Sec. 31-308. Compensation for partial incapacity.
Sec. 31-308. Compensation for partial incapacity. (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 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:
MEMBERINJURYWEEKS OF COMPENSATION
Arm
Master armLoss at or above elbow208
Other armLoss at or above elbow194
Hand
Master handLoss at or above wrist168
Other handLoss at or above wrist155
One legLoss at or above knee155
One footLoss at or above ankle125
Hearing
Both ears104
One ear 35
One eye
Complete and permanent loss of sight in, or reduction of sight to one-tenth or less of normal vision157
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 cageBilateral 69
Ovary 35
Testis 35
Mammary 35
NoseSense and respiratory function 35
JawMastication 35
Uterus 35−104
Vagina 35−104
Penis 35−104
CoccyxActual removal 35
Sense of smell 17
Sense of taste 17
SpleenIn addition to scar 13
Gall bladder 13
ToothMinimum 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 commissioner may, in the commissioner'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 commissioner in the commissioner'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 commissioner, 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 commissioner 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 commissioner 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 commissioner shall provide written
notice to the employer prior to any hearing held by the commissioner 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.
(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.)
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.
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.
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 the loss of a member bars claim for subsequent period
exceeding the specific term. Id., 28. If the 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. The specific statutory award does not apply if the injury, because of prior disability, creates total incapacity. Id., 354.
(Aliter by the present statute.) The 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
his death go to dependents not to administrators. 105 C. 305. Payments accrued during his life go to administrator. Id.,
400. Computation of partial loss of sight discussed. 106 C. 406. Hernia was compensable under the act of 1927 but that is
now changed. 108 C. 309. Cited. 110 C. 284. Cited. 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. Cited. Id., 564. 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. 145
C. 101. "Amount he is able to earn thereafter" limited to employment in which he was injured or substitute employment.
Id. Award for disfigurement may be made even though claimant is unable to prove disfigurement likely to cause any loss
of earnings or earning capacity. 148 C. 87. Disfigurement, to be serious, must be of such character that it substantially
detracts from appearance of person disfigured. Id. 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 this section, held not to include the feet. Id., 162. History discussed. Id., 164. Cited. 171 C. 577. Cited. 203
C. 34. Cited. 208 C. 576; Id., 709. Cited. 211 C. 166. Award of special benefits not precluded by provisions of Sec. 7-433c. 214 C. 181. Cited. Id., 189. Cited. 218 C. 9; Id., 531. Cited. 221 C. 29. Cited. 223 C. 376. Cited. 226 C. 569. Cited.
227 C. 261. Cited. 231 C. 287; Id., 529.
Cited. 12 CA 138. Cited. 21 CA 63. Cited. 25 CA 350. Cited. 27 CA 699. Cited. 28 CA 113; Id., 226. Cited. 29 CA
432. Cited. 34 CA 307. Cited. 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. 61 CA 131. 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. Id.
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 this section. 13 CS 182.
Subsec. (b):
Cited. 209 C. 59. Cited. 215 C. 206. Rule against double compensation prohibits concurrent payment of specific indemnity benefits for permanent partial impairment under this section and benefits for total incapacity under Sec. 31-307 are
result of same incident. 217 C. 42. GS (1918 Rev.) Sec. 5352 cited. Id. Cited. Id., 50. Cited. 218 C. 19. Cited. 220 C. 721;
Id., 739. Cited. 221 C. 920. Cited. 224 C. 8. 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. 248 C. 793. Subsec. does not violate equal protection clauses of either fourteenth amendment to the United States
Constitution or article first, 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. Id. 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.
Cited. 26 CA 466; judgment reversed, see 227 C. 261. Cited. 39 CA 28.
Payments under this 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, 35.
Subsec. (c):
Cited. 26 CA 466.
Cited. 42 CS 34.
Subsec. (d):
Cited. 209 C. 808. Cited. 210 C. 580. Plain language of statute precludes recovery for surgical scars. 211 C. 116. Cited.
214 C. 394; Id., 552. Cited. 215 C. 206. Cited. 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. 224 C. 8.
Cited. 15 CA 615.
Cited. 38 CS 648. Benefits under this statute are payable contemporaneously with those under Sec. 31-308(d). 39 CS 449.
Subsec. (e):
P.A. 89-346 cited. 29 CA 432.
Subsec. (m):
A claim for disability, resulting from partial incapacity, under this statute, is not translatable into an initial claim for
liability under section 31-297(b) encompassing a "preclusion of defense" situation. 177 C. 107.