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Lemieux v. General Dynamics Corp./Electric Boat Division

CASE NO. 2077 CRB-2-94-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 5, 1995

MARK LEMIEUX

CLAIMANT-APPELLANT

v.

GENERAL DYNAMICS CORP./ELECTRIC BOAT DIVISION

EMPLOYER

and

NATIONAL EMPLOYERS CO.

SELF-INSURED ADMINISTRATOR

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Gerard R. Rucci, Esq., Embry & Neusner, 118 Poquonnock Road, P. O. Box 1409, Groton, CT 06340.

The respondents were represented by John Greiner, Esq., Murphy & Beane, 2 Union Plaza, P. O. Box 590, New London, CT 06320.

The Second Injury Fund was represented by Yinxia Long, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 13, 1994 Finding and Dismissal of the Commissioner acting for the Second District was heard April 7, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the June 13, 1994 Finding and Dismissal of the Commissioner for the Second District. He argues on appeal that the commissioner improperly denied his claim for concurrent employment benefits under § 31-310 C.G.S. based on his earnings as a member of the Connecticut National Guard. We affirm the trial commissioner’s decision.

The parties stipulated that the claimant injured his back during the course of his employment with the respondent General Dynamics on November 21, 1989, and became entitled to benefits under the Workers’ Compensation Act. The injury resulted in a fifteen (15) percent permanent disability of the claimant’s back. The claimant was also a member of the Connecticut National Guard (CNG) at the time of his injury, and earned $43.80 per week as wages for his military duties. The sole issue on review is whether those wages should be included in the claimant’s average weekly wage pursuant to § 31-310 C.G.S.

The trial commissioner reasoned that the CNG is a division of the State of Connecticut; see § 27-14 C.G.S.; and thus an employer within the meaning of § 31-275(10) C.G.S. She then distinguished between employees and members of the CNG, who are defined separately in § 27-31 C.G.S. and § 27-55 C.G.S. Under her analysis, the legislature intended National Guard employees and members to be treated differently, as it did not want to create a situation where CNG members such as the claimant could qualify as employees under the Workers’ Compensation Act. The commissioner therefore dismissed the claim for concurrent employment benefits.

Section 31-310 allows an injured employee receiving less than the maximum compensation rate to include in his average weekly wage calculation “wages earned from all such employers in the period of concurrent employment,” with the Second Injury Fund becoming liable for the pro rata portion of the wages not attributable to the employment in which the injury occurred. Section 31-310 is “designed to protect the concurrent employee such as a wage earner having more than one job who, for instance, might lose his earnings from his principal job because of an injury occurring on another job with a low compensation rate.” Going v. Cromwell Fire District, 159 Conn. 53, 56 (1970).

In Chodkowski v. UTC/Pratt & Whitney, 8 Conn. Workers’ Comp. Rev. Op. 4, 736 CRD-3-88-5 (Dec. 18, 1989), this board was confronted with a claimant who sought to include her pay from the United States Army Reserve in her weekly compensation rate under the concurrent employment provision. She argued that the Army was an employer within the meaning of § 31-275, insofar as it was a “public corporation within the state.” See § 31-275(10). We disagreed, reasoning that the Connecticut legislature did not and could not empower the Workers’ Compensation Commission to have jurisdiction over the federal government as an employer. Id., 6. Because the Army was not an employer within the meaning of the Workers’ Compensation Act, the wages it paid to the claimant could not be included in her compensation rate under § 31-310.

Similarly, we must determine whether this commission has jurisdiction over the CNG in order to determine whether it is an employer under § 31-310. The trial commissioner concluded that the CNG was an employer under § 31-275(10) only after determining that § 27-67 C.G.S. did not preclude commission jurisdiction over CNG workers’ compensation claims. She specifically noted that § 27-67 is limited “to disability or death incident to the service.” (Emphasis in original.) However, we disagree with her interpretation of that section as it applies to § 31-310.

Section 27-67 gives the adjutant general, who is appointed by the governor under § 27-15 C.G.S., full authority over the matter of compensating officers, soldiers and sailors wounded, disabled or killed incident to their service in the state militia. The statute requires each member of the armed forces of Connecticut injured in the line of duty “without fault or neglect on his part . . . [to] receive such compensation as may be determined consistent with the provisions of [the Workers’ Compensation Act] .” The adjutant general has the authority to find facts, take evidence and compel the attendance of witnesses, and also has the power to appoint a three-officer board or a medical examiner to inquire into the merits of claims in his or her stead. In the latter case, the adjutant general has the right to approve or disapprove the findings of such board or examiner, and may substitute his own conclusion as to the value of the claim. He may also consider appeals from the decision of a medical examiner or board of officers.

Such a thorough grant of authority to adjudicate the compensation claims of CNG members would be inconsistent with this commission’s exercise of jurisdiction over those claims. Despite the general language in § 31-275 regarding the state as an employer, the specific language of § 27-67 preempts the application of § 31-275(10) to the CNG. See Going, supra, 59 (where two methods of computation are inconsistent, specific definition in § 7-314a(b) C.G.S. defining average weekly wage of volunteer fireman controls over general definition in § 31-310 regarding concurrent employment wages). Also, the fact that § 27-67 addresses injuries occurring in the line of military duty does not preclude its applicability under Chodkowski, supra, whose reasoning we apply here. Because this commission does not have jurisdiction over workers’ compensation claims arising out of the duties of Connecticut National Guardsmen, the CNG cannot be considered an “employer” within the meaning of the Workers’ Compensation Act. Therefore, a § 31-310 concurrent employment claim based on CNG wages is inappropriate.

The trial commissioner’s decision is affirmed.

Commissioners Roberta S. D’Oyen and Amado J. Vargas concur.

Workers’ Compensation Commission

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