State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Netto v. City of Derby

CASE NO. 4535 CRB-4-02-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 2, 2003

JOHN NETTO

CLAIMANT-APPELLEE

v.

CITY OF DERBY

EMPLOYER

and

MASTERCARE

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Barbara L. DeGennaro, Esq., P.O. Box 834, Derby, CT 06418.

The respondents were represented by Joseph Passaretti, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The Second Injury Fund was represented by Richard Hine, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the May 28, 2002 Finding and Award of the Commissioner acting for the Fourth District was heard December 20, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The Second Injury Fund has petitioned for review from the May 28, 2002 Finding in Support of C.G.S. § 31-310 Order by the Commissioner acting for the Fourth District. It contends on appeal that the trial commissioner erred by ruling that the claimant, an unpaid supernumerary police officer candidate who was injured in the course of his training, was considered an employee of the town within the meaning of Chapter 568, thereby entitling him to compensation from the Fund based upon his concurrent employment wages. We find partial error, and affirm the trial commissioner’s finding regarding an employment relationship, while reversing the order regarding the calculation of benefits.

The claimant, a full-time police officer for the city of Derby, began his police academy training on January 19, 1999. He suffered an injury to his knee on March 30, 1999, during the course of that training. At the time, he was attending the academy on a part-time basis as a candidate to be a supernumerary1 police officer, and was not being paid any wages. He did not yet have the authority to act as a supernumerary police officer, and to date has never served in that capacity. The city and its insurer accepted the injury as compensable, and entered into a voluntary agreement with the claimant that was approved on August 18, 1999.

As the claimant was concurrently employed as an electrician with Acme Electric Company at the time of his injury, with an average weekly wage of $1,010.75, he sought compensation accordingly under § 31-310 C.G.S. Because he was earning no wages from the city of Derby, the claimant’s average weekly wage was listed as zero, with 100% of the concurrent wage responsibility assigned to the Second Injury Fund. The respondent insurer presented a Form 44 to the Fund on December 13, 1999. In the proceedings below, the trial commissioner declined to open the voluntary agreement. He found that the claimant was an employee of the city at the time of his March 30, 1999 injury, and ordered that the Form 44 be approved and that the Fund accept responsibility for $5,742.70 in indemnity benefits that were paid to the claimant. The Fund has filed an appeal from that decision, and from the denial of its Motion to Correct.

Whether or not a claimant is an employee at the time of an injury is normally considered a question of fact for the trial commissioner to determine, based upon the trier’s assessments of evidentiary credibility and the circumstances of the particular case in dispute. Malchik v. State/Div. of Criminal Justice, 4455 CRB-2-01-11 (Oct. 23, 2002); Merlin v. Labor Force of America, Inc., 3920 CRB-4-98-10 (Dec. 22, 1999), aff’d, 62 Conn. App. 906 (2001)(per curiam) cert. denied, 256 Conn. 922 (2001). An employment relationship may exist only where the employer retains the right to control the means and methods of a putative employee’s work, including the mode and manner by which the service is performed for the employer. Hanson v. Transportation General, Inc., 45 Conn. App. 441, 446 (1997), aff’d, 245 Conn. 613 (1998); Balogh v. F.J. Dahill Co., 4267 CRB-7-00-7 (July 2, 2001). The main statutory definition of “employee” is found in § 31-275(9)(A)(i), which includes “any person who has entered into or works under any contract of service or apprenticeship with an employer, whether the contract contemplated the performance of duties within or without the state.” An “employer” is defined by § 31-275(10) as an entity that uses the services “of one or more employees for pay.”

Early in the history of our Workers’ Compensation Act, our Supreme Court determined that a regularly appointed member of a city fire department was not an employee of the city because, as a governmental officer appointed to do governmental work, his employment did not arise through contract. McDonald v. New Haven, 94 Conn. 403 (1920).2 The legislature responded to that holding by enacting language that included in the definition of employee “any salaried officer or paid member of any police department or fire department of any municipal corporation in the state.” 1921 Public Acts, Chapter 306, § 11. As it stands today, the definition of “employee” expressly includes several categories of (potentially) non-contractual government employees: salaried officers of any police or fire department; volunteer police officers, whether they be designated as special or auxiliary; and elected or appointed officials or agents of any town, city or borough. Section 31-275(9)(A)(iv)-(vi). Supernumerary policemen demonstrably fall within that definition, insofar as they draw pay, and as § 31-310a prescribes a method of calculating the compensation rate of such an officer based upon the average weekly earnings of production and related manufacturing workers in the state (with no proration of that rate allowed because of other employment). We note that the compensation rate is similarly set for volunteer officers under § 31-310a(c).

