Vitti v. Milford

V
***********************************************
    The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.

   All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.

   The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
     ANTONIO VITTI v. CITY OF MILFORD ET AL.
                    (SC 20350)
             Robinson, C. J., and Palmer, McDonald, D’Auria,
                     Mullins, Kahn and Ecker, Js.*

                                   Syllabus

The plaintiff appealed from the decision of the Compensation Review Board,
   which affirmed the decision of the Workers’ Compensation Commis-
   sioner awarding the plaintiff benefits pursuant to statute (§ 31-308 (b))
   for a 23 percent permanent partial disability on the basis of the functional
   capacity of his transplanted heart. While employed as a police officer
   for the named defendant, the city of Milford, the plaintiff was diagnosed
   with giant cell myocarditis and underwent a heart transplant. The plain-
   tiff thereafter filed a claim for benefits pursuant to the statute (§ 7-433c)
   governing compensation for municipal police officers with hypertension
   or heart disease. The commissioner issued a finding and award,
   determining that the plaintiff had reached maximum medical improve-
   ment approximately three years after receiving the transplant and that
   he was entitled to benefits for a 23 percent permanent partial disability
   of the transplanted heart. In affirming the commissioner’s finding and
   award, the board concluded that the commissioner had properly consid-
   ered the function of the transplanted heart in awarding benefits rather
   than awarding the plaintiff 100 percent permanent partial disability bene-
   fits on the basis of the removal and complete loss of his native heart.
   On the plaintiff’s appeal from the board’s decision, held that the board
   properly considered the functionality of the transplanted heart after a
   finding of maximum medical improvement, rather than the total loss of
   the plaintiff’s native heart, in fashioning the specific indemnity award
   because the plaintiff had not suffered a complete loss of that organ
   within the meaning of § 31-308 (b): although the language of § 31-308
   (b) was ambiguous with respect to whether permanent partial disability
   benefits were to be based on the complete loss of a native organ or the
   loss of use of a transplanted organ, the legislative history surrounding
   § 31-308 (b) evinced an intent to balance the goals of protecting workers
   and compensating them for their losses with the economic burden placed
   on employers and insurance companies, and requiring compensation
   for the complete loss of a native organ, despite a successful transplant
   surgery that restores the organ’s functional capacity, was inconsistent
   with and would expand the scope of benefits provided by § 31-308 (b)
   beyond the legislature’s intent, and would require the commissioner to
   disregard the ameliorative effects of the transplant, contrary to this
   court’s well established case law concerning whether a plaintiff has
   reached maximum medical improvement; moreover, although courts
   generally do not consider improvements from artificial implants in
   awarding permanent partial disability benefits, a transplant of live tissue
   is not akin to a prosthetic device for purposes of § 31-308 (b), and,
   accordingly, the board properly considered the functional capacity of
   the plaintiff’s transplanted heart rather than deeming the removal of his
   native heart a 100 percent loss under § 31-308 (b).
        Argued February 27—officially released August 24, 2020**

                             Procedural History

   Appeal from the decision of the Workers’ Compensa-
tion Commissioner for the Fourth District awarding
certain permanent partial disability benefits to the plain-
tiff, brought to the Compensation Review Board, which
affirmed the commissioner’s decision, and the plaintiff
appealed. Affirmed.
  Andrew J. Morrissey, with whom, on the brief, was
David J. Morrissey, for the appellant (plaintiff).
Scott Wilson Williams, for the appellees (defendants).
                          Opinion

