State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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CRB Case Annotations re: Section 31-310

Computation of average weekly wage.

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THESE ANNOTATIONS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY

Full texts of opinions, statutes and court decisions should be consulted and all citations and references fully researched by the reader.

The Annotations to Compensation Review Board Opinions are presented “as is” and the Commission makes no warranties as to the suitability of this information for any given purpose.
Please note also that Annotations change periodically due to several factors including, but not limited to, Appellate and Supreme Court decisions issued in workers’ compensation cases.

Moore v. Alfred Paciotti d/b/a/ Empire Remodeling, et al, 5777 CRB-2-12-9 (June 3, 2013).

Claimant was injured on first day of job. Respondents argued that claimant was to be paid by the day. Trial commissioner found no hourly wage agreement and accepted expert opinion as to prevailing weekly wage for work claimant performed. Respondents were uninsured and Second Injury Fund appealed award arguing old appellate precedent inconsistent with award. CRB affirmed Finding. Trial commissioner applied current statute in manner legislature intended. See also, Moore, § 31-301 Factual findings; § 31-355(b).

Aylward v. City of Bristol/Board of Education, 5756 CRB-6-12-5 (May 15, 2013).

Claimant sustained three compensable injuries while employed by respondent. At time of one injury claimant was concurrently employed. Trial commissioner did not rule on that issue but directed parties to resolve this matter on their own and ascertain compensation rate. CRB remanded issue to trial commissioner. Issue properly raised by parties and should have been addressed in the Finding. See also, Aylward, § 31-294d; § 31-301 Factual findings; § 31-307; § 31-308(b).

Garvey v. Atlas Scenic Studios, Inc., 5493 CRB-4-09-9 (February 14, 2012).

Claimant injured while being paid by two different theatrical firms. Trial commissioner found one firm (Atlas) solely liable but claimant entitled to concurrent employment benefits. Commissioner set date to calculate benefits at date of injury, not point months later when claimant deemed totally disabled. On appeal CRB upheld finding re: concurrent employment but reversed and remanded on date to set such benefits. Mulligan v. F.S. Electric, 231 Conn. 529 (1994) cannot be distinguished on the facts from the present case and stands for a “date of incapacity” standard to set benefit levels. See also, Garvey, § 31-301 Appeal procedure; § 31-315.

Badawieh v. Federal Express Corp., 5240 CRB-7-07-6 (September 4, 2008), appeal dismissed for lack of final judgment, A.C. 30358 (January 15, 2009).

See Badawieh § 31-275(9), § 31-275(10).

Ruiz v. Camillo, Inc., 5248 CRB-7-07-7 (July 7, 2008).

Respondent’s carrier sought award against Second Injury Fund to pay concurrent employment share of award. Fund refused, citing absence of Form 44 prior to reimbursement request and trial commissioner denied motion. CRB upheld trial commissioner, precedent in Grillo v. Prestige Enterprises, Inc., 1704 CRB-1-93-4 (April 25, 1995) directly on point and must be accorded stare decisis.

McFarland v. State/Dept. of Developmental Services, 5176 CRB-5-06-12 (December 21, 2007), aff’d in part; rev’d in part, 115 Conn. App. 306 (2009).

Trial commissioner awarded claimant benefits during period he was disabled. Facts were he had not been paid wages during this period due to a disciplinary action, and was awarded back wages at conclusion of disciplinary process. Commissioner based award on precedent in Laliberte v. United Security, Inc., 261 Conn. 181 (1992). Respondents appealed, asserting this was a double recovery and precedent in Sweeney v. Waterbury, 10 Conn. Workers’ Comp. Rev. Op. 240, 1225 CRD-9-91-5 (January 7, 1993) and Boulay v. Waterbury, 27 Conn. App. 481 (1992) barred relief. CRB upheld trial commissioner. Precedent cited by respondents not on point and claimant’s attorney renounced claim for double recovery, seeking only attorney’s fees and interest on appeal. Appellate Court ordered remand on matter; commissioner’s award poses double recovery concerns; award must exclude wages received by claimant. . See also, McFarland, § 31-301. Appeal procedure, § 31-288, § 31-307, § 31-300.

Lopa v. Brinker International, Inc., 5166 CRB-6-06-11 (October 23, 2007), aff’d, 111 Conn. App. 821 (2008), cert. granted, 290 Conn. 913 (2/5/09).