The question we must resolve here is whether any of these categories of “employee” can reasonably be construed to include the claimant, who was injured while participating in a training program to become a supernumerary police officer. The trial commissioner concluded that such a trainee could be an employee. He reached this conclusion despite finding that the claimant was not being paid any wages pending completion of his training, and that he had not been “hired, duly sworn, employed or otherwise vested with the authority to act as a supernumerary police officer, and had no powers, privileges or compensation pertaining thereto.” Findings, ¶ 9.

The most salient evidence in the record that supports a finding of an employment relationship is a March 14, 2000 letter from Derby Police Chief Andrew Cota, who explained that the claimant was attending a part-time police academy class at the time of his injury that met two evenings per week. “He was a police officer candidate at the time. He had been offered a part-time supernumerary job upon completion of his graduation and field training. He was not receiving any pay during this training, and would not until he completed the academy, at which time he would be hired as a part time officer with the pay rate of a part time officer. He was working his regular job during this time period. If he had been at the full time training academy and was being hired as a full time police officer he would have received pay during full time training at a full time officer’s rate.” Respondent’s Exhibit MC-5 (emphasis added). The training program application signed by the claimant and Chief Cota on January 19, 1999 also represented that “said candidate is currently covered by the Workers’ Compensation policy for the town/city of Derby, and meets all POSTC entry level requirements/standards.” Id.

In his deposition, Chief Cota explained that the claimant “was actually going to be a supernumerary part-time police officer, and he was attending a part-time POST, which is the police academy school, at the same time.” Respondent’s Exhibit 2, pp. 18-19 (emphasis added). Although the claimant’s position was not reflected in the city police department budget insofar as he did not yet draw pay or accumulate sick and vacation time, it was the city’s understanding that part-time candidates had to be covered by workers’ compensation insurance in order to participate in training at the Connecticut State Police Academy. Id., pp. 29-31. One could reasonably infer from this evidence that the claimant was more than an enrolled student or trainee who hoped to obtain employment in the field of his study. Rather, he had been accepted as a supernumerary police officer for the city of Derby subject to his completion of the requisite training—training that would not have been provided absent this expectation of employment upon qualification. This strengthens the basis for an inference that an employment relationship had commenced between the parties at the time of the claimant’s injury, even though he was still in training for the supernumerary position.

In attempting to show that the claimant is not an “employee” under the Act, the Fund cites several statutes in which a legal entitlement to workers’ compensation benefits has been established despite the lack of a contract of employment for pay. Along with § 31-310a, which as noted above covers supernumerary and volunteer police officers, the Fund calls our attention to § 7-314a, § 7-314b, § 7-322a and § 7-322b (volunteer firemen, ambulance personnel, and emergency medical technicians), § 28-14 (auxiliary police, fire or other civil preparedness forces), and § 29-22 (volunteer police auxiliary forces). It is correctly observed that the claimant does not fall into any of these categories, for he was not in training to become a volunteer, a firefighter, an EMT, or a member of the state civil defense corps. The Fund maintains that, if the legislature had intended to cover unpaid students who were training for municipal police departments in the hope of being hired, it would have enacted legislation similar to that in § 7-314a and § 7-314b, which explicitly protect both trainees for volunteer fire duty and active volunteer firefighters. Section 28-14 and § 29-22 also cover individuals on auxiliary state police and civil preparedness duty, or in training for such duty.

We acknowledge the recognized legal principle of expressio unius est exclusio alterius, which counsels that “the expression of one thing is the exclusion of another.” Gay & Lesbian Law Students v. Bd. of Trustees, 236 Conn. 453, 476 (1996), quoting Black’s Law Dictionary, 6th Ed. (1990). This principle has been applied to the definition of “employee,” insofar as our Supreme Court has held that the legislative history behind the evolution of that definition suggests that the express inclusions enumerated in § 31-275(9) are meant to be exclusive. Kinney v. State, 213 Conn. 54, 63 (1989)(Superior Court judges are not included within the definition of “employee”). There, the Court explained that our legislature responded to the Court’s 1921 holding that a municipal firefighter was not a contractual employee in McDonald, supra, by specifically amending the definition of “employee” to “bypass the decisional law for a specific category of public positions. . . . Each subsequent addition to the category of public positions evinces an intention on the part of the legislature carefully to circumscribe the expansion of named beneficiaries.” Kinney, supra (citations omitted). Public officers whose job classifications are not encompassed by the language of § 31-275(9) would not be covered under the Act.

