CASE NO. 1529 CRB-5-92-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
DECEMBER 29, 1994
JOSEF W. TYC
CALABRESE CONSTRUCTION CO.
NORTHBROOK PROPERTY & CASUALTY INSURANCE CO.
SECOND INJURY FUND
The claimant was represented by Robert B. Yules, Esq., Yules & Yules, 100 Constitution Plaza, Hartford, CT 06103.
The respondents were represented by Robert G. Montstream, Esq., Montstream & May, 655 Winding Brook Drive, Glastonbury, CT 06033.
Respondent Second Injury Fund did not appear at CRB hearing. The Second Injury Fund was represented at the trial level by Philip Schulz, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the October 6, 1992 Finding and Award of the Commissioner for the Fifth District was heard January 14, 1994 before a Compensation Review Board Panel consisting of Commissioners John A. Arcudi, Angelo L. dos Santos, and Nancy A. Brouillet.
JOHN A. ARCUDI, COMMISSIONER. Claimant’s May 24, 1988 myocardial infarction was found compensable in a September 23, 1991 Fifth District Finding and Award which is not here being appealed. This appeal by claimant relates to an October 6, 1992 ruling. The October 1992 decision found claimant’s average weekly wage to be $880.00 and his compensation rate, $586.96 (sic). The commissioner also found that claimant was able to work with restrictions from August 24, 1988 to February 18, 1991. During those thirty months, he awarded §31-308(a) benefits at $393.53 per week, concluding that claimant had then an earning capacity of $290.00 per week. The commissioner also ordered interest on the sums thus due at the rate of six (6%) percent, but he denied a claim for attorney’s fees.
The appeal challenges the denial of attorney’s fees and argues that the interest rate charged should have been higher than six (6%) percent. Also appealed are the findings for the compensation rate and the earning capacity found for the §31-308(a) ruling.
The award of attorney’s fees under §31-300 in effect at the time of injury lies within the discretion of the commissioner and must be based on a finding that respondents unreasonably contested the claim. The commissioner found instead that respondents’ contest was a reasonable one as it was based on the early reports by the treating cardiologist, Dr. Jared Insel, M.D., Finding #11. He also found claimant prior to May 24, 1988 “had multiple risk factors for heart disease including obesity and being a smoker”. Finding #16. Thus, the commissioner’s conclusions in this regard have support in the evidence and will not be overturned by us.
Absent unreasonable contest or fault by respondents, the same §31-300 in May of 1988 permitted the commissioner in his discretion in cases of unduly delayed payments to award interest at a rate up to six (6%) percent. Here, the commissioner allowed the maximum rate permissible by the May, 1988 statute. Claimant argues that for any payments allocable to weeks after October 1, 1989 the interest rate should be ten (10%) percent, the maximum then allowable. Not conceding but assuming arguendo that the 1989 maximum increase in the interest rate was a procedural rather than substantive change in the law, the 1989 change still permitted the trier to award interest below the maximum rate at his discretion. Therefore there is no basis for the claimant’s contention on the rate of interest after October 1, 1989.
With respect to the §31-308(a)1 award, claimant contends that he should have been paid his full weekly compensation rate. He relies on that part of the statute stating if: (3) no other work is available, the employee shall be paid his full weekly compensation. That argument is flawed since claimant did obtain work during some seventeen weeks of the thirty-month period or for about one eighth of the total time. During those seventeen weeks claimant earned $4,949.46 or an average weekly amount of $291.15. As there was some other work, albeit not much, the commissioner applied the first part of §31-308(a) to determine that claimant had a $290.00 weekly earning capacity and based his decision on that finding. Again, the commissioner’s ruling was reasonable and based on the evidence. There is thus no basis for appellate interference.
Lastly, appellant argues the weekly compensation rate found should have been $643.00 not $586.96. The commissioner found claimant worked fifty-five hours a week at $16.00 per hour, earning $880.00 weekly. The contention is that §31-76c of the Statutes requires overtime pay for hours worked after forty and that therefore the average weekly pay should have been $1,180.00 entitling claimant to the then maximum rate of $643.00. Fiore v. Office Furniture Depot, 10 Conn. Workers’ Comp. Rev. Op. 15, 1093 CRD-3-90-8 (1991), considered a situation where claimant had not received, but seemed entitled to, overtime pay. Because the law “often presumes that what should have been done has been done,” we held that the claimant was entitled to have the overtime pay included in the calculation of her compensation rate. Id., 17. As in Fiore, we remand this case to the Fifth District for further proceedings regarding the inclusion of overtime pay in claimant’s average weekly wage. The Finding and Award of June 28, 1993 after claimant’s second myocardial infarction will also be affected by this disposition.
Except for our holding on the overtime pay, we affirm the commissioner but remand on the issue of overtime pay for further proceedings consistent with this opinion.
Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.
1 Section 31-308 provided: (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 eighty 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 . . . and the amount he is able to earn after the injury, . . . 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. . . . 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” At the time of the claimant’s injury, the statutory compensation rate was sixty-six and two-thirds percent rather than eighty percent, and thus the former rate is applicable here. BACK TO TEXT