State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Garvey v. Atlas Scenic Studios Limited et al.

CASE NO. 5493 CRB-4-09-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 14, 2012

JUSTIN T. GARVEY

CLAIMANT-APPELLEE

v.

ATLAS SCENIC STUDIOS LIMITED

RING OF FIRE, LP

EMPLOYERS

and

PEERLESS INSURANCE

CHUBB & SON

INSURERS

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by William T. Shea, Esq., Shea & Cook, P. C., 290 Pratt Street, PO Box 1856, Meriden, CT 06450.

The respondents Atlas Scenic Studios and Peerless Insurance were represented by Vincent DiPalma, Esq., Law Offices of Loccisano, Turret & Rosenbaum, 101 Barnes Road, 3rd Floor, Wallingford, CT 06492.

The respondents Ring of Fire, LP and Chubb & Son were represented by Michael Vocalina, Esq., Cotter, Cotter & Mullins, 6515 Main Street, Suite 10, 2nd Floor, Trumbull, CT 06611.

The respondent Second Injury Fund was represented by Michael Belzer, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, PO Box 120, Hartford, CT 06141-0120.

This Petition for Review1 from the August 10, 2009 Finding and Award/Finding and Dismissal of the Commissioner acting for the Fifth District was heard February 25, 2011 before a Compensation Review Board panel consisting of Commissioners Scott A. Barton, Christine L. Engel and Stephen B. Delaney.

OPINION

SCOTT A. BARTON, COMMISSIONER. The present appeal requires this tribunal to deal with issues related to concurrent employment and the date in which an average weekly wage calculation should occur. The appellant Second Injury Fund (the “Fund”) asserts error on the part of the trial commissioner in how she resolved these issues. We find one error on the part of the trial commissioner. We believe that the case of Mulligan v. F. S. Electric, 231 Conn. 529 (1994) cannot be distinguished on the facts from the present case. We affirm the trial commissioner on all other issues. The matter is remanded for a new calculation as to average weekly wage in accordance with the precedent in Mulligan, supra.

The trial commissioner found the following facts and reached the following conclusions at the end of the formal hearing. She noted two witnesses testified, the claimant and Matthew Maraffi, Associate Production Supervisor for Ring of Fire LP, which was one of the claimant’s employers. The claimant testified that he was working in the course of his employment with Atlas Scenic Studios (“Atlas”) on January 3, 2006. Atlas was a firm that provided sets to theatrical productions and the claimant was employed in building sets and loading them on a truck. On that date the claimant said he was also employed by Ring of Fire LP (“Ring of Fire”) to serve in a supervisory capacity. On January 3, 2006 the claimant injured his right hand while carrying an 18-foot platform weighing approximately 1,500 pounds with several other workers onto the truck.

Matthew Maraffi testified that the claimant’s job responsibilities for Ring of Fire included the supervision of the sets to be sure that they were built according to plan. Mr. Maraffi stated he communicated via telephone with the claimant during the loading to confirm that the sets were being loaded in the order he required and the claimant would call out the order to the workers who were physically loading the sets. Mr. Maraffi stated that there was a clear difference between the job the claimant was doing for Atlas and what he was doing for Ring of Fire. The claimant testified he injured his hand when he was performing his responsibilities to Atlas of physically loading one of the platforms onto the truck at the Atlas Studio. The claimant filed a Notice of Claim (Form 30-C) against Atlas which was received at the Workers’ Compensation Commission on June 22, 2006. The claim form did not cite Ring of Fire as an employer and no claim was filed by the claimant against Ring of Fire.

