Surviving Spouse Can’t Secure Permanency Benefits on Worker’s ‘Permanent’ Eye Injury

Case File

A worker died with "permanent" loss of vision related to a fall on the job, but that didn't entitle his surviving spouse to permanency benefits because there was no finding of maximum medical improvement before his death, meaning that the workers' permanency benefits had not vested. Find the full text of the case on Simply Research.

Case: Esposito v. City of Stamford, 2024 WL 3642790 (Conn. 08/02/24).

What happened: When a city worker began his employment, his physical examination indicated that his vision was 20/20 in both eyes. In the course of his employment, the worker fell and struck the back of his head on a concrete floor, losing consciousness. When he awoke, the worker experienced blurred vision in both eyes. Following the accident, the worker's vision was 20/400 in the right eye and finger counting at four inches in the left.

The city agreed to provide total incapacity benefits and began paying $531.03. The worker moved to Ohio and began treatment with an ophthalmologist, who diagnosed the worker with a macular hole in the left and visual acuity of 20/200 in both eyes. A decade later, another ophthalmologist found the same for the left and provided the worker with a bioptic telescope that corrected the vision in his right eye to 20/40.

Workers' Comp 101: According to the National Library of Medicine's Unified Medical Language System, a bioptic or spectacle telescope, is a device that consists of an arrangement of lenses or mirrors intended for a patient who has impaired vision to increase the apparent size of objects.

This ophthalmologist also found that the worker suffered from a "hysterical component" that contributed to his inability to see due to a condition known as "psychogenic blindness." Nonetheless, the ophthalmologist opined that the worker's ultimate visual disability was one having a purely organic cause.

The city continued to make total incapacity benefit payments until the worker died, at which point his surviving spouse and sole presumptive dependent sought permanency benefits. Although the worker never received permanency benefits, the spouse argued that his bilateral eye condition had become permanent and that she was entitled to his vested permanency benefits.

The administrative law judge determined that the worker was entitled to a permanency award of 235 weeks of benefits for each and that the city was entitled to a credit against permanency benefits for all indemnity benefits paid after the date of maximum medical improvement.

The spouse appealed. On appeal, the board affirmed and determined that the worker was not entitled to permanency benefits because the record lacked proof of a "concomitant assignment or award of a permanent partial disability rating, or 'an agreement between the parties sufficient to establish a binding meeting of the minds.'"

The spouse appealed to the Supreme Court of Connecticut, arguing that the board incorrectly concluded that the worker's entitlement to permanency benefits did not vest before his death because he had reached MMI at the date of a finding that he had "total and permanent loss of sight or the reduction to one tenth or less of normal vision in both eyes," entitling him to permanency benefits. The city countered that the record lacked evidence regarding the worker's MMI.

Rule of law: In Connecticut, workers' compensation claimants may receive either "special" or "specific" benefits. Special benefits, such as temporary, total incapacity benefits continue only as long as there is an impairment of wage-earning power. Specific benefits, like permanency benefits, are awarded for a fixed period in relation to the degree of impairment of a body part. Unlike temporary benefits, permanency benefits may be paid to a presumptive decedent upon a claimant's death.

Permanency benefits in Connecticut vest once a claimant has reached MMI, and a finding of MMI requires a determination of the specific date on which the claimant reached MMI.

A posthumous award of permanency benefits requires the existence of a supporting record containing a finding of MMI by permanent partial disability ratings or separate reports or medical evaluations expressly stating that the claimant has reached MMI.

What the Supreme Court of Connecticut said: Agreeing with the city, the court concluded that the worker's entitlement to permanency benefits did not vest before his death because the record did not establish that the worker had reached MMI although he had been found to have a permanent injury.

Specifically, the court noted that the record lacked a clear PPD rating or an agreement to that effect between the worker and the city that would furnish the basis for a finding of MMI. Although the worker's doctors characterized his condition as "one tenth or less of normal uncorrected vision," there was no indication that the doctors determined that that particular degree of vision loss constitute a percentage of MMI, nor was there an agreement between the parties establishing whether the worker had reached a percentage of MMI.

"The absence of either of these items from the record is particularly significant in light of the decedent's psychogenic blindness diagnosis, which suggests that there could well have been room for the improvement of his condition," the court wrote.

Regarding the finding that the worker had a "total and permanent loss of sight," the court explained that that particular finding applied only to a determination of total incapacity and did not consider MMI for purposes of the statutory standard of partial incapacity.

"The record lacked then, as it lacks now, any medical confirmation of a permanency rating, any consideration of how the hysterical component affected or would have affected that rating, or any form of agreement between the parties regarding the extent of the disability," the court wrote.

The court affirmed the board's decision.

Takeaway: In Connecticut, a finding of total incapacity does not create an entitlement for permanency benefits regarding partial incapacity in the absence of a permanency finding or an agreement sufficient for a binding meeting of the minds. See Brennan v. Waterbury, 207 A.3d 1 (Conn. 2019) (Concluding that benefits properly may be paid to a claimant's estate, if such benefits matured before the claimant's death, but finding that the record established that the disability benefits at issue matured prior to the decedent's death).

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