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Ericson v. Perreault Spring & Equipment

CASE NO. 3200 CRB-5-95-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 28, 1997

STEPHEN ERICSON

CLAIMANT-APPELLEE

v.

PERREAULT SPRING & EQUIPMENT

EMPLOYER

and

AMERICAN MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Paul Ranando, Esq., Dodd, Lessack, Ranando & Dalton, 700 West Johnson St., Cheshire, CT 06410.

The respondents were represented by Jeremy D. Booty, Esq., Montstream & May, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033.

This Petition for Review from the October 25, 1995 Finding and Award of the Commissioner acting for the Fifth District was heard September 20, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the October 25, 1995 Finding and Award of the Commissioner acting for the Fifth District. They argue on appeal that the trial commissioner improperly calculated the claimant’s compensation rate in light of a year-end bonus received by the claimant after the date of his injury. We affirm the trial commissioner’s decision.1

The claimant suffered a compensable injury to his left eye on September 28, 1988. That injury was accepted by voluntary agreement dated February 3, 1989. The agreement set the claimant’s average weekly wage at $401.88. The claimant sought to have that computation set aside in order to include profit sharing sums that were paid to employees of the respondent at year’s end. The trial commissioner granted that request, and this board affirmed his decision to reopen the voluntary agreement in Ericson v. Perreault Spring & Equipment Co., 9 Conn. Workers’ Comp. Rev. Op. 171, 1008 CRD-5-90-4 (July 17, 1991).

On remand, the trial commissioner was presented with a stipulation of facts, and ruled that the bonus sums should not be included in the claimant’s average weekly wage because they were not actually received during the 26 weeks preceding the injury. See § 31-310 C.G.S. This board reversed the commissioner’s decision on appeal, holding that Fiore v. Office Furniture Depot, 10 Conn. Workers’ Comp. Rev. Op. 15, 1093 CRD-3-90-8 (Dec. 27, 1991) and our prior decision in Ericson allowed the inclusion of an end-of-the year bonus in a claimant’s compensation rate if it was allocable to weeks worked during the preceding year. Ericson, 12 Conn. Workers’ Comp. Rev. Op. 243, 1418 CRB-5-92-5 (March 29, 1994), appeal dismissed for lack of final judgment, 38 Conn. App. 71 (1995). Based on the stipulated facts, we noted that the end-of-the-year profit sharing bonus of $19,000 was a substantial part of the claimant’s pay, and that it was contemplated by the employment contract. Concluding that the bonus was thus allocable to the weeks that the claimant worked during the calendar year, we remanded the case with orders that the trier add the portion of the bonus allocable to the 26 weeks preceding the injury to the salary that the claimant received during that time ($10,448.88) in order to determine his average weekly wage and compensation rate. Id., 245.

Now, this case has come back to us a third time. The trial commissioner calculated that the $19,000 bonus translated into $365.38 weekly for 52 weeks, and that the claimant’s average weekly wage for the 26 weeks preceding the injury should be increased by that amount, bringing it from $401.88 to $767.26. The respondents argue that the commissioner failed to follow this board’s instructions on remand, as there was no evidence presented to show that any part of the $19,000 was allocable to the 26 weeks preceding the claimant’s injury.2 They argue that the claimant testified that he did not know how his bonus was calculated, and that the employer testified that there was no formula for allocating bonus money, and that much of the claimant’s bonus was given to him because the employer felt sorry for him after his injury.3

A look at the July 18, 1995 formal hearing transcript shows that the claimant testified that he understood the bonus to be part of his pay, and that if he had not received the bonus, he probably could have worked fewer hours for another employer at the same pay. Id., 5. He also testified that he received the $19,000 bonus in December 1988, based upon the weeks he worked that fiscal year. Although he did not know how the bonus was calculated, he stated that he was told by his employer that “the harder you work, the more you make.” Id., 8. The employer, John Perreault, also confirmed that the claimant’s W2 form for 1988 showed that his total compensation was $35,724 based on salary and profit sharing, and that his compensation for 1987 was $37,096, including a profit sharing amount of $17,700. Id., 17.

Despite the testimony cited by the respondents, we believe that there is enough evidence in the record to support the commissioner’s conclusion that the $19,000 bonus could be allocated over the 1988 fiscal year by assigning $365.38 per week to every week in that year. This board had already concluded in the second Ericson decision that the bonus was allocable to the weeks the claimant had worked during 1988; Id., 245; and the commissioner made a logical ruling on how to apportion that amount over the 52 weeks in the year. We also note that this board has decided in Phelan v. Soda Construction, 14 Conn. Workers’ Comp. Rev. Op. 389, 1979 CRB-3-94-3 (Oct. 17, 1995), that a claimant who is owed wages does not actually have to receive his paychecks before the date of his injury in order for them to be included in his wage calculation under § 31-310. Id., 391. Also, we upheld a commissioner’s finding that profit sharing checks based upon the hours a claimant had worked were wages within the meaning of the Workers’ Compensation Act in Yale v. Allegheny Ludlum, 13 Conn. Workers’ Comp. Rev. Op. 275, 276, 1894 CRB-8-93-11 (April 19, 1995). Consistent with all of those decisions, we uphold the commissioner’s decision in this case as well.

Commissioners George A. Waldron and Robin L. Wilson concur.

1 Due to our decision on the merits of this case, we decline to exercise our discretion to dismiss this appeal based on the late filing of the respondents’ brief. Therefore, the claimant’s Motion to Dismiss is denied. BACK TO TEXT

2 The respondents also raise the arguments that the commissioner erred by reopening the 1989 voluntary agreement, and that this board erred by reversing the commissioner’s decision to exclude the year end bonus from the average weekly wage. Both of those matters were considered in prior decisions of this board, and will not be addressed again here. See Peters v. State of Connecticut/Southern Connecticut State University, 13 Conn. Workers’ Comp. Rev. Op. 131, 134, 1616 CRB-5-92-12 (Feb. 1, 1995). BACK TO TEXT

3 The respondents also argued in their brief that the $511.50 compensation rate found by the trial commissioner was too high because the maximum weekly wage at the time of the claimant’s injury was $429.00. In fact, the maximum weekly wage for claimants injured on September 28, 1988 was $643.00. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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