CASE NO. 4426 CRB-8-01-8
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 23, 2002
COMMUNITY HEALTH CENTER, INC.
The claimant was represented by James M. Quinn, Esq., Furniss & Quinn, P.C., Stoneleigh Building, 248 Hudson Street, Hartford, CT 06106.
The respondents were represented by Dominick Statile, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.
This Petition for Review from the July 31, 2001 Finding and Award of the Commissioner acting for the Eighth District was heard April 26, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Michael S. Miles.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the July 31, 2001 Finding and Award of the Commissioner acting for the Eighth District. She contends on appeal that the trier erred by failing to calculate her average weekly wage based upon her employment contract and by failing to include long- term disability benefits in that wage, by finding that she was not totally disabled before October 31, 1999, and by denying her an award for interest and attorney’s fees on the ground of unreasonable contest pursuant to § 31-300 C.G.S. We find no error, and affirm the trial commissioner’s decision.
The following facts were found by the commissioner. The claimant was working for the respondent Community Health Center, Inc., on Friday, August 20, 1999. As per her testimony, she picked up some newspapers that were littering the building entrance that morning on her way into work, and experienced immediate back and leg pain upon bending down. This resulted in a compensable back injury. Though the claimant did not initially think her back problem significant, and did not make an immediate written report, she inquired with a staff physician about obtaining prescribed medication for her back. On that same day, a mercury spill occurred at the Meriden field office, and the claimant was forced to put in more than a full workday given the pivotal role she played in helping to coordinate a response to this incident. Once she arrived home that evening, she found herself barely able to get herself into bed, where she remained through the weekend. Witnesses were able to corroborate this account of her injury.
When her status had not improved by Monday, she called work and talked to the head of the personnel unit, Alea Tajirian-Blyther. They spoke of the mercury spill, the claimant’s inability to work due to her back pain, and her need to see a physician. Tajirian-Blyther created a first report of injury on behalf of her colleague. The claimant saw her primary care physician, Dr. Kellerman, who referred her to Dr. Lange. She had previously seen Dr. Lange when she was diagnosed with a non-work-related brain tumor, which he operated to remove on December 17, 1998. Following that surgery, she had returned to work for her employer on a part-time basis. Through August 20, 1999, she had been receiving wages for that part-time work, and was paid disability benefits by an insurance carrier to make up the difference in pay.1
Though the claimant had suffered from a back problem in the 1970’s, it had generally resolved itself by the time the claimant began working for Community Health Center. Between her December 1, 1997 hire date and August 20, 1999, she had missed no significant time from work due to a back problem. However, she suffered another back condition as a result of her August 20, 1999 injury, which led to periods of disability after that date. Drs. Lange, Druckemiller and Ballon all agreed that the claimant’s problems were substantially due to that incident, and that she needed surgery. Because of her continuing physical challenges and the further complication of her back problem, the claimant submitted her resignation on September 3, 1999, effective as of October 30, 1999. According to the medical records, she was totally disabled beginning some time in the fall of 1999. The claimant underwent back surgery on March 6, 2000, and was released to light duty work by Dr. Lange on August 17, 2000.
After concluding that the claimant’s injury was compensable, the trier found that she was totally disabled from October 31, 1999 through August 17, 2000. He found that her average weekly wage constituted the “actual amounts that the claimant earned from the respondent from 8/20/98 to 8/20/99,” and that it did not include the income from the short-term and long-term disability carrier. Though such benefits were provided for by the claimant’s contract, they were not the equivalent of wages, and were not paid in lieu of the contract amount. The trier also denied the claimant’s request that he make a finding of unreasonable contest, as “the circumstances or lack thereof involving the initial notification of the claim, the resignation and some pre-existing condition issues . . . [were] found to be insignificant, but were gray areas” at the time of trial. The claimant then filed an appeal from that decision, which is now before this board.
