct. 25, 1993.

Decided May 10, 1994.

[34 Conn.App. 308] Marjorie Wilder, Corp. counsel, for appellant (defendant).

Thomas A. Weaver, Meriden, for appellee (plaintiff).

Before LANDAU, SCHALLER and CRETELLA, JJ.

SCHALLER, Judge.

The defendant town of West Hartford appeals from a decision of the compensation review board (review board) of the workers' compensation commission ¹ upholding an award of special benefits to the claimant, Robert Romanski, under General Statutes (Rev. to 1989) § 31-308(d). ² The principal The defendant claims that the compensation review board improperly (1) interpreted General Statutes § 31-308(d) as not requiring evidence of economic loss, (2) required the defendant to assume the burden of proving that the plaintiff was not entitled to benefits because of its improper interpretation of § 31-308(d), and (3) substituted its own judgment for the commissioner's findings. We affirm the decision of the review board.

issue in this case is whether the plaintiff, a retired firefighter diagnosed with treatable hypertension, but no manifest heart disease, is eligible for special benefits provided by § 31-308(d) in the absence of any evidence of impairment of his earning capacity or disabling effects of his hypertension.

The following facts are relevant to this appeal. The plaintiff and the defendant entered a voluntary agreement, pursuant to General Statutes § 7-433c, ³ which was approved by a commissioner of the workers' compensation commission on March 2, 1989, stating that the plaintiff had a condition of "[h]ypertension for the period of 07/01/88 to 07/11/88." Subsequently, the plaintiff filed for benefits pursuant to § 31-308(d) in which he alleged that, as a result of his hypertension, he sustained permanent loss of function of an organ of the body, specifically his heart and cardiovascular system.

On July 26 and October 16, 1990, formal hearings were held before a workers' compensation commissioner acting for the first district. Edward A. Longo, a cardiologist, testified on behalf of the plaintiff that he initially examined the plaintiff in January, 1989, and determined that the plaintiff had sustained, as a result of his hypertension, a 35 percent impairment of the cardiovascular system. In May, 1990, Longo reevaluated the plaintiff and revised his assessment of impairment of the cardiovascular system to 15 percent.

Robert Livingston, an internist who was the plaintiff's treating physician, testified for the defendant that although the plaintiff had some narrowing of the retinal arterioles in July, 1988, there was no impairment to an organ or body part. Livingston further asserted that he was not in a position nor was it his purpose to provide an impairment rating.

H. Robert Silverstein, a cardiologist, then testified on behalf of the defendant that he reviewed the plaintiff's medical records and determined that the plaintiff had suffered a 5 percent permanent impairment to the whole person, but had no disability that would prevent him from working. Finally, Stanley Roth, an internist, testified that he examined the plaintiff on September 21, 1989, and determined that the plaintiff had a 5 percent impairment to the whole person.

The commissioner precluded the defendant from questioning the medical witnesses regarding any economic loss suffered as a result of the plaintiff's hypertension on the basis that the plaintiff was not obligated to prove "economic loss" in order to establish his claim. A nonappearing physician, Henry C. Rogers, whose specialty was not stated on the record, wrote in his medical report that the plaintiff was "totally and permanently disabled from engaging in any substantial gainful employment in the service of the municipality."

The commissioner issued a finding and award in favor of the plaintiff. The commissioner found that the plaintiff had sustained a 5 percent permanent partial disability of the cardiovascular system for which he awarded the plaintiff thirty-nine weeks of benefits. On April 29, 1991, the defendant appealed to the review board claiming that the plaintiff On January 13, 1993, the review board rendered its decision affirming the finding and award. The board determined that §§ 31-308(d) and 7-433c do not require that the plaintiff prove "economic loss" as a requisite to collecting benefits. Thereafter, the defendant appealed to this court.

had failed to produce evidence that his earnings or earning capacity had been impaired.

I

PROOF OF ECONOMIC LOSS

A

The defendant first claims that the review board improperly concluded that economic loss need not be proven in order to receive special benefits pursuant to § 31-308(d). This issue specifically concerns whether the portion of the statute stating that the commissioner may award such compensation as he deems just, taking into account the "disabling effect of the loss of or loss of function of the organ involved" rises to a requirement of proof of loss of earning capacity in order to receive benefits.

