§ 31-308 — Compensation for partial incapacity.

Connecticut § 31-308

• Jurisdiction: Connecticut
• Title 31: Labor
• Ch. 568: Workers' Compensation Act

Text

(a) If any injury for which compensation is provided under the provisions of this chapter results in partial incapacity, the injured employee shall be paid a weekly compensation equal to seventy-five per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by the injured employee before his injury, after such wages have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, and the amount he is able to earn after the injury, after such amount has been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, except that when (1) the physician, physician assistant or advanced practice registered nurse attending an injured employee certifies that the employee is unable to perform his usual work but is able to perform other work, (2) the employee is ready and willing to perform other work in the same locality and (3) no other work is available, the employee shall be paid his full weekly compensation subject to the provisions of this section. Compensation paid under this subsection shall not be more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309, and shall continue during the period of partial incapacity, but no longer than five hundred twenty weeks. If the employer procures employment for an injured employee that is suitable to his capacity, the wages offered in such employment shall be taken as the earning capacity of the injured employee during the period of the employment. (b) With respect to the following injuries, the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be seventy-five per cent of the average weekly earnings of the injured employee, calculated pursuant to section 31-310 , after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act made from such employee's total wages received during the period of calculation of the employee's average weekly wage pursuant to said section 31-310 , but in no case more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309 , or less than fifty dollars weekly. All of the following injuries include the loss of the member or organ and the complete and permanent loss of use of the member or organ referred to: MEMBER INJURY WEEKS OF COMPENSATION Arm Master arm Loss at or above elbow 208 Other arm Loss at or above elbow 194 Hand Master hand Loss at or above wrist 168 Other hand Loss at or above wrist 155 One leg Loss at or above knee 155 One foot Loss at or above ankle 125 Hearing Both ears 104 One ear 35 One eye Complete and permanent loss of sight in, or reduction of sight to one-tenth or less of normal vision 157 Thumb* On master hand 63 On other hand 54 Fingers** First finger 36 Second finger 29 Third finger 21 Fourth finger 17 Toes*** Great toe 28 Other toes 9 Back Number of weeks which the proportion of incapacity represents to a maximum of 374 weeks Heart 520 Brain 520 Carotid artery 520 Pancreas 416 Liver 347 Stomach 260 Loss of bladder 233 Speech 163 Lung 117 Cervical spine 117 Kidney 117 Rib cage Bilateral 69 Ovary 35 Testis 35 Mammary 35 Nose Sense and respiratory 35 function Jaw Mastication 35 Uterus 35-104 Vagina 35-104 Penis 35-104 Coccyx Actual removal 35 Sense of smell 17 Sense of taste 17 Spleen In addition to scar 13 Gall bladder 13 Tooth Minimum 1 Loss of drainage duct of eye (If corrected by prosthesis) 17 for each Loss of drainage duct of eye (If uncorrected by prosthesis) 33 for each Pelvis percentage of back *The loss or loss of use of one phalanx of a thumb shall be construed as seventy-five per cent of the loss of the thumb. **The loss or loss of use of one phalanx of a finger shall be construed as fifty per cent of the loss of the finger. The loss of or loss of use of two phalanges of a finger shall be construed as ninety per cent of the loss of the finger. ***The loss or loss of use of one phalanx of a great toe shall be construed as sixty-six and two-thirds per cent of the loss of the great toe. The loss of the greater part of any phalanx shall be construed as the loss of a phalanx and shall be compensated accordingly. If the injury consists of the loss of a substantial part of a member resulting in a permanent partial loss of the use of a member, or if the injury results in a permanent partial loss of function, the administrative law judge may, in the administrative law judge's discretion, in lieu of other compensation, award to the injured employee the proportion of the sum provided in this subsection for the total loss of, or the loss of the use of, the member or for incapacity or both that represents the proportion of total loss or loss of use found to exist, and any voluntary agreement submitted in which the basis of settlement is such proportionate payment may, if otherwise conformable to the provisions of this chapter, be approved by the administrative law judge in the administrative law judge's discretion. Notwithstanding the provisions of this subsection, the complete loss or loss of use of an organ which results in the death of an employee shall be compensable pursuant only to section 31-306 . (c) In