As we have explained in many of our past opinions, the role of this appellate board is not to retry the facts of a case by drawing our own inferences from the evidence. Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001). All judgments of evidentiary credibility are left solely to the trial commissioner, who is charged with deciding which of the documentary exhibits and witnesses are the most believable. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). This board may review factual findings only to determine whether there is evidence in the record to support them, and to ensure that the trier has not omitted material facts from his findings that are truly admitted or undisputed. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). As for the legal conclusions drawn from those findings, we may disturb them only if they result from an incorrect application of the law, or from an unreasonably drawn inference. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Mosman, supra.
Two of the three issues raised by the claimant in her appeal are prototypical questions of fact, thereby limiting the degree of scrutiny we may apply on review. With respect to a possible award of attorney’s fees for unreasonable contest under § 31-300, a considerable amount of discretion is necessarily left to the trier to judge whether or not a respondent has reasonably conducted its defense of a particular claim, which may implicate its manner of administering the case generally. Bailey v. State/GHCC, 3922 CRB-2-98-10 (Nov. 30, 1999), aff’d in part, rev’d in part on other grounds, 65 Conn. App. 592 (2001). The trial commissioner here considered the circumstances surrounding the respondents’ denial of this claim, and found that their contest was reasonable given certain gaps in the evidence. Though the claimant may feel strongly that the respondents should have accepted her doctor’s opinion that her injury was work-related and should have begun providing her with medical care much earlier, we cannot override the finding of the trier on review, as he was in a superior position to judge the legitimacy of the respondents’ uncertainties and their motives in conducting their defense of this matter. We say this without taking anything away from the concerns we articulated in Heene v. Professional Ambulance Service, Inc., 3743 CRB-6-97-12 (Jan. 8, 1999)(affirming award of fees for unreasonable contest), where we criticized an insurer for prioritizing its desire to apportion its liability ahead of the immediate medical needs of the claimant.
As for the claimant’s argument concerning the inception date of her total disability benefit award, the trier found that the claimant resigned her position effective on October 30, 1999. The claimant sought to add a corrected finding that she continued to work part-time from her home through that date, and a finding that she was totally disabled from August 20, 1999 forward based upon the medical evidence, which requests were denied by the trier. August 14, 2001 Ruling on Claimant’s Motion to Correct. Notably, she has raised this as a claim for temporary total rather than temporary partial disability benefits, even though she was paid for her part-time work. See Respondents’ Exhibit 1. Citing the opinions of Dr. Ballon and Dr. Lange, who both affirmed that the claimant had been medically disabled from her work since her injury, the claimant contends that she should be paid total disability benefits from that date forward, minus any earnings she might have received through that date. Brief, p. 8.
Though both doctors may have diagnosed the claimant as totally disabled from a medical perspective, the trial commissioner was not required to find that her period of total disability encompasses an interval during which she performed part-time work, even if she did that work out of her home. We tend to agree that an injured worker who remains able to perform some of her job duties cannot fairly be classified as totally disabled within the meaning of § 31-307 C.G.S. See, e.g., Laliberte v. United Security, 4264 CRB-5-00-7 (July 26, 2001), aff’d, 261 Conn. 181 (2002); Osterlund v. State, 135 Conn. 498, 505 (1949). Thus, we have no basis upon which to reverse the trier’s finding that total disability did not commence until after the claimant’s resignation from her job had taken effect.
The third issue raised by the claimant on appeal concerns the calculation of her average weekly wage under § 31-310(a) C.G.S., which provides in relevant part, “[T]he 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 . . . .” The claimant sets forth two objections to the calculation method implemented here by the trier. She maintains that the trier should have computed her average weekly wage based upon her annual contractual salary of $60,000, rather than the wages she actually collected from her employer during the 52 weeks preceding her injury. Alternatively, she argues that her compensation rate should include the value of her disability insurance payments, as her employment contract specified that in the event of work incapacity caused by sickness or accident, she was entitled to salary continuation in accordance with the employer’s disability policy.