The claimant continued to work at Atlas and Ring of Fire as well as for other theatrical companies, including but not limited to, Avenue Q, LLC (“Avenue Q”) from January 6, 2006 through August 29, 2006 and did not lose any time from work. He continued to have hand problems and testified he was treated by Dr. Lawrence Kirwan. The claimant did not lose any time from work at all until August 30, 2006 when he underwent right hand surgery. This surgery was authorized and paid for by Atlas. At the time the claimant was disabled he was working exclusively for Avenue Q. The claimant was totally disabled following surgery from August 29, 2006 through November 26, 2006. The trial commissioner noted Atlas accepted the claim and issued Voluntary Agreements. These agreements were based on an average weekly wage based on concurrent employment of $2,349.38, with a resulting compensation rate for total disability at $1,005.00 per week. The claimant never signed these Voluntary Agreements and they were not submitted to the Commissioner for approval. These Voluntary Agreements had a calculation that Atlas’s portion was approximately 13.7 weeks of temporary total benefits at $445.98, a total of $6,119.33.

The claimant testified that he was married and had two dependent children. He was released to light-duty during the period from November 27, 2006 through January 7, 2007. Atlas filed a Form 36 which was received by the Workers’ Compensation Commission on December 13, 2006 for light-duty pursuant to claimant’s treating physician. This form was approved as of date of receipt. The claimant testified that when he returned to work he worked light-duty with Avenue Q only because Atlas did not have light-duty work available. The claimant submitted his wages from Avenue Q, LLC from January 2, 2005 thru September 3, 2006 (Claimant’s Exhibit A) and November 27, 2006 through January 7, 2007 (Claimant’s Exhibit B).

The trial commissioner noted the relevant provisions of § 31-310 (a) C.G.S.2 and two Connecticut Supreme Court cases, Mulligan, supra., and Rousu v. Collins Co., 114 Conn. 24 (1931). In considering the evidence she found the claimant credible, particularly on the issue as to whether there was a difference in the work he performed for Atlas and the work he performed for Ring of Fire, she found the claimant’s work for Ring of Fire was supervisory in nature. As the claimant’s injury occurred when he was physically loading a truck the trial commissioner found the claimant injured his hand while in the course of his employment as a carpenter with Atlas on January 3, 2006.

The trial commissioner further considered the issue of the claimant’s post-injury employment. She noted that the claimant had not sought benefits from Ring of Fire and did not lose any time from work between the date of injury and August 29, 2006, and had worked for Atlas, Ring of Fire and Avenue Q in this period. The claimant was totally disabled following surgery from August 29, 2006 through November 26, 2006. Upon the claimant’s return to work he returned to work with Avenue Q only on November 27, 2006 because Atlas did not have any light-duty work available. Due to the relatively short lapse of time (6 1/2 months between the date of injury and the date of incapacity) in this case the trial commissioner found the Mulligan case, where there was a two year time period between injury and incapacity, factually distinguishable from the present case. The trial commissioner therefore determined that the claimant’s average weekly wage should be calculated based on the 26 weeks prior to the date of injury. The trial commissioner concluded that on that date the claimant was concurrently employed, and therefore the claimant’s temporary total and temporary partial benefits were to be paid by Atlas and the Second Injury Fund, pursuant to § 31-310 C.G.S. All claims against Ring of Fire were dismissed.

The Second Injury Fund filed a motion to reopen the Findings and a Motion to Correct. Both Motions were denied by the trial commissioner. The Second Injury Fund filed a Petition for Review dated September 6, 2009 which was received at the Commission on September 9, 2009. The Fund filed its Reasons for Appeal on September 9, 2009. The insurer for Ring of Fire, Chubb and Son, filed a Motion to Dismiss this appeal as untimely. As we must consider such a challenge to jurisdiction prior to considering the merits of the appeal we must decide this motion first.

Chubb argues that since the Finding and Award was issued on August 10, 2009 the Fund’s appeal documents are jurisdictionally invalid as they were not filed within twenty days of that decision in accordance with § 31-301(a) C.G.S.3 The Fund argues that as they filed a Motion to Reopen during the twenty day period, this motion serves to toll the appeal period and an appeal is timely if it commenced within twenty days of the decision rendered on this motion. We believe the “plain meaning” of the statute, see § 1-2z C.G.S., is more consistent with the Fund’s position on jurisdiction. We deny the Motion to Dismiss.