Claimant injured while working at restaurant sought to include concurrent employment income as a postal worker to calculation of weekly disability benefits. Respondents objected as precedent in Chodkowski vs. UTC Pratt & Whitney, 736 CRD-3-88-5 (December 18, 1989) precludes including wages from federal employment in such calculations. Trial commissioner concurred Chodkowski governed situation. On appeal, CRB upheld trial commissioner as stare decisis mandated affirmance.

Bardales v. Christi Cleaning Service Corp., 5053 CRB-2-06-2 (December 21, 2006).

Claimant with compensable injury also worked as cook for Foxwoods Casino, owned by Mashantucket Pequot Tribal Nation. Respondent employer paid benefits based on combined wages, pursuant to concurrent employment statute. Second Injury Fund refused to reimburse respondents for concurrent employment benefits on ground that Foxwoods was not an employer within meaning of Act, as Tribal Nation has sovereign immunity. Trier agreed with Fund’s position. CRB affirmed. Alleged concurrent employer cannot be recognized as “employer” under § 31-310 unless entity is subject to jurisdiction of Act. See also, Bardales, § 31-275(10).

Hudgens v. Goldy’s Restaurant, 4997 CRB-2-05-9 (December 21, 2006).

Waitress with compensable injury also worked as blackjack dealer at Foxwoods Casino, owned by Mashantucket Pequot Tribal Nation. Respondent employer entered into voluntary agreement with claimant that incorporated Foxwoods wages into compensation rate. Second Injury Fund refused to reimburse respondent for concurrent employment benefits on ground that Foxwoods was not an employer within meaning of Act. Trial commissioner agreed, concluding that this agency lacks jurisdiction over casino based on sovereignty of Tribal Nation. CRB affirmed. Tribal Nation has withdrawn consent to state jurisdiction effective July 1, 1997, thus precluding state from enforcing workers’ compensation laws against Tribal Nation. See also, Hudgens, § 31-296. Voluntary agreements (approval of).

Rigoulot v. Wallingford, 4874 CRB-8-04-10 (March 14, 2006).

Claimant remains entitled to concurrent employment benefits while receiving compensation under § 7-433c, but municipality is not entitled to reimbursement from Second Injury Fund. Statute does not authorize payment from Fund for claims external to the Workers’ Compensation Act. See also, Rigoulot, § 31-278 (orders against Fund void ab initio, and error is jurisdictional), § 7-433c.

Kovalik v. E. Stiewing, Inc., 4905 CRB-7-04-12 (February 28, 2006).

Equitable considerations did not provide sufficient basis for trier to vary from prescribed wage calculation formula in § 31-310 to take into account fact that, at the time of his second injury, claimant was working light duty due to a prior compensable injury. See Trankovich v. Frenish, Inc., 47 Conn. App. 628 (1998). Prior decision at Kovalik, 4556 CRB-7-02-8 (August 29, 2002), § 31-301. Appeal procedure.

Fredette v. Connecticut Air National Guard, 4828 CRB-8-04-7 (January 13, 2006).

Respondent claimed decedent, a former civilian employee of the Air National Guard, was a federal employee, and not a covered employee under Chapter 568. CRB determined that civilian employees of the National Guard were state employees and under jurisdiction of state compensation law. See also, Fredette, § 31-294c.

Claudio v. Better Bedding, 4786 CRB-1-04-2 (October 19, 2005).

CRB affirmed commissioner’s conclusion as to the number of exemptions claimant was entitled to claim for purposes of calculating his average weekly wage. See also, Claudio, § 31-275(1), § 31-284(a), 31-301. Factual findings, § 31-307.

Guimond v. Affordable Home Remodelers Group, 4792 CRB-2-04-3 (May 19, 2005).

Claimant was injured on first day of work at roofing job. Trier determined that claimant was to be paid $15 per hour for a 40-hour week, and set claimant’s average weekly wage at $600. Respondent argued that claimant and co-worker had both testified that employer would pay workers with combination of cash and controlled narcotic substances, and contended that trier had improperly considered drugs as part of claimant’s compensation. Held: because claimant was injured at very outset of job, statute required weekly wage to be based on agreement between employer and employee. In absence of written documentation, trier had discretion to rely on testimony of claimant and co-worker regarding agreement as to wages. Trier was not required to speculate that illegal activity, i.e. distribution of controlled substances, would have occurred on this job, even if pattern of such activity had occurred in past. Claimant was rightfully due wages under § 31-71e C.G.S., and CRB presumed that employer intended to pay him pursuant to contract.

