CASE NO. 3080 CRB-1-95-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
DECEMBER 16, 1996
UTC/PRATT & WHITNEY
The claimant was represented by Francis X. Drapeau, Esq., Leighton & Katz, 20 East Main St., P. O. Box 838, Rockville, CT 06066.
The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.
This Petition for Review from the May 26, 1995 Finding and Award of the Commissioner acting for the First District was heard May 10, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the May 26, 1995 Finding and Award of the Commissioner acting for the First District. He argues on appeal that the trial commissioner erred in excluding certain fringe benefits from his average weekly wage calculation under § 31-310 C.G.S. We affirm the trial commissioner’s decision.
The trial commissioner found that the claimant suffered a compensable back injury on September 6, 1991, causing 20 percent permanent partial disability. He argued that his compensation benefits should be calculated under § 31-310 by including his medical, dental, life, disability and accident insurance, pension, vacation pay and sick pay in his average weekly wage. Without making any findings as to the value of each of these items, the commissioner declined to expand the claimant’s average weekly wage. The claimant has appealed that decision to this board.1
Most wage loss benefits available under the Workers’ Compensation Act are calculated by awarding the claimant a percentage of his average weekly earnings. See, e.g., §§ 31-307 (total incapacity); 31-306 (dependents’ death benefits); 31-308(b) (permanent partial impairment). Section 31-310 requires that the average weekly wage be ascertained by taking into account “the total wages received by the injured employee from the employer in whose service he is injured . . . .” The Act does not define the term “wages.” Our Appellate Court, however, has held that “wages” and “earnings” are both broad terms that encompass every form of remuneration payable for personal services, in contrast to “salary,” which is limited to an employee’s base pay prior to the inclusion of overtime pay or other salary enhancements. Vecca v. State, 29 Conn. App. 559, 563 (1992); see also Goodwin v. Stop & Shop Companies, Inc., 13 Conn. Workers’ Comp. Rev. Op. 301, 303, 1830 CRB-3-93-9 (April 21, 1995). On the other hand, we have noted that “wages” is not as broad a term as “income,” in which the statute includes “all forms of remuneration to an individual from his employment, including wages, accident and health insurance coverage, life insurance coverage and employee welfare plan contributions . . . .” Section 31-284b(a) C.G.S.; Pascarelli v. Moliterno Stone Sales, 14 Conn. Workers’ Comp. Rev. Op. 328, 332, 2115 CRB-4-94-8 (Sept. 15, 1995).
The claimant argues that the value of a number of different benefits should have been included in his average weekly wage. We will begin by discussing his insurance. Section 31-284b provides that “an employer who provides accident and health insurance or life insurance coverage for any employee or makes payments or contributions at the regular hourly or weekly rate for full-time employees to an employee welfare plan, shall provide to the employee equivalent insurance coverage or . . . contributions while the employee is . . . receiving compensation pursuant to this chapter . . . .” In District of Columbia v. Greater Washington Board of Trade, 506 U.S. 125 (1992), the United States Supreme Court determined that the doctrine of federal preemption precludes states from enacting laws requiring private employers to provide health insurance coverage for injured employees eligible for workers’ compensation benefits, as that area is already covered by the federal Employee Retirement Income Security Act. As a result of that decision, the Connecticut Supreme Court determined that § 31-284b was unconstitutional as applied to private employers. Luis v. Frito-Lay, Inc., Supreme Court, Docket No. SC 14536 (order, April 27, 1993); see also Civardi v. Norwich, 231 Conn. 287, 298-99 n. 14 (1994). The claimant, a private employee, would thus be ineligible for continuing insurance benefits under § 31-284b as it is now interpreted.
Citing the legislature’s manifest intent in the statute “to maintain, as nearly as possible, the income of employees who suffer employment-related injuries,” the claimant argues that the cost of insurance premiums should be included in a claimant’s average weekly wage. We disagree. As we recently stated in Rodriguez v. Devcon Enterprises, Inc., 2244 CRB-3-94-12 (decided June 28, 1996), the definition of “income” in § 31-284b clearly differentiates “wages” from health and life insurance premiums. Moreover, we would undeniably be disregarding the spirit of the Supreme Court decision in Greater Washington Board of Trade if we were to allow a claimant to collect the value of insurance premiums as compensation, even though direct payment of those premiums by a private employer cannot be mandated by state law. Rodriguez, supra. Therefore, the claimant’s argument that the value of his medical, dental, life, disability, and accidental death and dismemberment insurance premiums should be included in his average weekly wage under § 31-310 must fail on appeal.2
Pension benefits were not directly the subject of the Greater Washington Board of Trade decision, thus making it less clear that § 31-284b is preempted regarding such payments with respect to private employers. However, just as the definition of “income” in that statute distinguishes “wages” from employer-supplied insurance coverage, it also distinguishes “wages” from employer “payments or contributions to . . . an employee welfare plan.” Contributions to the claimant’s pension plan clearly fall within this category, and would also be excluded from “wages” in the Workers’ Compensation Act. See Pascarelli, supra.