The statutory language of § 31-310(a) “could not be clearer” with regard to the requirement that a claimant’s average weekly wage be calculated by adding the total wages received by her during the 52 weeks immediately preceding the week of injury. Trankovich v. Frenish, Inc., 47 Conn. App. 628, 631 (1998). Though a trace of inequity may occasionally appear to arise in situations where the 52-week calculation arguably fails to reflect a claimant’s actual earning power during that time period, this board does not have the authority to disregard the wages actually received by or owed to a claimant whenever it seems that some other barometer of a claimant’s pre-injury earnings would facilitate a result more in keeping with the overall humanitarian spirit of the Workers’ Compensation Act. Heene, supra, citing Trankovich, supra; see also, Ericson v. Perreault Spring & Equipment, 3200 CRB-5-95-11 (April 28, 1997)(profit sharing sums paid annually at year’s end were a substantial part of claimant’s pay, and were allocable to total weeks worked by claimant during the calendar year). Phelan v. Soda Construction Co., 14 Conn. Workers’ Comp. Rev. Op. 389, 2107 CRB-3-94-7 (Oct. 17, 1995)(unpaid wages for weeks immediately preceding injury were included in § 31-310 tabulation of wages received, as they were owed for work already performed).
Here, there is no evidence that the respondents owed the claimant the full balance of her contract amount for the 52 weeks immediately preceding the week of August 20, 1999. Instead, the claimant testified that because of her medical restrictions following her brain surgery, her employer agreed to place her on a part-time work schedule, and that they subsequently began paying her on an hourly basis, which payments the claimant accepted. August 29, 2000 Transcript, pp. 29-30; see also, Respondents’ Exhibit 1 (wage statement). In conjunction with § 31-310(a), the trier correctly based his “average weekly wage” calculation on those paid wages. Perhaps the claimant may have a cause of action based upon breach of contract in a civil forum; we cannot say, as we have no jurisdiction to consider such a matter here based on an analysis of the language of her contract. We do say, however, that regardless of the views expressed in Professor Larson’s treatise, which the claimant cites in her brief, Connecticut law is very clear on this matter: wages constitute only moneys that have been paid, or that remain due and outstanding for past services. We thus find no error in this regard.
As for the claimant’s receipt of disability insurance benefits pursuant to her employment contract, we do not believe that “wages” as used in § 31-310(a) can be reasonably read to include such payments. In contrast to the term “income” as used in § 31-284b(a), the term “wages” is not defined to include insurance and pension benefits. Luce v. United Technologies Corp., 247 Conn. 126 (1998); Pascarelli v. Moliterno Stone Sales, Inc., 44 Conn. App. 397 (1997). Thus, fringe benefits remuneration is not included in the calculation of a plaintiff’s base compensation rate. We note the distinction between fringe benefits and amounts directly allocable to weeks worked by an employee, such as certain profit sharing benefits and bonuses. Ericson v. Perreault Spring & Equipment, 3200 CRB-5-95-11 (April 28, 1997); Yale v. Allegheny Ludlum, 13 Conn. Workers’ Comp. Rev. Op. 275, 1894 CRB-3-93-10 (April 19, 1995). There has been no finding made that the claimant’s disability insurance payments were in that sense correlated with the number of hours she had worked; rather, the claimant explains in her brief that upon completing one year of service, she was entitled to salary continuation pursuant to her employer’s disability policy if she became unable to perform her duties. Such a fringe benefit is not part of the wage calculation under § 31-310(a), and the trier did not err in excluding said benefit from the claimant’s compensation rate.
The trial commissioner’s decision is accordingly affirmed.
Commissioners Donald H. Doyle, Jr. and Michael S. Miles concur.
1 On December 1, 1997, the claimant signed a two-year contract with her employer calling for a $60,000 annual salary. The contract also provided for disability insurance in the event of incapacity. BACK TO TEXT