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Lopa v. Brinker International, Inc.

CASE NO. 5166 CRB-6-06-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 23, 2007

LYNN LOPA

CLAIMANT-APPELLANT

v.

BRINKER INTERNATIONAL, INC.

EMPLOYER

and

LIBERTY MUTUAL INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Matthew E. Dodd, Esq., Dodd, Lessack, Dalton & Dodd, LLC, 700 West Johnson Avenue, Cheshire, CT 06410.

The respondents were represented by Marian Yun, Esq., Law Offices of Rosenbaum & Vollono, 655 Winding Brook Drive, Glastonbury, CT 06033.

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

This Petition for Review from the November 22, 2006 Finding and Award of the Commissioner acting for the Sixth District was heard June 15, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. This appeal concerns the application of the statute on concurring employment. The claimant is employed both at two restaurants as well as by the Postal Service. She sought to have her wages as a postal worker included in the calculation of weekly disability benefits. The trial commissioner concluded that as the federal government is not an employer within the scope of Chapter 568, the claimant’s disability benefits could not be based on what she earned at that job. The claimant has appealed. We agree with the trial commissioner on this issue; we uphold his ruling and dismiss this appeal.

Ms. Lopa’s claim commenced on July 13, 2004 when she injured her back while wiping down a table at the Chili’s Restaurant in Southington, which is owned by the respondent Brinker International, Inc. The parties have stipulated that this was a compensable injury. A hearing was held before the commissioner for the Sixth District on November 21, 2006 to consider the issue of apportionment. In calculating the amount of contribution from concurrent employment as per § 31-310(a) C.G.S.,1 the claimant stated her earnings over the prior four weeks before the accident at Chili’s were $623.47; her earnings at Timothy’s Tavern in Plainville were $710.36, and she had earned $3,842.08 as a postal worker during this period.2 Respondents’ Exhibits 1-3. The claimant sought to include the postal wages as part of the calculation of concurrent employment benefits, the respondent Second Injury Fund opposed this relief.

In his Finding and Award dated November 22, 2006 the trial commissioner determined that the case of Chodkowski v. UTC/Pratt & Whitney, 8 Conn. Workers’ Comp. Rev. Op. 4, 736 CRD-3-88-5 (December 18, 1989) was binding precedent on this issue and prevented the use of wages earned in federal employment in calculating the average weekly wage compensation rate.3 The claimant has appealed asserting that it was error for the trial commissioner to rely on the Chodkowski case. Our analysis indicates that this was a proper reliance by the trial commissioner on the concept of stare decisis.

In Chodkowski the claimant was receiving payments from the U.S. Army Reserve at the time she was injured. We determined that since the federal government is not an “employer” within the scope of Chapter 568, that wages from federal employment could not be used to calculate a compensation rate. We rejected an effort to define the federal government as a “public corporation within the state” for the purpose of concurrent employment, determining “[s]uch an interpretation is inconceivable in the light of two centuries of constitutional law and the problems engendered by federal state relations.” Id. In the present case, the claimant also is seeking to add income from federal employment to her state benefits. Since we find no difference between Ms. Chodkowski’s claim and Ms. Lopa’s, we are compelled to reach the same result. “In Mitchell v. J.B. Retail Inventory Specialists, 3458 CRB-2-96-10 (March 31, 1998) fn.1, we held ‘Stare decisis, although not an end in itself, serves the important function of preserving stability and certainty in the law. Accordingly, ‘a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. Maltbie, Conn. App. Proc., p. 226.’ Herald Publishing Co. v. Bill, 142 Conn. 53, 62 (1955).’” Chambers v. General Dynamics Corp./Electric Boat Division, 4952 CRB-8-05-6 (June 7, 2006).

The claimant offers two arguments for not applying Chodkowski in this matter. She argues the Chodkowski case can be distinguished as dealing with military employment. While both this case and Lemieux v. General Dynamics Corp./Electric Boat Division, 14 Conn. Workers’ Comp. Rev. Op. 383, 2077 CRB-2-94-6 (October 5, 1995) deal with military employees, these decisions do not limit their application to military staffers, and the jurisdictional issues involved are equally applicable to civilians. The claimant also argues that to limit the compensation rate to omit concurrent federal employment would be incompatible with the purpose of our statute as it is “remedial in nature.” We rejected such an effort to look past our jurisdictional limitations based on humanitarian concerns in Bardales v. Christi Cleaning Service Corp., 5053 CRB-2-06-2 (December 21, 2006) and Hudgens v. Goldy’s Restaurant, 4997 CRB-2-05-9 (December 21, 2006). In those decisions we denied the effort of those claimants to include their wages from the Mashantucket Pequot Tribal Nation so as to enhance their compensation award. “The humanitarian purpose of the Act discussed in cases such as Davis v. Forman School, 54 Conn. App. 841, 844-45 (1999), does not provide authority for us to create jurisdiction where it does not exist.” Hudgens, supra. Neither the United States Postal Service nor the Foxwoods Casino are within the jurisdiction of this Commission and we must be consistent in applying the same standard to § 31-310 C.G.S. cases to similar sets of facts.