   ROBINSON, C. J. This appeal presents a question
of first impression in our workers’ compensation law,
namely, whether a claimant who undergoes a heart
transplant is entitled to a specific indemnity award for
permanent partial disability under the Workers’ Com-
pensation Act (act), specifically, General Statutes § 31-
308 (b),1 for the total loss of the claimant’s native heart,
or whether the award should instead be based on the
rated function of the claimant’s new, transplanted heart.
The plaintiff, Antonio Vitti, who had been employed as
a police officer by the named defendant, the city of
Milford (city),2 appeals3 from the decision of the Com-
pensation Review Board (board) affirming the decision
of the Workers’ Compensation Commissioner for the
Fourth District (commissioner), who awarded him per-
manent partial disability benefits of 23 percent based
on the function of his transplanted heart. On appeal,
the plaintiff claims that § 31-308 (b) mandates compen-
sation for the 100 percent loss of his native heart
because his transplanted heart is akin to a prosthetic
device and, therefore, not considered in any function
rating for purposes of awarding permanent partial dis-
ability benefits. We disagree and, accordingly, affirm
the decision of the board.
   The record reveals the following undisputed facts
and procedural history. The city employed the plaintiff
as a police officer from 1993 until his retirement in
2014. In August, 2010, the plaintiff began experiencing
nausea, abdominal pain, and shortness of breath, which
subsequently led to his diagnosis of giant cell myocardi-
tis, a rare autoimmune disease. The plaintiff received
a heart transplant on September 28, 2010. The heart
transplant was successful, and the plaintiff returned
to work in a part-time capacity in 2011, subsequently
returning to a full-time schedule in 2012. As a result of
the transplant operation, the plaintiff follows a daily
medication regimen and has various activity limitations,
including a reduced capacity to exercise and to travel
via air to the same extent he could prior to the surgery.
   In September, 2010, the plaintiff filed for workers’
compensation benefits pursuant to the Heart and Hyper-
tension Act. See General Statutes § 7-433c. In determin-
ing the specific indemnity award to which the plaintiff
is entitled,4 the commissioner issued a decision finding
that the plaintiff had reached maximum medical improve-
ment on November 21, 2013, three years after his suc-
cessful heart transplant. Crediting the testimony of two
medical expert witnesses and the plaintiff’s description
of his condition, the commissioner found that the plain-
tiff was entitled to an award of 23 percent permanent
partial disability benefits.5
  The plaintiff appealed from the commissioner’s find-
ing and award to the board, claiming that the commis-
sioner improperly failed to award him 100 percent per-
manent partial disability benefits as a result of the
removal of his native heart during the transplant proce-
dure. The board affirmed the commissioner’s finding
and award, concluding that the commissioner had prop-
erly considered the function of the transplanted heart
in awarding permanent partial disability benefits. The
board disagreed with the plaintiff’s argument that a
transplanted heart should be treated as akin to a pros-
thetic device for purposes of awarding benefits. This
appeal followed. See footnote 3 of this opinion.
   On appeal, the plaintiff claims that, in awarding per-
manent partial disability benefits, the board improperly
considered the functional capacity of the transplanted
heart rather than deeming the removal of his native
heart a 100 percent loss under § 31-308 (b). Specifically,
the plaintiff asserts that the plain meaning of the phrase
‘‘the loss of the member or organ,’’ as used in § 31-308
(b), refers to the complete loss of the native heart when
it was removed during the transplant surgery rather
than the function of the subsequently transplanted
heart. As a corollary, the plaintiff contends that a trans-
planted organ is analogous to a postamputation pros-
thetic device and, therefore, should not be considered
for the purpose of awarding permanent partial disability
benefits. The plaintiff further argues that, even if the
transplanted heart is considered an organ rather than
a prosthetic device, we should interpret the word
‘‘organ,’’ as used in § 31-308 (b), as limited to only the
native organ.
   In response, the defendants contend that the board
correctly interpreted § 31-308 (b) in treating the trans-
planted heart as an organ rather than a prosthetic
device. Consistent with well established case law
requiring that permanent partial disability be evaluated
after the claimant reaches maximum medical improve-
ment, the defendants further argue that the board prop-
erly considered the functioning of the transplanted
heart in upholding the commissioner’s award of perma-
nent partial disability benefits. We agree with the defen-
dants and conclude that a transplanted heart is not
akin to a prosthetic device; accordingly, the plaintiff’s
permanent partial disability benefits properly reflect
the functional loss of use of his transplanted heart
rather than the total loss of his native heart.
   ‘‘The principles that govern our standard of review
in workers’ compensation appeals are well established.
The conclusions drawn by [the commissioner] from
the facts found must stand unless they result from an
incorrect application of the law to the subordinate facts
or from an inference illegally or unreasonably drawn
from them. . . . [Moreover, it] is well established that
[a]lthough not dispositive, we accord great weight to
the construction given to the workers’ compensation
statutes by the commissioner and [the] board. . . .
Cases that present pure questions of law, however,
invoke a broader standard of review than is ordinarily
involved in deciding whether, in light of the evidence,
the agency has acted unreasonably, arbitrarily, illegally
or in abuse of its discretion. . . . We have determined,
therefore, that the traditional deference accorded to an
agency’s interpretation of a statutory term is unwar-
ranted when the construction of a statute . . . has not
previously been subjected to judicial scrutiny [or to]
. . . a governmental agency’s time-tested interpreta-
tion . . . .’’ (Internal quotation marks omitted.) Cough-
lin v. Stamford Fire Dept., 