addition to compensation for total or partial incapacity or for a specific loss of a member or use of the function of a member of the body, the administrative law judge, not earlier than one year from the date of the injury and not later than two years from the date of the injury or the surgery date of the injury, may award compensation equal to seventy-five per cent of the average weekly earnings of the injured employee, calculated pursuant to section 31-310 , after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act made from such employee's total wages received during the period of calculation of the employee's average weekly wage pursuant to said section 31-310 , but not more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309 , for up to two hundred eight weeks, for any permanent significant disfigurement of, or permanent significant scar on, (A) the face, head or neck, or (B) on any other area of the body which handicaps the employee in obtaining or continuing to work. The administrative law judge may not award compensation under this subsection when the disfigurement was caused solely by the loss of or the loss of use of a member of the body for which compensation is provided under subsection (b) of this section or for any scar resulting from an inguinal hernia operation or any spinal surgery. In making any award under this subsection, the administrative law judge shall consider (1) the location of the scar or disfigurement, (2) the size of the scar or disfigurement, (3) the visibility of the scar or disfigurement due to hyperpigmentation or depigmentation, whether hypertrophic or keloidal, (4) whether the scar or disfigurement causes a tonal or textural skin change, causes loss of symmetry of the affected area or results in noticeable bumps or depressions in the affected area, and (5) other relevant factors. Notwithstanding the provisions of this subsection, no compensation shall be awarded for any scar or disfigurement which is not located on (A) the face, head or neck, or (B) any other area of the body which handicaps the employee in obtaining or continuing to work. In addition to the requirements contained in section 31-297 , the administrative law judge shall provide written notice to the employer prior to any hearing held by the administrative law judge to consider an award for any scar or disfigurement under this subsection. (d) Any award or agreement for compensation made pursuant to this section shall be paid to the employee, or in the event of the employee's death, whether or not a formal award has been made prior to the death, to his surviving spouse or, if he has no surviving spouse, to his dependents in equal shares or, if he has no surviving spouse or dependents, to his children, in equal shares, regardless of their age. See Sec. 31-259(c) re withdrawals from Employment Security Administration Fund. See Sec. 31-349 re compensation for second disability and payment of insurance for totally incapacitated persons.

Legislative History

(1949 Rev., S. 7431; 1949, 1951, 1953, S. 3044d; 1957, P.A. 463, S. 3; 1958 Rev., S. 31-162; 1959, P.A. 580, S. 7; 1961, P.A. 491, S. 31; 1967, P.A. 842, S. 15; P.A. 75-48; P.A. 79-376, S. 75; P.A. 89-36; 89-346; P.A. 91-32, S. 26, 41; 91-339, S. 28; P.A. 93-228, S. 19, 35; P.A. 00-8; P.A. 12-197, S. 37; P.A. 21-18, S. 1; 21-196, S. 59.) History: 1959 act replaced $45 maximum weekly benefit with reference to rate established by Sec. 31-309 (i.e. 55% of average production wage in state for year in which injury occurred raised to next even dollar, to be determined annually), raised minimum benefit from $15 to $20, added special provisions re loss of master hand and master thumb in Subdivs. (b) and (h) and allowed compensation for serious and permanent disfigurement of upper arms and legs below the knees; 1961 act entirely replaced previous provisions; 1967 act raised compensation rate from 60% to 66.66% of difference between average weekly earnings before injury and amount person can earn afterward, added exceptions re payment of full compensation, increased compensation period for loss of master arm from 296 to 312 weeks, for loss of master hand from 42 to 52 weeks and for loss of master thumb from 87 to 95 weeks, deleted reference to normal vision “with glasses”, added Subdiv. (m) re loss of use of the back, specified commissioners' discretionary powers, replaced reference to disfigurement of specific body parts with reference to disfigurement or scarring of any body part, specifically including scarring from hernial or spinal surgery and deleted limit of 780 weeks for compensation; P.A. 75-48 specified scarring from “inguinal hernia”; P.A. 79-376 divided section into Subsecs. and changed alphabetic Subdiv. indicators to numeric ones, used wages currently earned by employee in comparable position rather than incapacitated person's earnings at time of injury in calculating benefits, specified “significant” disfigurement or scarring and replaced “workmen's compensation” with “workers' compensation”; P.A. 89-36 raised minimum benefit from $20 to $50; P.A. 89-346 added Subsec. (e) providing