Gauthier v. State/Uncas-on-Thames, 4779 CRB-2-04-2 (April 1, 2005).

See, Gauthier, § 31-306 (decision in Green v. General Dynamics Corp., 245 Conn. 66 (1998), applied retroactively to dependent death claim that legally remained pending by virtue of fact that no separate award or voluntary agreement had been issued for said claim). See also, Gauthier, § 31-296. Voluntary agreements (approval of), § 31-307a.

Gagnon v. Cianbro Corp., 4758 CRB-3-03-12 (February 15, 2005).

Claimant filed as single with two exemptions on federal and state taxes, listing girlfriend/fiancée as dependent. IRS regulations allow unrelated individuals who share same abode to be included as dependents under certain circumstances. Claimant’s testimony substantiated this tax filing status. CRB affirmed trier’s ruling that average weekly wage calculation, using tables promulgated pursuant to § 31-310(b), was properly based on that filing status. Whether or not this individual would have qualified as a dependent or dependent-in-fact under § 31-275 was irrelevant, as test of dependency under Act is designed to define class of beneficiaries who can personally claim benefits under § 31-306. No relationship between that status and use of Internal Revenue Code to designate dependency in order to define exemptions on tax return. See also, Gagnon, § 31-306.

Dunlevy v. Infra Metals Corp., 4626 CRB-8-03-2 (April 5, 2004).

Claimant was entitled to concurrent employment benefits for § 31-308a claim. Claimant settled concurrent employment portion of claim with Second Injury Fund. CRB affirmed trier’s ruling that said settlement did not constitute earnings under § 31-308a. A settlement for concurrent employment benefits should not be counted as earnings against the very benefit of which they comprise a portion. See also, Dunlevy, § 31-298, § 31-308a.

Kazo v. Seymour, 4658 CRB-5-03-4 (March 31, 2004).

CRB found claimant-teacher actually employed 52 weeks under § 31-310 where parties stipulated claimant received an annual salary. Therefore, claimant’s weekly average wage is calculated by dividing by 52.

Mackiewicz v. Aetna Life & Casualty, 4558 CRB-8-02-8 (August 14, 2003).

See, Mackiewicz, § 31-301. Appeal procedure.

Williamson v. Genesis Elder Care Corp., 4547 CRB-5-02-7 (July 29, 2003).

Trier did not err in finding that claimant’s switch from part-time to full-time work six weeks before compensable injury did not result in formation of a new employment contract. CRB upheld use of full 52 weeks of wages to calculate average weekly wage.

Repay v. Basher Elec., 4541 CRB-4-02-6 (June 24, 2003).

CRB held that pursuant to § 31-310 and its provision relating to concurrent employment the Second Injury Fund was not responsible for reimbursement of that part of the COLA attributable to COLAs accrued prior to the 1991 statutory change in COLA calculations. Thus, the responsibility for the flat dollar COLAs to which a claimant was entitled remained with the carrier of the employer that the claimant was working for at the time of injury.

Prescott v. Community Health Center, Inc., 4426 CRB-8-01-8 (August 23, 2002).

Trier properly found that average weekly wage does not include sums received pursuant to employer’s disability insurance policy. Claimant not entitled to have average weekly wage calculated based upon employment contract where claimant was forced to work part-time due to subsequent, non-work-related illness, and employer and claimant functionally agreed that she would be paid upon an hourly basis for her part-time work. See also, Prescott, § 31-300, § 31-301. Factual findings, 31-307.

Henley v. Pratt & Whitney, 4381 CRB-3-01-4 (March 1, 2002).

See, Henley, § 31-296 Voluntary agreements (discontinuance of payments).

McCurrey v. Nutmeg Express, 4342 CRB-5-01-1 (January 3, 2002).

Affirmance of trier’s finding that claimant’s average weekly wage was $400. Claimant testified that he worked 10-14 hours per day, 5-6 days per week, at pay rate of either $10 per hour or by number of deliveries performed. Respondents offered no documentary evidence of claimant’s pre-injury salary, despite promising such records. Trier reasonably relied on best evidence available, which was testimonial. See also, McCurrey, § 31-288, § 31-300.

