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Kazo v. Town of Seymour

CASE NO. 4658 CRB-5-03-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 31, 2004

SANDRA J. KAZO

CLAIMANT-APPELLEE

v.

TOWN OF SEYMOUR

RESPONDENT-APPELLANT

and

MATHOG & MONIELLO

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Christopher Hankins, Esq., 21 Oak Street, Hartford, CT 06106.

The respondent was represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the March 27, 2003 Finding and Award of the Commissioner acting for the Fifth District was heard November 21, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent, Town of Seymour, has appealed from the March 27, 2003 Finding and Award of the Commissioner acting for the Fifth District. We reverse the decision of the trial commissioner.

The pertinent facts are as follows. The claimant, while in the course and scope of her employment as a schoolteacher with the respondent, sustained a compensable injury to her left knee and back on September 20, 2000. The claimant was paid an annual salary of $40,027 for the school’s calendar year of September 2000 through June 2001. The claimant was previously paid $36,189 for the school’s calendar year of September 1999 through June 2000. The claimant chose to receive her salary based on the 44 weeks she worked, as opposed to the 52 weeks in the year, which were covered by the contract. The trial commissioner found under § 31-310 the claimant’s compensation rate is determined by dividing her earnings during the 52 weeks prior to the date of her compensable injury on September 20, 2000 by 44, the number of weeks she actually worked for the respondent. This would exclude the eight weeks the claimant was on vacation during the summer. The trial commissioner relied on Trankovich v. Frenish, 47 Conn. App. 628 (1998).

Section 31-310(a) states in pertinent part, “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 . . . .” (Emphasis added).

The trial commissioner primarily looked to the case of Trankovich v. Frenish, Inc., 47 Conn. App. 628 (1998) when he determined the claimant’s wages should be divided by 44 weeks, instead of 52 weeks. In Trankovich, the claimant was injured at a company she had been working as an E.M.T. at full time for four months. Prior to that, she had worked at that job part-time, and had also worked part-time doing computer work for a different company. The appellate court found the claimant could not disregard her prior eight months of part-time work as an E.M.T., nor could she consider the computer work as concurrent employment under § 31-310. The appellate court stated that the language of § 31-310 clearly mandated calculating the total wages the claimant received as an E.M.T. during the prior 52 weeks. The use of any other calculation would be improper.

The trial commissioner cited Trankovich for the proposition that a trial commissioner cannot deviate from the clear language of § 31-310 in order to avoid a perceived inequity that would result from strict adherence to the statutory formula. Williamson v. Genesis Elder Care Corp., 4547 CRB-5-02-7 (July 29, 2003); Prescott v. Community Health Center Inc., 4426 CRB-8-01-8 (August 23, 2002). However, at issue here is whether the claimant teacher was actually employed for 52 weeks or 44 weeks for purposes of this statute. In order to correctly calculate the average weekly wage under the statute, we must first determine whether the claimant was actually employed by the respondent for 44 weeks or 52 weeks. This determination is straightforward here as there is a reference to the claimant’s employment status in the parties’ stipulation of facts dated November 4, 2002.1 In paragraph five of the stipulation it states, “The claimant was a school teacher and was paid an annual salary of $40,027 for the school calendar year of September 2000 to June of 2001 and was previously paid a total of $36,189 for the school calendar year from September 1999 through June of 2000.” As the parties stipulated that her salary was annual, it is clear that it was intended to cover the year, or 52 weeks. Therefore, the claimant’s total wage figure must be divided by 52, not 44. Additionally, we note that this board is aware of no collective bargaining agreement that fails to extend a teacher’s benefits through the summer vacation months.2

Therefore, we reverse the March 27, 2003 Finding and Award of the Commissioner acting for the Fifth District.

Commissioners George A. Waldron and Ernie R. Walker concur.

1 We note that it is the preferred practice for a trial commissioner to incorporate a stipulation of facts into his or her findings. span class="back">BACK TO TEXT

2 We also note one other case in which this board considered a related but distinguishable issue. Cf. Sweeney v. Waterbury, 10 Conn. Workers’ Comp. Rev. Op. 240, 1225 CRD-5-91-5 (January 7, 1993). Sweeney involved a teacher who elected to take her annual salary in 22 equal installments paid between September and June. She suffered a compensable injury in December. The trial commissioner divided her annual salary by 52 in order to determine her average weekly wage. We said that the clear meaning of the statute dictated that we consider only the wages the claimant received during the preceding twenty-six week period, despite the fact that the computation utilized by the trial commissioner more clearly represented the claimant’s annual salary. Although not specifically addressed in Sweeney, there is an underlying notion that teachers are actually employed during the summer months, insofar as we divided the weekly average wage by 26, which would include summer vacation weeks, during which the claimant was not at school. Also cf. Arnold v. Tolland Board of Education, 10 Conn. Workers’ Comp. Rev. Op. 235, 1220 CRD-2-91-4 (January 7, 1993). span class="back">BACK TO TEXT

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