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Hannan v. George A. Tomasso Construction Corp.

CASE NO. 3589 CRB-02-97-04

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 18, 1998

WAYNE HANNAN

CLAIMANT-APPELLANT

v.

GEORGE A. TOMASSO CONSTRUCTION CORP.

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by A. Patrick Alcarez, Esq., Regnier, Taylor, Curran & Eddy, City Place, 28th Floor, 185 Asylum Street, Hartford, CT 06103-3402.

The respondents were represented by Royce Vehslage, Esq., and Douglas M. Connors, Esq., Law Offices of George J. Duborg, 200 Glastonbury Boulevard, Glastonbury, CT 06033.

The Second Injury Fund was not represented at oral argument. Notice sent to Ernie Walker, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the April 4, 1997 Finding of Facts and Award of the Commissioner acting for the First District was heard December 19, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the April 4, 1997 Finding of Facts and Award of the Commissioner acting for the First District. He argues on appeal that the commissioner improperly calculated his compensation rate by restricting his calculation of the claimant’s pre-injury earnings to the three weeks immediately preceding that injury. We agree in part with the claimant’s argument, and reverse the trial commissioner’s decision.

The claimant began working for the respondent Tomasso Construction on March 28, 1994. He worked for Tomasso continuously every week thereafter until December 23, 1994, when he injured his lumbar spine during the course of his employment. During his employment with Tomasso, the claimant averaged 50-70 hours per week, including substantial overtime. In November 1994, the claimant was advised by Tomasso that overtime work would no longer be available, so the claimant obtained a second job at Lindy Farms on November 13, 1994. During the next three weeks, the commissioner found that the claimant earned a total of $2,682.88 from his two jobs, resulting in an average weekly wage of $894.29. That amount translated into a base compensation rate of $472.21, of which the Second Injury Fund was liable for 38% based on the concurrent employment with Lindy Farms. The commissioner declined the claimant’s request to add findings that the claimant was only able to work one day for Tomasso during one of those three weeks preceding his injury due to inclement weather, thus cutting his wages for that week to $160, and that the claimant had been paid a total of $30,896 during the 33 5/7 weeks he had worked for Tomasso in 1994. The claimant has appealed that decision.

At the time of the claimant’s injury, § 31-310(a) provided, in relevant part:

For the purposes of this chapter, the average weekly wage shall be ascertained by dividing the total wages received by the injured employee from the employer in whose service he is injured during the fifty-two calendar weeks immediately preceding the week during which he was injured, by the number of calendar weeks during which, or any portion of which, the employee was actually employed by the employer . . . . Where the injured employee has worked for more than one employer as of the date of the injury and the average weekly wage received from the employer in whose employ he was injured, as determined under the provisions of this section, are insufficient for him to obtain the maximum weekly compensation rate from the employer under section 31-309, prevailing as of the date of the injury, his average weekly wages shall be calculated upon the basis of wages earned from all such employers in the period of concurrent employment not in excess of fifty-two weeks prior to the date of the injury, but the employer in whose employ the injury occurred shall be liable for all medical and hospital costs and a pro rata portion of the compensation rate based upon the ratio of the amount of wages paid by him to the total wages paid the employee in that average week but not less than an amount equal to the minimum compensation rate prevailing as of the date of the injury. The remaining portion of the applicable compensation rate shall be paid from the Second Injury Fund upon submission to the treasurer by the employer or the employer’s insurer of such vouchers and information as the treasurer may require.

The claimant has raised two arguments in his brief regarding the appropriate method of interpreting this section. One method would use the entire 33 5/7 weeks the claimant worked for Tomasso to calculate his average weekly wage there, while also adding into the calculation the average weekly wage for his three weeks of employment at Lindy Farms. The alternative method would use the factor of 33 5/7 weeks to divide the total wages received by the claimant from both Tomasso and Lindy Farms.