334 Conn. 857

, 862–63, 

224
A.3d 1161

 (2020). Because the present case does not
involve a time-tested interpretation, ‘‘[w]e . . . apply
plenary review and established rules of construction.’’
Brennan v. Waterbury, 

331 Conn. 672

, 683, 

207 A.3d
1

 (2019).
   ‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . When a statute is
not plain and unambiguous, we also look for interpre-
tive guidance to the legislative history and circum-
stances surrounding its enactment, to the legislative
policy it was designed to implement, and to its relation-
ship to existing legislation and [common-law] principles
governing the same general subject matter . . . .
   ‘‘Furthermore, [i]t is well established that, in resolv-
ing issues of statutory construction under the act, we
are mindful that the act indisputably is a remedial stat-
ute that should be construed generously to accomplish
its purpose. . . . The humanitarian and remedial pur-
poses of the act counsel against an overly narrow con-
struction that unduly limits eligibility for workers’ com-
pensation. . . . Accordingly, [i]n construing workers’
compensation law, we must resolve statutory ambigu-
ities or lacunae in a manner that will further the reme-
dial purpose of the act. . . . [T]he purposes of the act
itself are best served by allowing the remedial legisla-
tion a reasonable sphere of operation considering those
purposes.’’ (Citation omitted; internal quotation marks
omitted.) Balloli v. New Haven Police Dept., 

324 Conn.
14

, 18–19, 

151 A.3d 367

 (2016); see, e.g., Brennan v.
Waterbury, 

supra,

 

331 Conn. 683

.
  ‘‘At the outset, it is important to understand that the
act provides for two unique categories of benefits—
those designed to compensate for loss of earning capac-
ity and those awarded to compensate for the loss, or
loss of use, of a body part. . . . Total or partial incapac-
ity benefits fall into the first category. . . . Disability
benefits, also referred to as specific indemnity awards
or permanency awards, fall into the second category.’’
(Citations omitted; internal quotation marks omitted.)
Marandino v. Prometheus Pharmacy, 

294 Conn. 564

,
577, 

986 A.2d 1023

 (2010); see also Rayhall v. Akim
Co., 263 Conn 328, 349, 

819 A.2d 803

 (2003) (discussing
act’s compensation for disability via payment of medical
expenses under General Statutes § 31-294d in addition
to specific indemnity awards). The second category of
benefits, which are provided pursuant to § 31-308 (b),
the provision at issue in this appeal, enumerates a series
of members and organs that, if injured, qualify an
employee for disability benefits or a specific indemnity
award. Marandino v. Prometheus Pharmacy, 

supra,
577

. Prior to setting forth this comprehensive list, § 31-
308 (b) provides in relevant part: ‘‘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 . . . .’’ This statutory text fur-
nishes the starting point for our analysis in the pres-
ent appeal.
   The plaintiff argues that the plain language of § 31-
308 (b), insofar as it refers to ‘‘the . . . organ,’’ directs
the commissioner to consider only the loss of the native
organ.6 As a corollary, he contends that a transplanted
heart should be treated as the equivalent of a prosthetic
device being used after an amputation, rendering it not
an ‘‘organ’’ for purposes of the determining benefit
awards under § 31-308 (b). In construing statutes, words
and phrases are to be construed according to the ‘‘com-
monly approved usage of the language . . . .’’ General
Statutes § 1-1 (a); accord State v. Panek, 

328 Conn. 219

,
227, 

177 A.3d 1113

 (2018). With no statutory definition
of the term organ, we ‘‘consider the common meaning
of that phrase, as expressed in the dictionary.’’ State
v. Panek, 