for the payment of benefits in the event of an employee's death; P.A. 91-32 made technical changes; P.A. 91-339 changed the compensation formula in Subsecs. (a), (b) and (e) from 66.66% of average weekly earnings to 80% of average weekly earnings reduced by deductions for federal taxes and FICA, limited compensation to 100% of the average weekly production wage in Subsecs. (a), (b) and (e), provided that awards under Subsec. (e) shall not be made earlier than one year from the date of the injury, and added considerations to be made by the commissioner, notice requirements and provisions re discernible scars or disfigurements in Subsec. (e); P.A. 93-228 changed the compensation formula in existing Subsecs. (a), (b) and (e) from 80% to 75% of average weekly earnings less deductions for state and federal taxes and FICA, reduced maximum duration of temporary and permanent partial disability benefits provided under Subsecs. (a) and (b), modified the schedule of injuries listed in Subsec. (b), deleted Subsecs. (c) and (d) authorizing commissioner to make discretionary awards, relettering former Subsecs. (e) and (f) accordingly, amended relettered Subsec. (c) to prohibit commissioner from awarding scarring benefits later than two years from the injury or surgery date and for scar located on any area of the body other than the face, head or neck, unless it handicaps the employee in obtaining or continuing to work, and amended relettered Subsec. (d) to entitle a deceased employee's dependents to collect compensation due the deceased employee under an informal or formal agreement or award, effective July 1, 1993; P.A. 00-8 amended Subsec. (b) to include injuries to ovary, uterus and vagina and to make technical changes; P.A. 12-197 amended Subsec. (a)(1) by adding provision allowing certification by an advanced practice registered nurse; pursuant to P.A. 21-18, “commissioner” and “commissioner's” were changed editorially by the Revisors to “administrative law judge” and “administrative law judge's” respectively in Subsecs. (b) and (c), effective October 1, 2021; P.A. 21-196 amended Subsec. (a) by adding reference to physician assistants and making a technical change. May recover for total incapacity for a time, plus the specific award for subsequent amputation. 93 C. 19; 96 C. 37. May recover for total incapacity for a time plus partial incapacity for a further time resulting from the same accident, but not total and partial for the same period. 93 C. 22. Specific award for loss of a member bars claim for subsequent period exceeding the specific term. Id., 28. If loss of a member results in incapacity of another member, additional compensation may be allowed. 94 C. 628. So also if incapacity distinct from loss of the member and not a normal incident thereof. 99 C. 550. For incapacity naturally following amputation, only the statutory award for loss of the member can be given. 95 C. 300. Specific statutory award does not apply if the injury, because of prior disability, creates total incapacity. Id., 354. Statutory award for specified injury does not expire with employee's death. 100 C. 421. Injury caused partial loss of sight in one eye; prior defect in the other eye not to be considered. 104 C. 577. Payments after death go to dependents, not to administrators. 105 C. 305. Payments accrued during life go to administrator. Id., 400. Computation of partial loss of sight discussed. 106 C. 406. Hernia was compensable under 1927 act. 108 C. 309. Cited. 110 C. 284; 112 C. 132. Where evidence conflicting, amount of disability is question of fact for commissioner. Id., 432; 113 C. 532; Id., 747; 116 C. 707. Pending award for specific loss of second eye, claimant is entitled to total incapacity. 112 C. 627. Cited. 113 C. 707. “Inability to work” means inability to do customary work. 119 C. 556. Cited. 120 C. 285. Under former statute, “snap” not equivalent to feeling of pain when related to hernia. 123 C. 43. Loss of eye resulting from infection year after injury not causally connected with original injury. Id., 405. Cited. Id., 513. Inability to obtain work must exist because of defect which is personal to workman and a direct result of the injury. 125 C. 140. Specific indemnity starts on date maximum of improvement is reached even though total incapacity continues. Id., 563. When several years after total disability and specific indemnity payments for total loss of vision of one eye were completed eye had to be removed, final disability compensable. 127 C. 294. Cited. 128 C. 578. Evidence of pain accompanied by injury. Id., 608. Whether pay specific, or total or partial compensation is discretionary with commissioner. 129 C. 591. Cited. 130 C. 383; Id., 403. Commissioner has discretion to make award for partial incapacity rather than specific indemnity; award must be confined to such proportion of sum provided for incapacity as shall represent proportion of total loss or loss of use found to exist. 137 C. 228. “Average weekly earnings” defined; “amount he is able to earn thereafter” limited to employment in which he was injured or substitute employment. 