Iannarone v. State/Dept. of Mental Retardation, 4138 CRB-7-99-10 (June 15, 2001).

See, Iannarone, § 31-308a (inclusion of disability retirement benefits into benefit rate; error in using net pension benefits rather than gross pension benefits). See also, Iannarone, § 31-314. Prior decision at Iannarone, 4310 CRB-7-99-11 (December 6, 2000), § 31-301. Appeal procedure.

Ciocci v. Morrison Knudsen, Inc., 4244 CRB-1-00-5 (June 1, 2001).

Partial first week of employment is excluded from average weekly wage calculation, as is employment during week of injury. CRB did not reach merits of argument that date of worker’s incapacity was relevant date for determining compensation, as no subordinate finding of alternative incapacity date was made, and errors of law cannot be basis of motions to open. See also, Ciocci, § 31-301. Appeal procedure, § 31-301. Factual findings, § 31-315.

Pellegren v. Pratt & Whitney, 4196 CRB-1-00-2 (March 29, 2001).

See, Pellegren, § 31-308(a) (concerning role of maximum compensation rate and tables vis-à-vis temporary partial calculation).

Donahue v. Southington, 4136 CRB-6-99-10 (November 30, 2000), aff’d, 259 Conn. 783 (2002).

Claimant, a municipal police officer, did not have Social Security and Medicare deducted from his weekly pay; instead, 6% of his wages were deducted weekly as a contribution to police officers’ pension fund, which he would be eligible to access upon retirement. CRB held that compensation rate could be calculated using an alternative calculation table prepared by this Commission, and that § 31-310(b) did not require that the tables published pursuant to that statute be used for claimants who do not have FICA deducted from their weekly wages.

Stalker v. Derby, 4093 CRB-2-97-4 (August 10, 2000).

CRB affirmed trier’s determination that claimant was acting as an independent contractor rather than an employee of the Connecticut Post. Board thus affirmed trier’s conclusion that concurrent wage benefits provided under § 31-310 did not apply to concurrent employment with the Connecticut Post. Panel discussed cases which have rejected concurrent employment claims where there was no employee-employer relationship, or where this commission did not have jurisdiction over said relationship. See also, Stalker, § 31-279-3.

Lizcano v. Holiday Inn Crowne Plaza, 4036 CRB-7-99-4 (May 24, 2000).

Trial commissioner ruled that Second Injury Fund was liable for payment of COLAs for concurrent employment portion of claimant’s benefits. CRB affirmed. Statute does not confine payment of COLAs to portion of benefits attributable to employer in whose services the claimant was injured, and it would be inconsistent with remedial tenor of Act for board to invent such a limitation. As COLAs are generally the responsibility of the party paying the underlying benefit (absent specific instruction otherwise), CRB ruled that the Fund stood in the shoes of the employer here, and was liable for COLAs as well as the base compensation rate for concurrent employment. Defects in Form 44 such as absence of signing date and omission of number of weeks of benefits paid did not preclude the commissioner from partially relying on the form. Total amount paid was available, and trier had discretion to accept it. See also, Lizcano, § 31-296 Voluntary agreements (approval of), § 31-307a.

Ellis v. Rogers Corp., 3767 CRB-8-98-2 (March 25, 1999).

CRB affirmed trier’s ruling that claimant was entitled to wages earned on December 1994 date of injury/manifestation of occupational disease, even though he did not become incapacitated until 1997. “Date of incapacity” rule in Stevens v. Raymark Corporation/Raybestos Manhattan, 28 Conn. App. 226 (1992), does not apply in cases where claimant is not working at time of incapacity.

Falkowski v. International Fuel Cells Corp., 3679 CRB-1-97-9 (March 25, 1999).

CRB concluded that trier properly determined claimant’s weekly benefit rate pursuant to § 31-310c. Claimant had retired prior to manifestation of occupational lung disease, and therefore trial commissioner found the benefit rate based upon the prevailing weekly wage at the time of the claimant’s injury for a position equivalent to that held by the claimant prior to his retirement. This yielded a higher benefit rate than the rate based upon the 26 weeks prior to the claimant’s retirement.