supra, 229

. At the time § 31-308 (b) and its
amendments were passed, ‘‘organ’’ was defined in rele-
vant part as, ‘‘in animals and plants, a part composed
of specialized tissues and adapted to the performance of
a specific function or functions’’; Webster’s New World
Dictionary of the American Language (2d College Ed.
1972) p. 1002; and as ‘‘a differentiated structure (as a
heart . . .) consisting of cells and tissues and per-
forming some specific function in an organism . . . .’’
Merriam-Webster’s Collegiate Dictionary (10th Ed.
1993) p. 819; accord Merriam-Webster’s Collegiate Dic-
tionary (11th Ed. 2003) p. 874. It is undisputed that the
transplanted heart retains the qualities that characterize
an organ as the term is commonly understood. A heart
transplant surgery is distinct from an amputation in
that it is not a procedure concerned solely with removal;
it has the ultimate goal of replacement. Furthermore,
unlike the prosthetic devices referenced by the plaintiff,
a transplanted heart is—consistent with the dictionary
definitions—composed of organic, living tissue and per-
forms the same function that the native heart did, albeit
at an increased functional level.
   Nevertheless, in asserting that the language of § 31-
308 (b) is plain and unambiguous in its limitation to
the native organ, the plaintiff relies heavily on the stat-
ute’s use of the definite article ‘‘the’’ in specifying the
organ’s loss or impaired function. See Mattatuck
Museum-Mattatuck Historical Society v. Administra-
tor, Unemployment Compensation Act, 

238 Conn. 273

,
277, 279, 

679 A.2d 347

 (1996) (holding that plaintiff
museum was liable for unemployment benefits for art
instructor, who plaintiff alleged it employed as indepen-
dent contractor, because use of article ‘‘the’’ to modify
‘‘business’’ in ‘‘ABC test’’ statute was intended to refer-
ence ‘‘the particular activities engaged in by the plain-
tiff’’ museum specifically rather than by museums gen-
erally). This is a reasonable reading of § 31-308 (b), and,
given the board’s equally reasonable construction of
the statute, which considered the functional capacity
of the transplanted heart, the statute is ambiguous for
purposes of the § 1-2z analysis. See, e.g., Commissioner
of Public Safety v. Freedom of Information Commis-
sion, 

312 Conn. 513

, 534, 

93 A.3d 1142

 (2014). Accord-
ingly, we consider extratextual sources, including legis-
lative history, to determine whether the legislature
intended the words ‘‘the . . . organ’’ in § 31-308 (b) to
be limited to the native organ. See 

id.

   In considering the extratextual evidence, we begin
with the legislative history of § 31-308 (b). Although the
legislative history of § 31-308 (b) illustrates the legisla-
ture’s intent to provide benefits to employees that
would compensate them for the losses of specific
organs or members, it is silent on the specific issue of
whether a transplanted organ is an ‘‘organ.’’ We note,
however, that, in 1967, the legislature enacted No. 842,
§ 15, of the 1967 Public Acts, which extended perma-
nent partial disability benefits to include the loss of an
organ or a loss of its function, in addition to the loss
of body members such as limbs, but did not specifically
identify which injured organs were compensable or to
what degree.7 Instead, the statute gave the commis-
sioner the discretion to award benefits for injuries to
nonscheduled organs or members. Public Acts 1967,
No. 842, § 15, codified at General Statutes (Cum. Supp.
1967) § 31-308. In 1993, the legislature restructured the
act in an attempt to reduce workers’ compensation
insurance rates paid by employers in light of an eco-
nomic recession. See Public Acts 1993, No. 93-228 (P.A.
93-228); see also Rayhall v. Akim Co., 

supra,

 

263 Conn.
346

. To eliminate the perception of ambiguity that had
resulted from the statute’s lack of specificity as to cov-
ered body parts and its concomitant grant of discretion
to the commissioner, P.A. 93-228, § 19, specifically pro-
vided the number of weeks that an employee could be
compensated under § 31-308 (b) for a total loss of cer-
tain individual body parts, including the heart.8 See 36
S. Proc., Pt. 11, 1993 Sess., pp. 3888–89, remarks of
Senator James H. Maloney (‘‘[L]egislative intent is . . .
useful [only] when there is an ambiguity. There’s no
ambiguity in the legislation, as drafted. There is simply
a statement that the listed injuries are compensable.
There is no statement that would then give any comfort
to the notion that any injury that’s not listed is somehow
compensable . . . .’’).
   Moreover, repeated throughout the 1993 legislative
history was a desire by the legislature to set forth a
balanced workers’ compensation scheme. See, e.g., 

id.,
p. 3840,

 remarks of Senator Thomas A. Colapietro. The
legislature intended for the scheme to protect workers
and to compensate them for their losses but not to
impose such a large burden on employers and insurance
companies so as to drive jobs out of the state. 