We now consider the merits of the Fund’s appeal. The Fund bases its appeal on two primary arguments. The first argument was that the claimant must be deemed to have been concurrently employed at the precise time of his injury, and therefore Ring of Fire must be deemed equally liable for the compensation due the claimant. The second argument is that the trial commissioner improperly applied the law in Mulligan, supra, by deeming the amount of time between injury and incapacity insufficient to apply the “date of incapacity” rule. In response, Ring of Fire and its insurer argue that the trial commissioner’s Finding and Award was legally valid. Ring of Fire questions the Fund’s posture in raising the concurrent employment argument on appeal, noting the issue was not noticed at the Formal Hearing and the claimant never sought compensation from Ring of Fire. The other appellee, Atlas, argues that the trial commissioner properly applied the concurrent employment statute. Atlas also argues that a “date of medical impairment” rule supports the trial commissioner’s determination as to the appropriate compensation rate.

We are not persuaded by the Fund’s argument that the trial commissioner erred in identifying the appropriate employer or employers in this case. We do note that the trial commissioner concluded based on the claimant’s testimony that two separate entities were both paying him at the same time while he was working at the Atlas studio. It is a question of fact as to which of these employers was receiving a benefit at the moment the claimant was injured. The Fund submitted a lengthy Motion to Correct which outlined factual determinations in its favor. The trial commissioner rejected this Motion. When a trial commissioner rejects a Motion to Correct, we may infer the commissioner did not find the proposed findings were grounded in probative or persuasive evidence. Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010), aff’d, 126 Conn. App. 902 (2011)(per curiam). We may not retry the facts of this case. We do not find the trial commissioner’s denial of the Motion to Correct was arbitrary o. capricious pursuant to the standards delineated in In re Shaquanna M., 61 Conn. App. 592 (2001). Since we may reverse a trial commissioner’s findings of fact when they are “clearly erroneous,” Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007), we find no error.

The trial commissioner herein reviewed the claimant‘s testimony and that of Mr. Maraffi that at various times during the work day the claimant performed various tasks. His tasks for Ring of Fire were of a supervisory nature; his work for Atlas included hands-on work lifting staging. The trial commissioner herein needed to walk the line between the claimant’s work activities and who they benefited. At the point where the claimant sustained his injury the trial commissioner concluded the work he was performing was not among the duties Ring of Fire had hired the claimant to perform. This conclusion was not unreasonable and was not inconsistent with the law.4

The Fund advances a meritorious argument as to the manner in which the trial commissioner applied Mulligan, supra. The appellees argue that there is “wiggle room” in Mulligan and that the trial commissioner appropriately determined that the facts here, where the claimant was disabled from work only a few months after his accident, were distinguishable from Mulligan. We recently decided a case based on § 31-310 (a) C.G.S. and can find no support for extending “wiggle room” to the Mulligan precedent.

In Partlow v. Petroleum Heat & Power Company, Inc., 5432 CRB-7-09-2 (February 9, 2010) we reviewed a Finding and Award where the trial commissioner applied a “date of injury” standard to the claimant’s compensation rate. We reversed this decision, finding that Mulligan, supra, Moxon v. Board of Trustees of Regional Community Colleges, 37 Conn. App. 648 (1995) and Rousu v. Collins Co., 114 Conn. 24 (1931) established “a ‘date of incapacity’ standard for the determination of a wage rate when there is a gap between date of injury and date of incapacity.”. Partlow, supra.

We reviewed the Supreme Court’s Mulligan decision at length in Partlow, and for the following reasons, believe it has delineated a “bright-line” standard of incapacity as the benchmark date for setting a compensation rate.

The Court did an extensive review of the legal theories and precedent governing the payment of temporary total disability benefits and determined “[w]e agree with the claimant that the calculation should have been based on his earnings preceding his incapacity.”. Mulligan, supra at 540. The Court in Mulligan restated the holding reached in Rousu, supra, that “. . . The just measure of the value of the earning power of an employee and the correlative loss incurred by him would seem to relate to his earnings at the time the loss occurs through incapacity to work, rather than his earnings at an earlier time . . . .”. Mulligan, supra, at 541. (Emphasis in original.. The court in Mulligan rejected the respondent’s argument that Rousu should be limited to occupational disease cases, and made clear the “date of incapacity” standard applied to traumatic injuries. Id., at 542-545.