Pyrdol v. General Dynamics Corporation/Electric Boat Division, 3504 CRB-2-96-12 (November 9, 1998).

Section 31-310c was applicable to claimant dependent widow whose decedent was diagnosed with mesothelioma on June 22, 1993, 16 years after he retired from Electric Boat. See, Green v. General Dynamics Corp, 245 Conn. 66 (1998). Claimant was also entitled to COLAs pursuant to Belanger v. American Optical, 3353 CRB-1-96-5 (January 22, 1998). However, trier did not appear to have fully considered both methods of determining weekly compensation rate, so CRB remanded for articulation. See also, Pyrdol, § 31-301. Factual findings.

Harrison v. General Dynamics Corporation/Electric Boat Division, 3252 CRB-8-96-1 (November 9, 1998).

Supreme Court ruling in Green v. General Dynamics, 245 Conn. 66 (1998), regarding retroactivity of § 31-310c, controls issue of voluntary retirement by decedent in 1988, several years prior to manifestation of symptoms of mesothelioma. See also, Harrison, § 31-301. Appeal procedure.

Shea v. Pfizer Inc., 3667 CRB-2-97-8 (September 17, 1998).

Claimant was exposed to asbestos from 1950 until he retired in 1987. Claimant was diagnosed with asbestosis prior to 1987, but never missed any time from work due to asbestosis. CRB affirmed the trial commissioner’s conclusion that the claimant’s date of injury for purposes of § 31-294c was November 27, 1997, the date on which there was sufficient medical evidence to establish asbestosis. The relevant date for purposes of calculating the claimant’s weekly benefit rate hinges on incapacity rather than diagnosis, and thus the CRB remanded the matter for a determination of the claimant’s date of incapacity. CRB noted that where a claimant does not suffer any incapacity while employed, the relevant date becomes the date of the first assessment of permanent partial disability. See also, Shea, § 31-294c.

Mencarelli v. General Dynamics Corporation/Electric Boat Division, 3470 CRB-8-96-11 (August 28, 1998).

CRB affirmed the trial commissioner’s award of benefits to the dependent widow of the deceased who died in 1993 due to carcinoma caused by asbestos exposure. Section 31-310c, which became effective October 1, 1990, applies to this case, and thus the trier properly calculated the claimant’s benefit rate based upon the last twenty-six weeks worked by the decedent.

Hannan v. George A. Tomasso Construction Corp., 3589 CRB-2-97-4 (August 18, 1998).

Section 31-310 does not require a claimant to have concurrent employment formula used in calculating average weekly wage where average weekly wage would be decreased by use of concurrent employment. However, alternate formulas cannot be devised to supplement the ones in § 31-310 as per Trankovich v. Frenish, Inc., 47 Conn. App. 628 (1998).

Jordan v. General Dynamics Corporation/Electric Boat Division, 3206 CRB-8-95-11 (August 18, 1998).

CRB followed Supreme Court decision in Green v. General Dynamics Corp., 245 Conn. 66 (1998). Case remanded so that trier could compare prevailing wage at time occupational disease was diagnosed to wages earned by employee during last 26 weeks of employment with respondent. Trier appears to have considered only the latter alternative.

Heene v. Professional Ambulance Service, Inc., 3743 CRB-6-97-12 (January 8, 1999).

See, Heene, § 31-300, § 31-308(a) (notes mention concurrent employment provision).

Wilson v. Stamford, 3268 CRB-7-96-2 (November 7, 1997).

The record supports the trial commissioner’s determination that the respondent assigned and regulated the extra duty assignments performed by the claimant, a police officer, and thus an inference that the respondent had control over these assignments is reasonable. Accordingly, the determination that compensation from said assignments should be included in the determination of the claimant’s benefit rate was within the discretion of the trial commissioner. See also, Wilson, § 31-300. Subsequent decision at Wilson, 4506 CRB-7-02-3 (March 5, 2003), aff’d, 81 Conn. App. 339 (2004), cert. denied, 268 Conn. 918 (2004).

Ericson v. Perreault Spring & Equipment, 3200 CRB-5-95-11 (April 28, 1997).