145 C. 101. Award for disfigurement may be made even though claimant is unable to prove disfigurement likely to cause any loss of earnings or earning capacity; disfigurement, to be serious, must be of such character that it substantially detracts from appearance of person disfigured. 148 C. 87. Injury not excludable merely because it is not clinically or objectively demonstrable. 152 C. 214. Cited. 154 C. 1, 11. Under former section, phrase “legs below the knees”, as used in disfigurement provision of section, held not to include the feet. Id., 162. History discussed. Id., 164. Cited. 171 C. 577. A claim for disability, resulting from partial incapacity, under this statute, is not translatable into an initial claim for liability under Sec. 31-297(b) encompassing a “preclusion of defense” situation. 177 C. 107. Cited. 203 C. 34; 208 C. 576; Id., 709; 209 C. 59; Id., 808; 210 C. 580. Plain language of statute precludes recovery for surgical scars. 211 C. 116. Cited. Id., 166. Award of special benefits not precluded by provisions of Sec. 7-433c. 214 C. 181. Cited. Id., 189; Id., 394; Id., 552; 215 C. 206. Rule against double compensation prohibits concurrent payment of specific indemnity benefits for permanent partial impairment under section and benefits for total incapacity under Sec. 31-307 as a result of same incident. 217 C. 42. Concurrent payment of benefits for death caused by heart disease under Sec. 31-306 and benefits for permanent partial impairment of one's heart under this section is prohibited. Id., 50. Cited. 218 C. 9; Id., 19; Id., 531; 220 C. 721; Id., 739; 221 C. 29; Id., 920; 223 C. 376; 224 C. 8; 226 C. 569; 227 C. 261; 231 C. 287; Id., 529. Remedial nature of statute does not relieve plaintiff of burden of establishing all elements of claim by competent evidence. 294 C. 132. Employee's right to permanent partial disability benefits vests when employee reaches maximum medical improvement and does not depend on an affirmative request for such benefits; entitlement to permanent partial disability benefits for surviving spouse of a deceased employee vested when deceased employee reached maximum medical improvement and did not require that deceased employee make an affirmative request for such benefits. 299 C. 185. A determination that the estate of a deceased employee does not have standing to pursue workers' compensation benefits does not violate the right to redress guaranteed by article first, section 10 of the Connecticut constitution. 323 C. 26. Cited. 12 CA 138; 15 CA 615; 21 CA 63; 25 CA 350; 26 CA 466; judgment reversed, see 227 C. 261; 27 CA 699; 28 CA 113; Id., 226; 29 CA 432; 34 CA 307; 39 CA 28; 40 CA 409; Id., 562. Test for determining whether particular conduct is a proximate cause of permanent partial loss of function is whether it was a substantial factor in producing the result; commissioner's conclusion that plaintiff's employment was not a substantial factor in causing plaintiff's permanent partial loss of function is conclusive, provided it is supported by competent evidence and is otherwise consistent with the law. 61 CA 131. Temporary partial disability benefits are available until the injured worker has reached maximum medical improvement. 114 CA 210. A commissioner's authority to award temporary partial disability payments to a claimant is extinguished upon a claimant's reaching of permanent partial disability status. 223 CA 221. The word “hand” does not include disfigurement of the forearm. 10 CS 470. Loss of function of reproductive and urinary members of the body are not further compensable under section. 13 CS 182. Cited. 38 CS 648. Benefits under statute are payable contemporaneously with those under Sec. 31-308(d). 39 CS 449. Payments under section are neither in lieu of wages nor based on loss of earnings; therefore are not includable as income for purpose of determining child support. 42 CS 34. Subsec. (b): Following the amendments in Sec. 19 of P.A. 93-228, Subsec. does not provide commissioner with discretion to award compensation for loss or permanent partial disability of an unscheduled body part or organ; Subsec. does not violate equal protection clauses of either fourteenth amendment to U.S. Constitution or Art. I, Sec. 20, of state constitution because it does not involve either a fundamental right or a suspect class, and because rational justification can be found for constructing a statute such that the loss or permanent partial disability of many organs and body parts is compensable, but permanent partial disability of the skin is not. 248 C. 793. Phrase “in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation” was intended to prohibit double payment of permanency awards and to address case law precluding claimant suffering incapacity following a permanent disability from being able to thereafter collect total incapacity benefits. 263 C. 328. A claimant who undergoes a heart transplant is entitled to an indemnity award for permanent partial disability under Subsec. based on the rated function of claimant's new, transplanted heart and not for the total loss of claimant's native heart. 336 C. 654.