State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Pellegren v. Pratt & Whitney

CASE NO. 4196 CRB-1-00-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 29, 2001

MICHAEL PELLEGREN

CLAIMANT-APPELLEE

v.

PRATT & WHITNEY

EMPLOYER

and

AIG CLAIM SERVICES, INC.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Mark Merrow, Esq., 769 Saybrook Road, Middletown, CT 06457.

The respondents were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

This Petition for Review from the February 9, 2000 Finding and Order of the Commissioner acting for the First District was heard October 27, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the February 9, 2000 Finding and Order of the Commissioner acting for the First District, as corrected by the trial commissioner on February 20, 2000.1 They contend on appeal that the trier erroneously calculated the claimant’s temporary partial disability compensation rate pursuant to § 31-308(a) C.G.S. by failing to apply the maximum compensation rate in the proper manner. We find no error in the method adopted by the trial commissioner, and affirm his decision.

The claimant sustained compensable injuries to his lower back and right leg on October 7, 1998. As a direct result of those injuries, he remains restricted to light-duty work. His employer has since provided such work for the regular 40-hour workweek. Also, during some weeks, overtime has been made available to other, full-duty employees, but not to the claimant. Prior to his injury, the claimant worked all overtime offered. This board has held that a claimant’s § 31-308(a) [or § 31-308a] partial disability benefits may take into account such overtime pay in this type of situation. Goodwin v. Stop & Shop, 13 Conn. Workers’ Comp. Rev. Op. 301, 1830 CRB-3-93-9 (April 21, 1995). Thus, the trial commissioner chose to include overtime in the wage calculation. That aspect of his ruling has not been challenged on appeal.

Indeed, the issue before us is quite limited. It concerns the correct technique that one uses in calculating benefits under § 31-308(a), which entitles a partially incapacitated claimant to seventy-five percent of the difference between the after-tax wages currently earned by an employee in a position comparable to the position held by the injured employee before his injury, and the after-tax amount the claimant is able to earn after the injury. Section 31-308(a) also limits compensation to “one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309 . . . .” The sole question before us on review is, at what stage of the calculation is this maximum compensation rate introduced into the financial equation?

The trial commissioner adopted the following approach to calculating the claimant’s wage differential benefits. First, he noted the number of hours of lost overtime in a given week and the relevant hourly pay rate. For example, in the first week, the claimant lost 16 hours of overtime at $20.60 per hour. Next, the trier listed the amount the claimant was able to earn—$824.00 in week one—and the compensation rate that would apply based on that figure—in week one, $514.95. Following that, he noted the amount of wages earned by an employee in a position comparable to that held by the claimant before his injury—for week one, $1153.60, including overtime pay—and the compensation rate that would be derived from that amount under § 31-308(a)—for week one, $688.33. He then listed two proposed compensation rates: the claimant’s proposal ($173.38 for week one), and the respondent’s proposal ($113.05). The claimant’s amount simply reflects the difference between $688.33 and $514.95, while the respondent took the position that the § 31-309 maximum weekly wage of $628.00 should have been invoked as a cap on the $688.33 figure that was used as the minuend2 in the last step of the claimant’s equation. The trier ruled that the claimant’s calculation method was correct, and that his benefit rate should be 75% of the difference between the two adjusted gross income figures, provided that said difference did not exceed the maximum compensation rate of $628.00. The respondent has appealed that ruling to this board.

Taken alone, § 31-308(a) is unambiguous regarding the application of the maximum compensation rate to a temporarily partially disabled claimant. The law states that such an employee’s weekly compensation shall be equal to 75% of the difference between (a) “the wages currently earned by an employee in a position comparable to the position held by the claimant before his injury, after such wages have been reduced by and deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310,” and (b) the similarly tax-adjusted amount that the claimant is able to earn following his injury. Later, the statute adds a caveat that “compensation paid under this subsection shall not be more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309 . . . .” It would appear difficult to argue that the maximum rate set by § 31-309 should somehow factor into the process of determining the weekly wage before 75% of the actual wage difference has been figured by completing the mathematics in § 31-308(a)’s formula. As the Workers’ Compensation Act is remedial legislation, and “is to be broadly construed to effectuate the purpose of providing compensation for an injury arising out of and in the course of the employment;” Mingachos v. CBS, Inc., 196 Conn. 91, 97 (1985); we are quite reluctant to ignore such clear language in order to apply a more restrictive approach to calculating benefits.

Nevertheless, the respondent contends that an alternative approach is in fact required by the law. It rests its argument on the portion of the formula in § 31-308(a) that references § 31-310 C.G.S, which in turn provides, in relevant part:

(b) Each August fifteenth, the chairman of the Workers’ Compensation Commission, in consultation with the advisory board, shall publish tables of the average weekly wage and seventy-five per cent of the average weekly wage after being reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act, to be effective the following October first . . . . Such tables shall be conclusive for the purpose of determining seventy-five percent of the average weekly earnings of an injured employee after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act made from such employee’s total wages received during the period of calculation of the employee’s average weekly wage for purposes of sections 31-306, 31-307 and 31-308.

