2012 Connecticut General Statutes
Title 31 - Labor
Chapter 568 - Workers’ Compensation Act
Section 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 or the 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 function	35
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 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; P.A. 12-197, S. 37.)

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.

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.

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. (a):

Temporary partial disability benefits are available until the injured worker has reached maximum medical improvement. 114 CA 210.

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.