In the recent case of Trankovich v. Frenish, Inc., 47 Conn. App. 628 (1998), the Appellate Court reversed a ruling by this board that inferred from the language of § 31-310 an equitable corollary to account for a situation presumably unforeseen by the legislature when the statute was drafted. The claimant there had worked for an ambulance company part time for several years while working full-time at another employer. After becoming a full-time emergency medical technician at the ambulance company in August 1993, she quit her job at the other employer. Four months later, she was injured in the course of her employment at the ambulance company. The trial commissioner calculated her average weekly wage by dividing her total wages earned at the ambulance company by 52 weeks without considering her wages at the previous full-time employer in any way, as § 31-310 appears to require on its face.

This board ruled in a 2-1 decision that it would be inequitable to calculate the claimant’s compensation rate by focusing only on the wages she earned at the ambulance company over the past 52 weeks (much of which was part-time work), while ignoring the fact that she had held another full-time job during the period she worked part-time at the ambulance company. Trankovich, supra, 3053 CRB-3-95-4 (decided Jan. 3, 1997). Because § 31-310 only allows an average weekly wage to include concurrent employment wages that are based on employment at the time of the injury, this board held that the appropriate way to interpret § 31-310 was to calculate the claimant’s compensation rate by examining only the wages that the claimant earned for the ambulance company subsequent to her cessation of employment with her previous full-time employer. This board opined that this alternative method of calculating the benefit rate would best account for the legislative intent to compensate injured workers based on their loss of earning power at the time of their injuries, while still restricting liability to the employer that was liable under § 31-310 at the time the claimant was injured. See Mulligan v. F.S. Electric, 231 Conn. 529, 534-35 (1994).

The Appellate Court disagreed with this board’s conclusion that the calculation used by the trial commissioner in Trankovich inaccurately reflected the claimant’s salary. Trankovich, supra, 631. The Court held that the language of § 31-310 was clear, and that “when statutory language is clear and unambiguous we must presume that it meant what it said.” Id. Without further analysis, the Appellate Court reversed this board’s decision, and reinstated the trial commissioner’s decision.

Based on Trankovich, it is clear that the Workers’ Compensation Commission is powerless to implement modified means of calculating compensation rates in situations where the strict application of § 31-310 reaches an unjust result. Thus, we cannot adopt either of the methods of calculation advanced by the claimant here, as both proposals in some way combine the use of the claimant’s concurrent employment wages from Lindy Farms with the full 33 5/7 weeks of earnings that the claimant realized from his employment with Tomasso. The statute requires that only those wages earned during the period of concurrent employment be factored into the calculation of a claimant’s average weekly wage once the concurrent employment provision is triggered.

However, we also believe that the legislative intent behind § 31-310 is apparent from the following language in the statute: “[w]here the . . . average weekly wage received from the employer in whose employ [the claimant] was injured . . . [is] insufficient for him to obtain the maximum weekly compensation rate from the employer under section 31-309 . . . his average weekly [wage] shall be calculated upon the basis of wages earned from all such employers in the period of concurrent employment . . . .” The legislature has manifestly designed this section to ensure that the claimant receives the compensation warranted by his full range of employment if the wages he receives from the employer in whose employ he was injured do not already provide him with the maximum compensation rate. The plain presumption behind this language is that the claimant would be entitled to more money if his other wages were added to his average weekly wage calculation, which would occur in the vast majority of cases.

Where the circumstances would actually result in a decrease in the claimant’s average weekly wage, however, we do not believe the trial commissioner must apply the concurrent employment statute in calculating the compensation rate. Punishing a claimant for working two jobs is not the goal of the Workers’ Compensation Act or § 31-310. We do not believe that the purpose of the statute requires the word “shall” in § 31-310(a) to be interpreted as a mandatory requirement that the concurrent employment provisions be applied in all cases, no matter what their effect. See Sears, Roebuck & Co. v. Board of Tax Review, 241 Conn. 749, 760-61 (1997). The concurrent employment provisions should be applied only where the claimant’s earning power would be better reflected by the inclusion of the wages from his other jobs.

The trial commissioner’s decision is hereby reversed. The case is remanded to the First District with orders that the trial commissioner disregard the claimant’s concurrent employment wages and the corresponding statutory formula if the claimant does not wish to include them in his compensation rate.

Commissioners James J. Metro and John A. Mastropietro concur.

Workers’ Compensation Commission

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