Id., p.
3883,

 remarks of Senator John Andrew Kissel; 36 H.R.
Proc., Pt. 18, 1993 Sess., p. 6298, remarks of Representa-
tive Paul R. Munns. The legislative history of the specific
indemnity award, particularly after 1993, informs us
that the legislature’s focus was on both compensating
employees for their loss of an organ and protecting
Connecticut’s economy by sending a clear and support-
ive message to employers. See Pasquariello v. Stop &
Shop Cos., 

281 Conn. 656

, 661, 

916 A.2d 803

 (2007)
(stating that ‘‘the principal goal’’ of 1993 restructuring
was to cut ‘‘employers’ costs in maintaining the work-
ers’ compensation system’’). Nevertheless, the legisla-
tive history is silent with respect to the treatment of
transplanted organs specifically.
   The plaintiff’s proposed interpretation of § 31-308 (b),
which would require compensation for the complete
loss of the native organ despite a successful transplant
that restores much of the functional capacity, is incon-
sistent with the legislature’s adoption of a schedule of
specific indemnity awards via the 1993 amendments.
To stop the inquiry with the loss of a native organ, even
if a new one were successfully transplanted, would
automatically subject employers and insurers to com-
pensating employees for complete losses, even when
medical advances have allowed a greater degree of
‘‘maximum medical improvement’’ through means such
as transplants.
   The plaintiff asserts, however, that there is indirect
evidence in the relevant statutory scheme indicating
that the legislature contemplated a situation in which
an employee could lose their heart, live, and be entitled
to total compensation. The plaintiff points out that,
pursuant to § 31-308 (b), any loss of an organ that results
in death will be compensated only under General Stat-
utes § 31-306. The plaintiff argues that that reference
to death in § 31-308 (b) demonstrates that the legislature
recognized the possibility that employees may lose their
hearts completely but not die. Although we are mindful
that the act is remedial in nature and ‘‘should be con-
strued generously to accomplish its purpose’’; (internal
quotation marks omitted) Pizzuto v. Commissioner of
Mental Retardation, 

283 Conn. 257

, 265, 

927 A.2d 811

(2007); we nevertheless find this strained construction
unpersuasive. If we were to hold that the statute limited
compensation only to the loss of native organs, without
any consideration given to the functioning of trans-
planted organs, the statutory benefits would be
expanded in a way that is inconsistent with the legisla-
ture’s intention. It would subject employers and insur-
ers to the payment of higher permanent partial disability
awards, even in situations in which an employee
receives medical care that restores a great degree of
function, as was the case here.
   Moreover, a holding that § 31-308 (b) is triggered
automatically upon the removal of a native organ, with-
out regard to the ameliorative effects of a transplant,
would be inconsistent with nearly one century of case
law governing the concept of maximum medical
improvement. Indeed, we recently clarified that ‘‘perma-
nent disability benefits vest, or become due, when the
claimant reaches maximum medical improvement.’’
Brennan v. Waterbury, 

supra,

 

331 Conn. 695

; see, e.g.,
Panico v. Sperry Engineering Co., 

113 Conn. 707

, 716,

156 A. 802

 (1931) (holding that ‘‘specific indemnity for
proportionate loss of use accrued’’ when injury
‘‘reached the stage of ultimate improvement’’); Wrenn
v. Connecticut Brass Co., 

96 Conn. 35

, 38, 

112 A. 638

(1921) (‘‘The complete and permanent loss of the use
of the arm occurs when no reasonable prognosis for
complete or partial cure, and no improvement in the
physical condition or appearance of the arm can be
reasonably made. Until such time the specific compen-
sation for the loss of the arm, or for the complete and
permanent loss of its use, cannot be made.’’). The plain-
tiff’s proposed interpretation of § 31-308 (b) as limited
to the native organ would have the incongruous result
of requiring the commissioner to ignore the claimant’s
point of maximum medical improvement when it per-
tains to transplants or to make a finding of maximum
medical improvement prior to all potential medical
interventions being exhausted, namely, before the
transplant takes hold.
   Finally, we address the plaintiff’s argument that a
transplanted heart is akin to a prosthetic device because
it is not the organ with which an individual was born.
Decisions of several of our sister state courts, some of
which the board considered in its opinion in the present
case, are instructive on this point. For example, the
Florida District Court of Appeal held that there is a
distinction between transplanted live tissue and a pros-
thetic device, which that state’s Supreme Court pre-
viously had defined as an artificial substitute, in con-
cluding that a corneal graft of living tissue was not a
prosthetic device for purposes of disability benefits.
See Colonial Oaks Apartment v. Hood, 