Pursuant to order of CRB on remand, trial commissioner calculated that $19,000 year-end bonus translated into $365.38 per week, and that average weekly wage for 26 weeks preceding injury should be increased by that amount per week. Affirmed. In prior Ericson decision, CRB decided that bonus was allocable to weeks worked, and trier made a logical ruling on how to apportion that amount. In a footnote, CRB also noted that matters addressed in prior decisions of this board will not be readdressed later (“law of the case”).

Trankovich v. Frenish, Inc. d/b/a Chamberlain Ambulance, 3053 CRB-3-93-4 (January 3, 1997), rev’d, 47 Conn. App. 628 (1998).

Claimant suffered compensable injury while working for ambulance company. She had been working full-time for that company for four months; prior to that, she worked there part-time, and also worked full-time for another employer. Trial commissioner calculated her compensation rate on the basis of the average of her full and part-time wages at the ambulance company during the 52 weeks preceding her injury, without taking into account wages paid by the other employer. Held: although, on its face, § 31-310 only allows concurrent employment benefits when the claimant worked for more than one employer on the date of injury, the statutory formula would place this claimant in an undeservedly difficult economic position. CRB ruled that trial commissioner should have used only the wages the claimant earned subsequent to her cessation of employment with her previous full-time employer. (Wilson, C., DISSENTING) (the statute is clear, and the findings support the commissioner’s decision. Board cannot act as a super-legislature). Reversed by Appellate Court, which held that § 31-310 clearly requires that the claimant’s average weekly wage be calculated by adding the total wages she received from her employer during the 52 weeks prior to her injury, and dividing that by the actual number of calendar weeks she was employed by the employer. Because she was not employed with her other part-time job at the time of her injury, it was not concurrent employment pursuant to § 31-310. See also, Trankovich, § 31-301. Appeal procedure.

Luce v. UTC/Pratt & Whitney, 3080 CRB-1-95-6 (December 16, 1996), aff’d, 47 Conn. App. 909 (1997)(per curiam), aff’d, 247 Conn. 126 (1998).

Trial commissioner properly excluded certain fringe benefits from claimant’s average weekly wage. Definition of “wages” is narrower than that of “income” in § 31-284b. Based on unconstitutionality of § 31-284b as applied to insurance premiums paid by private employers, it would be improper to include value of such premiums in weekly wage. Pension benefits are similarly distinguished from “wages” in § 31-284b definition as well. As for vacation and sick pay, CRB has held that they can be “wages” as long as they are dependent on hours worked, etc. Commissioner made factual determination that they were not so related, and CRB would not disturb that determination on review.

Tyc v. Calabrese Construction Co., 3061 CRB-5-95-5 (December 10, 1996), appeal dismissed, A.C. 16999 (September 17, 1997), motion to reconsider denied (November 5, 1997), cert. denied, 243Conn. 966 (1998).

The CRB affirmed the trial commissioner’s Supplemental Finding and Award which computed the claimant’s average weekly wage so as to include 15 hours of overtime. The respondents appealed on the basis that the overtime computation was an issue controlled by § 31-76c and as § 31-76c was not part of the Workers’ Compensation Act, the commissioner lacked jurisdiction to decide the issue. The CRB noted, inter alia, that the issue had previously been decided by the CRB in its earlier opinion in Tyc v. Calabrese Construction Co., 13 Conn. Workers’ Comp. Rev. Op. 71, 1529 CRB-5-92-10 (December 29, 1994), and that the present appeal was merely an attempt to have the CRB reconsider its earlier decision in Tyc I. The CRB applied the law of the case and dismissed the appeal. After the CRB rendered its decision the Second Injury Fund filed a motion to reargue which was denied. See also, Tyc, § 31-308(a).

Rodriguez v. Devcon Enterprises, Inc., 15 Conn. Workers’ Comp. Rev. Op. 362, 2244 CRB-3-94-12 (June 28, 1996).

Claimant sought to include monthly rental value of employer-provided (and HUD-subsidized) apartment in his compensation rate. Respondents agreed to include the portion of the rent they paid, but not the HUD portion. Trial commissioner agreed with respondents. CRB affirmed. Statute bases benefit rate on total wages received from employer; benefit from other source, including HUD, is not generally included in wages. Also, value of medical insurance premiums was properly excluded from wage computation; both the definition of “income” in § 31-284b and the fact that § 31-284b does not apply to private employers pursuant to a United States Supreme Court decision mandate that result.