We note at the outset that "[c]ompensation under § 31-308(d) for partial impairment of one's heart is a special award of benefits. Felia v. Westport, 214 Conn. 181, 186, 571 A.2d 89 (1990). 'In contrast to the specific benefits of § 31-308(b), which relate weekly benefits to the impairment or loss of designated body parts ...'; id.; 'a special award is one that is not compensation for the loss [of] or loss of use of a body part, but is compensation for the inability to work as a result of the disability. See Bassett v. Stratford Lumber Co., 105 Conn. 297, 307, 135 A. 574 (1926) (Haines, J., concurring); J. Asselin, [Connecticut Workers' Compensation Practice Manual (1985) ] p. 119 (the author refers to these benefits as "continuing wage benefits").' Morgan v. East Haven, 208 Conn. 576, 584, 546 A.2d 243 (1988). Thus, although a special award derives from a more specific form of impairment, benefits under §§ 31-306 and 31-308(d) compensate for the same loss, that is, the loss of wages as a result of one's inability to work." Ancona v. Norwalk, 217 Conn. 50, 55, 584 A.2d 454 (1991).

Although Ancona states that the purpose of § 31-308(d) is to compensate for lost wages, it does not resolve the question of whether the statute requires a claimant to prove lost wages. "To determine the collectively expressed legislative intent, we look first to the language of the statute itself. If that language is plain and unambiguous, we go no further.... If, however, the statute is ambiguous, e.g., either opaque or susceptible to alternative conflicting interpretations, we will seek guidance from 'extrinsic aids,' e.g., the legislative history...." (Citations omitted.) Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991).

The language of the statute is neither plain nor unambiguous. Our legislature has not defined the phrase "disabling effect," and its meaning in the context of the sentence stating that the commissioner may award such compensation as he deems just, "taking into account the age and sex of the claimant, the disabling effect of the loss of or loss of function of the organ involved and the necessity of the organ or complete functioning of the organ with respect to the entire body" (emphasis added) is not clearly discernible. We conclude, therefore, that a review of the legislative history is appropriate for an understanding of the phrase "disabling effect."

At the outset, we will describe the statute as it stood at the time of the plaintiff's claim. General Statutes (Rev. to 1989) § 31-308 set forth a compensation scheme for partial incapacity. Section 31-308(b) provided a schedule for certain enumerated losses, describing the loss and the compensation that would be afforded. For example, § 31-308(b)(6) provided that "for the complete and permanent loss of hearing in one ear, fifty-two weeks." No proof of loss of earning capacity was required in order to obtain benefits pursuant to § 31-308(b). Levanti v. Dow Chemical Co., 218 Conn. 9, 13-16, 587 A.2d 1023 (1991).

In addition, § 31-308(d) provided for certain unscheduled losses, those not assigned a number of weeks for compensation, such as awards for scarring, disfigurement, and loss of organ or loss of function of organ. From 1939 to 1967, this portion of § 31-308 ⁴ concerned awards for compensation for scarring and disfigurement only. The language of the statute changed at various times, but, in essence, the legislature moved to broaden the types of scars and disfiguring marks that rendered an individual eligible for benefits. See generally Rivera v. I.S. Spencer's Sons, Inc., 154 Conn. 162, 165-66, 223 A.2d 808 (1966) (discussing evolution of statute concerning compensation for scars or disfiguring marks). Further, our Supreme Court in Dombrowski v. Fafnir Bearing Co., 148 Conn. 87, 90, 167 A.2d 458 (1961), held that "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."

The 1967 amendment to the statute added a provision in the area of unscheduled losses that created the opportunity for compensation benefits for the loss of an organ or loss of function of an organ. That amendment stated that the commissioner may award compensation as he deems just for the loss of or loss of use of an organ taking into account "the age and sex of the claimant, the disabling effect of the loss of or loss of function of the organ involved and the necessity of the organ or complete functioning of the organ with respect to the entire body...." The pertinent legislative history addressing this portion of the statute reads as follows: "Lastly this section provides compensation for the first time for loss of organs of the body or loss...