680 So. 2d 446

,
447–48 (Fla. App. 1996). Similarly, the Rhode Island
Supreme Court specifically considered the distinction
between live tissue and prosthetic devices when it con-
cluded that a claimant who underwent a transplant
surgery replacing his amputated thumb with his index
finger was entitled to compensation based on post-
transplant functionality. See Fogarty v. State, 

103 R.I.
228

, 231, 

236 A.2d 247

 (1967) (‘‘Live tissue . . . is not
equatable with a prosthetic device purchased from a
surgical appliance dealer. One is real; the other artifi-
cial.’’). Along that line, other state courts have held
that artificial implants do not constitute such a total
replacement so as to be considered in the award of
disability benefits. See Tew v. Hillsdale Tool & Mfg.
Co., 

142 Mich. App. 29

, 37–38, 

369 N.W.2d 254

 (1985)
(recognizing distinction between live tissue and artifi-
cial prosthetic device in concluding that prosthetic boot
should not be considered when awarding plaintiff’s ben-
efits because it does not become part of body); Kalhorn
v. Bellevue, 

227 Neb. 880

, 886, 

420 N.W.2d 713

 (1988)
(synthetic intraocular lens implanted into claimant’s
eye should be treated as prosthetic or corrective and not
considered when awarding disability benefits); State ex
rel. General Electric Corp. v. Industrial Commission,

103 Ohio St. 3d 420

, 426–27, 

816 N.E.2d 588

 (2004)
(intraocular plastic lens is corrective and, therefore,
could not be considered in making benefits award for
lost eyesight); Creative Dimensions Group, Inc. v. Hill,

16 Va. App. 439

, 445–46, 

430 S.E.2d 718

 (1993) (artificial
lens implant was corrective and prosthetic device). But
see Lee Connell Construction Co. v. Swann, 

254 Ga.
121

, 121, 

327 S.E.2d 222

 (1985) (surgical improvement
to claimant’s eyesight via implant of permanent lens
could be considered in assessing claimant’s total loss
of sight).
   We agree with these sister state decisions; to hold
that a transplanted heart is more akin to an artificial
prosthetic device than to an organ composed of living
tissue is inconsistent with both the common under-
standing of the word ‘‘organ’’ and the legislature’s intent
in amending § 31-308 (b) in 1993 to balance the benefits
provided under the act.9 Accordingly, we conclude that
the board correctly determined that a functionality anal-
ysis of the transplanted heart, after a finding of maxi-
mum medical improvement, was appropriate in fashion-
ing the plaintiff’s specific indemnity award in the
present case because the transplant meant that the
plaintiff had not suffered a complete loss of his heart
within the meaning of § 31-308 (b).
   The decision of the Compensation Review Board is
affirmed.
   In this opinion the other justices concurred.
  * The listing of justices reflects their seniority status on this court as of
the date of oral argument.
  ** August 24, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
  1
     General Statutes § 31-308 (b) provides in relevant part: ‘‘With respect
to the following injuries, the compensation, in addition to the usual compen-
sation 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 . . . . 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
                                      ***
     ‘‘Heart                                                           520
                                         ***
   ‘‘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 commis-
sioner’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.’’
   2
     PMA Management Corp. of New England, Inc. (PMA), which is a third-
party administrator for the city’s workers’ compensation benefits, is also a
defendant in this appeal. Hereinafter, we refer to PMA and the city collec-
tively as the defendants and individually by name when appropriate.
   3
     The plaintiff appealed from the decision of the Compensation Review
Board to the Appellate Court; see General Statutes § 31-301b; and we trans-
ferred the appeal to this court pursuant to General Statutes § 51-199 (c) and
Practice Book § 65-1.
   4
     The city previously contested the compensability of the plaintiff’s claim
on the ground that giant cell myocarditis is not ‘‘heart disease’’ within
the meaning of § 7-433c. The Appellate Court recently upheld the board’s
determination that the plaintiff’s condition is a compensable heart disease
under § 7-433c. See Vitti v. Milford, 