According to the respondent, the conclusive nature of these weekly benefit tables makes it mandatory for the trial commissioner to apply them whenever § 31-308(a) benefits are being calculated. These tables allegedly do not permit temporary partial disability calculations using figures that exceed the maximum compensation rate of $628.

In the weekly benefit tables for October 1, 1998 through September 30, 1999, each page contains a heading reminding the reader, “Compensation rate for temporary partial and permanent partial compensation cannot be more than $628.00. Compensation for temporary total cannot be more than $764.00.” Because of this restriction, the respondent contends that the minuend in a temporary partial claim should never be greater than $628 (for an October 7, 1998 injury). The respondent asserts that the claimant’s proposed calculation improperly employs temporary total rates rather than temporary partial rates in order to utilize figures such as $688.33, which is the weekly benefit amount derived from the $1153.60 wages earned from a “comparable position,” including overtime pay, during the first week of the claimant’s disability. (See above.)

Further, the respondent notes that the first paragraph of the instructions on page two of the tables directs the reader to “[c]alculate the employee’s average gross weekly wage” pursuant to § 31-310, and then to locate it in the appropriate column of the tables. The respondent objects that the claimant is attempting to inject a figure other than the average weekly wage into the tables by employing his advocated method of benefit calculation. Respondent’s Brief, p. 5. “[T]he policy behind maximum compensation rates [serves] to phase out loss of earning capacity benefits for a worker who approaches wages in excess of that which the legislature required as sufficient and certain compensation during incapacity.” Id., 5-6.

These arguments are not persuasive. The weekly benefit tables designed by this Commission are conclusive where applicable, but the tables also contain instructions that may be used to calculate taxable weekly wages, federal and state deductions, and weekly workers’ compensation benefits in the event that the tables themselves are insufficient. We have held that the tables do not apply to employees who do not have FICA deductions withheld from their wages; Donahue v. Southington, 4136 CRB-6-99-10 (Nov. 30, 2000); and have cited the legislative history of § 31-310(b) showing that the legislature rejected a bill that would have made use of the tables mandatory for all employees, including those who did not have deductions withheld from their wages. Id., citing 36 H.R. Proc., Pt. 18, 1993 Sess., p. 254-55. The legislature’s rejection of that bill (H.B. 6939) is indicative of its appreciation that some situations might not be covered by the tables, and its recognition that this Commission would devise appropriate calculation methods when such incidences arose. Indeed, this agency issued a memorandum on November 22, 1996, setting forth manual formulas for calculating compensation rates for weekly wages that are not modified by FICA deductions.

There is little reason to suspect that an opposite approach should be adopted here in the case of temporary partial disability calculations that happen to involve numbers exceeding $628 per week. Section 31-308(a) concerns itself with the differences between the amount an employee is able to earn before and after an injury. See, e.g., Heene v. Professional Ambulance Service, Inc., 3743 CRB-6-97-12 (Jan. 8, 1999). A wage-loss differential may present a real-life problem for any worker. Many people live at or near the edge of their means, and a long-term reduction in income can have a profound effect whether someone is earning $500 per week following his injury, or $2000 per week. It is not our place to infer that the legislature did not care about higher-income individuals because it created maximum compensation rates; § 31-309 functions primarily to protect employers from having to pay more than the maximum weekly wage to any given employee. The protection that it affords the respondent is not lost in this case, as the claimant would be unable to collect more than $628 per week regardless of the amount of wages that he lost because of his injury. Vincent v. New Milford, 8 Conn. Workers’ Comp. Rev. Op. 27, 30, 761 CRD-7-88-8 (Feb. 5, 1990). Therefore, we see no reason to overturn the trial commissioner’s use of the claimant’s benefit calculation method.

The trier’s decision is affirmed. Insofar as any benefits due have remained unpaid pending the outcome of this appeal, interest is awarded as required by § 31-301c(b).

Commissioners Robin L. Wilson and Leonard S. Paoletta concur.

1 The initial appellant in this case was the claimant, who petitioned for review from the trier’s Finding and Order on February 16, 2000. The claimant then filed a Motion to Correct with the trial commissioner, which was granted in its entirety on March 28, 2000. In response to the Motion to Correct, which was initially filed on February 16, 2000, the respondents filed their own petition for review on February 23, 2000, as a cross-appellant, and also filed their own Motion to Correct. Following the granting of the claimant’s requested corrections (and the denial of the respondents’ contradictory correction), he withdrew his appeal on April 13, 2000. BACK TO TEXT

2 In the mathematical process of subtraction, the subtrahend is subtracted from the minuend, leaving a remainder for the difference. Thus, in the equation “12–8 = 4”, twelve would be the minuend, eight the subtrahend, and four the remainder. We also observe that it makes no difference whether one multiplies both the minuend and the subtrahend by 75% prior to subtracting the latter from the former, or whether one waits until afterward, and then multiplies the remainder by 75%. Thus, 75% of twelve, or nine, minus 75% of eight, or six, would be equal to three; likewise, twelve minus eight is four, and 75% of four is also three. BACK TO TEXT

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