The claimant will receive far less money per week for her claim than if her concurrent employment had been with a private sector employer. But we must act solely within our jurisdiction. “The commissioner exercises jurisdiction only ‘under the precise circumstances and in the manner particularly prescribed by the enabling legislation.’” Kinney v. State, 213 Conn. 54, 60 (1989). The claimant believes the Second Injury Fund should contribute to concurrent employment awards when the concurrent employer is outside this Commission’s jurisdiction. Our efforts to provide benefits to Judge Kinney’s widow without adequate statutory authority was struck down, and we believe such an effort in this case to enhance the claimant’s award would meet a similar fate. Determining the jurisdictional parameters of this Commission is a policy decision within the exclusive dominion of the General Assembly to consider. “We are also mindful that “[t]he court may not, by construction, supply omissions in a statute or add exceptions or qualifications, merely because it opines that good reason exists for so doing . . . . This is especially so where it appears the omission was intentional. . . . In such a situation the remedy lies not with the court but with the General Assembly.” Walter v. State, 63 Conn. App. 1, 8 (2001), citing Bailey v. Mars, 138 Conn. 593, 598 (1952).4

We therefore uphold the trial commissioner and dismiss this appeal. Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.

1 Section 31-310(a) C.G.S. states in 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 the employee is injured during the fifty-two calendar weeks immediately preceding the week during which the employee was injured, by the number of calendar weeks during which, or any portion of which, the employee was actually employed by the employer, but, in making the computation, absence for seven consecutive calendar days, although not in the same calendar week, shall be considered as absence for a calendar week. When the employment commenced otherwise than at the beginning of a calendar week,. . . . 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 the injured employee was injured, as determined under the provisions of this section, are insufficient to obtain the maximum weekly compensation rate from the employer under section 31-309, prevailing as of the date of the injury, the injured employee’s 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 portion of the compensation rate equal to seventy-five per cent of the average weekly wage paid by the employer to the injured employee, after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contribution Act made from such employee’s total wages received from such employer during the period of calculation of such average weekly wage, 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. For purposes of this subsection, the Second Injury Fund shall not be deemed an employer or an insurer for any claim brought on behalf of an insolvent insurer and shall be exempt from liability, unless such claim is brought not later than thirty days after a determination of such insurer’s bankruptcy. No claim for payment of retroactive benefits may be made to the Second Injury Fund more than two years from the date on which the employer or its insurer paid such benefits in accordance with this subsection. In cases which involve concurrent employment and in which there is a claim against a third party, the injured employee or the employer in whose employ the injury was sustained or the employer’s insurer shall advise the custodian of the Second Injury Fund if there is a third party claim, and the employee, employer or employer’s insurer shall pursue its subrogation rights as provided for in section 31-293 and shall include in its claim all compensation paid by the Second Injury Fund and shall reimburse the Second Injury Fund for all payments made for compensation in the event of a recovery against the third party. BACK TO TEXT

2 The Petition for Review identifies this employer as “J. Timothy’s Tavern.” We do not believe such a possible scrivener’s error impacts the substance of this decision however. BACK TO TEXT

3 Section 31-275(10) C.G.S. states “Employer” means any person, corporation, limited liability company, firm, partnership, voluntary association, joint stock association, the state and any public corporation within the state using the services of one or more employee for pay, or the legal representative of any such employer.” The federal government has been determined not to be within the jurisdiction of this Act as an “employer.” BACK TO TEXT

4 The concept of “legislative acquiescence” indicates we must give Chodkowski, supra, conclusive effect as the General Assembly has failed to amend the statute to change this situation in the 17 plus years since the decision was issued. See Hummel v. Marten Transport, Ltd., 282 Conn. 477, 501-502 (2007) and Hanson v. Transportation General, 245 Conn. 613, 618-619 (1998). BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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