190 Conn. App. 398

, 420, 

210 A.3d 567

,
cert. denied, 

333 Conn. 902

, 

214 A.3d 870

 (2019).
   5
     The commissioner heard testimony from three medical expert witnesses
regarding the plaintiff’s condition. First, Donald Rocklin, a cardiologist,
testified that, prior to the heart transplant, the plaintiff’s heart was failing.
He also opined that the plaintiff’s transplanted heart had a 23 percent impair-
ment rating and discussed the medication regimen that the plaintiff had
received. Rocklin submitted a letter to the commissioner stating that, prior
to the heart transplant, the plaintiff would have received an impairment
rating of 100 percent. He further analogized the plaintiff’s condition to that
of a coronary artery disease that is treated with medical therapy, such as
a myocardial infraction. Second, Joseph Robert Anthony, a cardiologist,
opined that the transplanted heart should be rated at 28 percent impairment.
Third, Stephen Demeter, a board certified physician in internal medicine,
pulmonary medicine and occupational medicine, testified that, prior to the
heart transplant, the plaintiff had not reached maximum medical impairment.
He further rated the transplanted heart at 12 percent impairment. The com-
missioner found the testimony of Rocklin and Demeter to be credible.
   6
     The defendants argue that there was not a 100 percent loss of the native
heart, citing Rocklin’s testimony that 10 to 20 percent of the native heart
tissue remained in the plaintiff’s body after the transplant. This factual
assertion, however, does not bear on the ultimate analysis of whether a
transplanted heart should be considered a prosthetic. Prosthetic devices
are used even when a complete loss of a member is not sustained and,
therefore, do not necessitate a 100 percent loss.
   7
     Speaking in support of No. 842 of the 1967 Public Acts, Representative
Paul Pawlak, Sr., recognized that an employee’s capacity to work may not
be directly affected by the removal of some body parts, but also that such
losses might reduce that person’s life expectancy. He stated: ‘‘We recognize
that each organ of the body is not equally [important] to the human body
and for this reason we have given the commissioners broad discretion to
determine the values involved with the maximum of 780 weeks compensa-
tion. The commissioners in exercising this discretion will have to consider
such factors as . . . the disabling effect of the loss of the organ with respect
to the entire body and the necessity of having full use of such organ. . . .
[W]e cannot establish a specific relative value for each organ of the body,
but we believe that the commissioners, guided by medical assistance, will
apply this provision fairly.’’ 12 H.R. Proc., Pt. 9, 1967 Sess., p. 4040.
   8
     The defendants argue that, when the legislature first enacted § 31-308
(b), ‘‘medicine was in the dark ages compared to today, and transplants
would have been viewed as science fiction,’’ and that, ‘‘without life saving
measures such as transplants being available, injuries causing complete loss
of the brain, heart, and lungs would have resulted in death and no permanent
partial disability benefits would have been owed.’’ The provisions of § 31-
308 (b) referencing organs and enumerating covered organs, however, were
not enacted during the ‘‘dark ages’’ of medicine but in the 1960s and 1990s.
This court takes judicial notice that, contemporaneous with the 1967 and
1993 amendments to § 31-308 (b), the first heart transplant in the United
States was performed in 1968, with the first procedure resulting in long-
term success in 1981. See P. Linden, ‘‘History of Solid Organ Transplantation
and Organ Donation,’’ 25 Critical Care Clinics 165, 170 (2009). Subsequently,
that procedure has been relatively common throughout the 1990s to present.
   9
     As discussed at oral argument before this court, organ transplants, includ-
ing heart transplants, are distinct from joint replacements because the mem-
ber’s rating includes the relevant joint; thus, there is no reasonable argument
that the entire member is lost in that instance, with only a portion of its
function lost as a result of the joint replacement. We also recognize that
artificial mechanisms exist that would sustain heart functioning in place of
a heart composed of living tissue. See J. Cook et al., ‘‘The Total Artificial
Heart,’’ 7 J. Thoracic Disease 2172, 2172 (2015). The organ at issue in the
present case, however, is one that is enumerated under § 31-308 (b) and
that was completely replaced by living tissue. We note, therefore, that this
case does not disturb the treatment of joint replacements, which replace a
part of a member and are distinct from a total replacement of an enumerated
organ, such as the heart. See Rayhall v. Akim Co., 

supra,

 

263 Conn. 357

(recognizing that maximum medical improvement of leg would be found
after completion of knee replacement).

Add comment

By

Recent Posts

Recent Comments