However, the legislature’s specific inclusion of trainees in §§ 7-314a, 7-314b, 28-14 and 29-22 need not imply that trainees for other law enforcement positions must be excluded from the category of “employee.” The volunteer firefighter and civil preparedness statutes are not part of the Workers’ Compensation Act, and did not begin to come into existence until the early 1950’s. It would be unrealistic to assume that the language used in drafting those statutes was intended to affect our construction of a comprehensive statutory scheme that preexisted said statutes by over thirty years. The Act contains no general statutory definition that precludes a person in training from being considered an employee, nor is there a judicially-defined policy in Connecticut workers’ compensation case law that establishes such a boundary. As long as the requisite employment relationship between the parties can be identified under § 31-275(9), this Commission has jurisdiction to preside over the case.

The record contains evidence sufficient to establish that the city of Derby had accepted the claimant’s application for the position of supernumerary police officer, and subsequently began to put him through the training necessary to prepare him for such service. Logically, it would be inconsistent to say that the claimant was not an employee of the town during the period of his training, which was part and parcel of the job. Though the claimant may not have been receiving any monetary compensation during the period of his police academy training, he was receiving the benefit of the training itself (which apparently was provided at the Meriden Police Academy paid for by the state, according to the testimony of Chief Cota). Respondent’s Exhibit 2, pp. 38-39. The city had the right to control the means and methods of the training required (whether or not actual control was ceded to the Meriden Police Academy in this case), including when and where the claimant had to be, as well as his required training activities and the manner in which that training had to be accomplished. The claimant was also using equipment provided by the city, including a firearm, a holster, a baton and handcuffs. Respondent’s Exhibit 2, pp. 34-35. Based on this evidence, the trier reasonably held the claimant to be an employee of the city of Derby during his part-time police academy training within the meaning of § 31-275(9)(A)(iv) and/or (vi) (covering, respectively, paid members of police departments and appointed officials of towns). See Mathurin v. Putnam, 136 Conn. 361, 368 (1950)(plaintiff was “duly appointed supernumerary officer of the police department,” employed by city).

Having so reasoned that the claimant was employed by the city of Derby at the time of his injury, we turn to the issue of his compensation rate. Though the claimant was not yet engaged in duties as an active supernumerary policeman at the time of his injury, the underlying employment relationship between him and the town commenced when he was accepted for such a position and began the requisite training. Thus, he must be considered a supernumerary policeman within the meaning of § 31-310a, which sets the average weekly wage of such an officer as the average weekly earnings of production and related workers in manufacturing in the state at the time of injury, and prohibits compensation from being prorated because of other employment. The fact that the claimant was not yet earning wages as a supernumerary police officer does not relieve the city of the responsibility to pay compensation under that statute. We therefore remand this matter so that the trier may calculate the claimant’s compensation rate according to the formula in § 31-310b, and issue an order accordingly.

The trial commissioner’s decision is thus affirmed in part, and reversed in part with an order that further proceedings be conducted in regard to the applicable compensation rate.

Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.

1 The claimant explains in his brief, “Supernumerary police officers have all of the same powers as full-time police officers, with the only difference being that they work part-time.” Brief, p. 2. This description was corroborated by the testimony of the Chief of Police of the City of Derby. Respondent’s Exhibit 2, p. 14. The word “supernumerary” is defined by the American Heritage Dictionary, 2nd Ed., as “Exceeding a fixed, prescribed or standard number; extra.” BACK TO TEXT

2 The caselaw of this state distinguishes public officers from public employees who work under contracts of service. Kinney v. State, 213 Conn. 54 (1989); Sibley v. The State, 89 Conn. 682 (1915). A public office “is a trust conferred by public authority for a public purpose, and involving the exercise of the powers and duties of some portion of the sovereign power,” as distinguished from a mere employment resting on contract, to which such sovereign functions are not attached. State Ex. Rel. Stage v. Mackie, 82 Conn. 398, 401 (1909). Because police officers and firefighters are “engaged in a public, governmental act for the public good;” McDonald v. New Haven, 94 Conn. 403, 411 (1920), and act as preservers of the public peace, they are more than the hired servant of a master, and are free to resign from duty without exposing themselves to actions for breach of contract. Id., 411-12. BACK TO TEXT

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