The claimant also argues that his vacation pay and sick pay should be accounted for in his average weekly wage. Contrary to pension plan contributions or insurance coverage, vacation and sick pay are not excluded from the definition of “total wages” by specific language in the Act. Instead, this board has determined the status of vacation and sick pay by applying the definition of “wages” in § 31-71a(3) C.G.S.,3 the “regular rate” definition in § 31-76b C.G.S.,4 and the language in § 31-310, thus following the methodology of the Appellate Court in Kreidler v. Bic Pen Corporation, 16 Conn. App. 437, 443 (1988). Graziano v. St. Mary’s Hospital, 11 Conn. Workers’ Comp. Rev. Op. 10, 13-14, 1230 CRD-5-91-5 (Feb. 8, 1993). We held in Graziano that sick pay and vacation pay could indeed be “wages” as long as they were “payments dependent on hours worked or payments by way of compensation for hours worked or sums paid due to contractual or quasi-contractual obligations,” thus making them part of the “regular rate” under § 31-76b. Id., 13. If they were wages (as found by the trial commissioner), they would have to be allocated to the period during which the employee worked to earn such payments, rather than the weeks in which the claimant did not work. Id., 14.
Here, the trial commissioner did not make a finding as to the amount of the claimant’s vacation and sick pay or the methods in which they accrued. However, the claimant filed a Motion to Correct stating that the claimant “was entitled to three weeks of vacation per year at forty hours per week at the rate of $12.99 per hour,” and that he “was entitled to five days (or forty hours) of sick pay per year at $12.99 per hour.” This Motion to Correct was denied. Assuming that those amounts were calculated in the manner alleged by the claimant, it is not clear from the requested corrections that they depended on the hours worked by the claimant or his productivity.
Although the claimant offered the deposition of Jeffrey Hughes, an employee of the respondents’ human resources department, in support of his right to vacation and sick pay under a collective bargaining agreement, the commissioner was not required to heed this testimony in making his decision. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). In evaluating the accuracy of Hughes’ testimony, and whether or not the claimant had shown that he was personally entitled to vacation and sick pay, the commissioner had to make a factual determination. We cannot say that his evaluation of the evidence was arbitrary or illegal on review. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).
The trial commissioner’s decision is affirmed.
Commissioners George A. Waldron and Robin L. Wilson concur.
1 The claimant also raised in his Reasons of Appeal the commissioner’s failure to determine the period of total disability and the duration and amount of temporary partial disability benefits. Because those issues were not briefed or discussed at oral argument, they are deemed abandoned. See Maio v. L.G. Defelice, Inc., 13 Conn. Workers’ Comp. Rev. Op. 197, 198 n.1, 1734 CRB-5-93-5 (March 22, 1995). BACK TO TEXT
2 This board has no authority to address the constitutional issues regarding unlawful classifications raised in the claimant’s brief. See Lustig v. C.N. Flagg Co., 7 Conn. Workers’ Comp. Rev. Op. 38, 658 CRD-1-87 (July 25, 1989) (CRD did not have jurisdiction to decide constitutionality of § 31-284b). BACK TO TEXT
3 Section 31-71a(3) provides: “‘Wages’ means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation.” BACK TO TEXT
4 Section 31-76b(1) provides that “[t]he ‘regular rate’ at which an employee is employed shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee, but shall not be deemed to include (A) sums paid as gifts, . . . as a reward for service, the amounts of which are not measured by or dependent on hours worked, production or efficiency; (B) payments made for occasional periods when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work, or other similar cause, . . . and other similar payments to an employee which are not made as compensation for his hours of employment . . . ; [and] (C) sums paid in recognition of services performed during a given period if . . . the fact that payment is to be made and the amount of the payment are determined at the sole discretion of the employer . . . .” BACK TO TEXT