Partlow, supra.

The facts in the present case are that the claimant did not miss work immediately after his injury. While counsel for Atlas argues the claimant had a “medical impairment” during this time period, the facts are the claimant did not find this impairment debilitating enough to prevent him from working. The standard under our case law for determination of an average weekly wage is “incapacity” and not “impairment.”. Nor do we find any authority supportive of the trial commissioner’s position in Conclusion, ¶ R that a “short period of time” constitutes an exemption from the general rule promulgated in Mulligan. The “bright-line rule” applies whether the lapse of time from injury to incapacity is six weeks or six years.

In Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007) we established that when a trial commissioner has reached an erroneous finding of law, we have the “responsibility as an appellate body to correct a commissioner’s misapplication of the law to the subordinate facts. See Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003).”. Id. In this case, we must correct the trial commissioner’s application of law as to the Mulligan decision.

We therefore affirm the Finding and Award; with the exception of Conclusions, ¶¶ R and S. The matter is herein remanded for further proceedings to establish an appropriate compensation rate pursuant to § 31-310 (a) C.G.S. applying an incapacity date of August 30, 2006.

Commissioners Christine L. Engel and Stephen B. Delaney concur in this opinion.

1 We note that postponements and extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 The terms of this statute read as follows,

Sec. 31-310. Determination of average weekly wage of injured worker. Concurrent employment. Payments from Second Injury Fund. Publication of wage tables. (a) 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, that calendar week and wages earned during that week shall be excluded in making the computation. When the period of employment immediately preceding the injury is computed to be less than a net period of two calendar weeks, the employee’s weekly wage shall be considered to be equivalent to the average weekly wage prevailing in the same or similar employment in the same locality at the date of the injury except that, when the employer has agreed to pay a certain hourly wage to the employee, the hourly wage so agreed upon shall be the hourly wage for the injured employee and the employee’s average weekly wage shall be computed by multiplying the hourly wage by the regular number of hours that is permitted each week in accordance with the agreement. For the purpose of determining the amount of compensation to be paid in the case of a minor under the age of eighteen who has sustained an injury entitling the employee to compensation for total or partial incapacity for a period of fifty-two or more weeks, or to specific indemnity for any injury under the provisions of section 31-308, the commissioner may add fifty per cent to the employee’s average weekly wage, except in the case of a minor under the age of sixteen, the commissioner may add one hundred per cent to the minor’s average weekly wage. When the injured employee is a trainee or apprentice receiving a subsistence allowance from the United States because of war service, the allowance shall be added to the injured employee’s actual earnings in determining the average weekly wage. 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

3 The terms of that statute read as follows,

Sec. 31-301. Appeals to the Compensation Review Board. Payment of award during pendency of appeal. (a) At any time within twenty days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner from which the award or the decision on a motion originated an appeal petition and five copies thereof. The commissioner within three days thereafter shall mail the petition and three copies thereof to the chief of the Compensation Review Board and a copy thereof to the adverse party or parties. If a party files a motion subsequent to the finding and award, order or decision, the twenty-day period for filing an appeal of an award or an order by the commissioner shall commence on the date of the decision on such motion. BACK TO TEXT

4 The Fund appears to argue that when an individual is hurt while he or she is being paid by two separate firms, that as a matter of law both firms must be held liable. The case cited by the Fund for this proposition, Kish v. Nursing and Home Care, Inc., 248 Conn. 379 (1999) requires a trial commissioner to evaluate what action a claimant is performing at the time of his or her injury to ascertain whether an injury is compensable, and if so, which employer was responsible. The trial commissioner did that in this case. We find the Fund has presented no cogent appellate authority supportive of its argument on this point. BACK TO TEXT

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