Abercrombie v. Bartlett Nuclear, Inc., 15 Conn. Workers’ Comp. Rev. Op. 346, 2271 CRB-8-95-1 (June 26, 1996).

Commissioner erroneously included temporary duplicate living expenses in claimant’s average weekly wage. Although facts of case differed from Wonacott, 15 Conn. Workers’ Comp. Rev. Op. 334, 2237 CRB-4-94-12 (June 25, 1996), in that testimony regarding the nature of the living expense payments was offered, the commissioner did not have sufficient evidence here to find that claimant established real economic gain from his living expenses, and that they were paid to him as compensation. Case was remanded for further consideration in light of Wonacott and this opinion.

Wonacott v. Bartlett Nuclear, Inc., 15 Conn. Workers’ Comp. Rev. Op. 334, 2237 CRB-4-94-12 (June 25, 1996).

CRB reversed commissioner’s decision to include living allowance in total wages. Parties had stipulated to facts of case, e.g., that the respondent only pays living expenses to employees who qualify for a per diem allowance under the Internal Revenue Code. Commissioner held that neither party presented evidence as to actual living expenses and that federal regulation requiring return of unsubstantiated expenses by employee was thus unsatisfied. He thus ruled that the living expense payments should be included in the claimant’s wages. Held, stipulation of facts, once accepted, deems the matters in the stipulation settled. As no evidence was offered at the formal hearing, the commissioner should not have held against the respondent the absence of evidence regarding actual expenses without giving it an opportunity to address that issue. Key to appeal was tax regulations stipulated to by parties; commissioner based his decision on actual expenses, which was irrelevant. Instead, claimant needed only to substantiate his travel days as long as his allowance did not exceed the applicable per diem rate, which it did not. Stipulated facts did not support including living expense payments in “wages;” reversed.

Phelan v. Soda Construction Co., 14 Conn. Workers’ Comp. Rev. Op. 389, 1979 CRB-3-94-3, 2107 CRB-3-94-7 (October 17, 1995).

Date claimant receives paycheck has no impact on calculation of wages; all pay rightfully due to claimant during statutorily defined period was properly included in calculation. Trial commissioner’s conclusion that claimant was temporarily totally disabled supported by evidence. Medical report clarifying dates of total disability was not improperly admitted given the latitude a commissioner has regarding evidence under § 31-298. See earlier Phelan, 13 Conn. Workers’ Comp. Rev. Op. 53, 1583 CRB-3-92-12 (December 20, 1994), supra § 31-291.

Lemieux v. General Dynamics Corporation/Electric Boat Division, 14 Conn. Workers’ Comp. Rev. Op. 383, 2077 CRB-2-94-6 (October 5, 1995).

Claimant argued that earnings as member of Connecticut National Guard constitute concurrent employment benefits under § 31-310. Held, § 27-67 grants authority to adjutant general over workers’ compensation claims of members of Connecticut armed forces. State therefore is not an employer under § 31-275, as our jurisdiction over CNG member claims would be inconsistent with § 27-67. Concurrent employment claim dismissed.

Pascarelli v. Moliterno Stone Sales, 14 Conn. Workers’ Comp. Rev. Op. 328, 2115 CRB-4-94-8 (September 15, 1995), aff’d, 44 Conn. App. 397 (1997).

Average weekly wage is based on total wages; does not include employer health plan contributions and payments to annuity and pension funds, even if based on number of hours worked. Definitions of income and wages distinguished. See also, Pascarelli, § 31-287.

Fiore v. Office Furniture Depot, 14 Conn. Workers’ Comp. Rev. Op. 286, 1955 CRB-3-94-1 (September 11, 1995).

CRB considered original appeal in 1991 and remanded case for further findings. On remand, the trial commissioner gave the claimant the opportunity to establish her entitlement to overtime pay, and ruled that she had not proven her dental injuries compensable. Both conclusions were supported by the evidence; CRB had not ordered contrary findings to be made on remand, as doing so would be beyond our power. Affirmed.

Liano v. Bridgeport, 14 Conn. Workers’ Comp. Rev. Op. 201, 2033 CRB-4-94-5 (July 25, 1995), appeal and cross appeal dismissed, lack of final judgment, A. C. 15082 (June 6, 1996), cert. denied, 238 Conn. 906 (1996).

Commissioner improperly based compensation rate on 9/18/79 date of injury where claimant was not totally disabled until 5/16/83. Under Mulligan v. F.S. Electric, 231 Conn. 529 (1994), average weekly wage must be determined based on wages during 26 weeks prior to date of disability. Logic applies equally to § 7-433b cases. Also, affirmative defense of res judicata did not foreclose CRB consideration of this issue; no showing that 5/16/83 injury was ever considered by either party or the commissioner in prior proceedings. Note: § 31-308b(3) claim for educational allowance failed due to 1979 date of injury. See also, Liano, § 7-433b, § 31-300. Note: This exact issue was addressed in Liano, 3561 CRB-4-97-3 (June 3, 1998), rev’d in part, 55 Conn. App. 75 (1999), cert. denied, 252 Conn. 909 (1999). The Appellate Court held that CRB improperly changed the claimant’s date of injury. Specifically, the court explained that because the trial commissioner’s decision “was a final judgment, [the claimant] was not entitled to have the commission adjust his weekly compensation on the basis of a date of injury of May 16, 1983, because he did not show that he met the requirements of § 31-315.” See also, § 31-300. Other subsequent decisions at Liano, 3447 CRB-4-96-10 (January 6, 1998), aff’d, 51 Conn. App. 905 (per curiam), cert. denied, 248 Conn. 907 (1999), § 7-433c; Liano, 3299 CRB-4-95-10 (March 25, 1997), § 31-294c, § 31-297, § 31-301. Factual findings; Liano, 3199 CRB-4-95-10 (March 25, 1997), § 31-279-3, § 31-298, § 31-307.

Giovino v. West Hartford, 14 Conn. Workers’ Comp. Rev. Op. 74, 1912 CRB-1-93-12 (May 12, 1995).

Claimant alleged hearing loss due to repeated exposure to gunfire, which constituted repetitive trauma injury. In order to determine weekly benefit rate, CRB applied Mulligan v. F.S. Electric, 231 Conn. 529 (1994), and held that weekly benefit rate should be based upon period immediately preceding his incapacity to work rather than last date of exposure. See also, Giovino, § 31-294c, and § 31-298.

Dextraze v. Lydall, Inc., 14 Conn. Workers’ Comp. Rev. Op. 52, 1615 CRB-2-92-12 (May 10, 1995).

Trier need not accept handwritten wage statement as reliable evidence to amend voluntary agreement and increase compensation rate. See also, Dextraze, § 31-308(a), and § 31-308(b)(c).

Owens v. R. R. Donnelley & Sons, 14 Conn. Workers’ Comp. Rev. Op. 28, 1892 CRB-2-93-11 (May 3, 1995).

See, Owens, § 31-307a, § 31-300; wage rate for 1988 injury causally related to 1980 injury relates back to 1980 injury where claimant unemployed at time of second injury.

Grillo v. Prestige Enterprises, Inc., 13 Conn. Workers’ Comp. Rev. Op. 311, 1704 CRB-1-93-4 (April 25, 1995).

Second Injury Fund is normally liable for payment of concurrent employment benefits under statute. Where insurer failed to follow procedure in Form 44 for assessing liability against the Fund, however, the Fund could not be held liable. Consequently, liability for payment of benefits due the claimant fell on the insurer. See also, Grillo, § 31-300.

Frederick v. General Dynamics Corporation/Electric Boat Division, 13 Conn. Workers’ Comp. Rev. Op. 290, 1776 CRB-2-93-7 (April 21, 1995), rev’d, 44 Conn. App. 124 (1996), rev’d, 245 Conn. 84 (1998).

Decedent voluntarily retired in 1984. Asbestos exposure during employment caused fatal mesothelioma. Respondents challenged commissioner’s use of decedent’s wages during his last 26 weeks with Electric Boat in 1983-84. Held, Green, 13 Conn. Workers’ Comp. Rev. Op. 113, 1651 CRB-2-93-2 (January 31, 1995), controls. Section 31-310c C.G.S. need not be applied retroactively to reach this result, as formula used by commissioner clarified law existing before 1990 amendment to statute. Argument that recovery by dependent widow provides estate with windfall fails to take into account state constitutional considerations surrounding elimination of right to bring civil suit. See Article First, § 10; Daily v. New Britain Machine Co., 200 Conn. 562, 582-86 (1986). Reversed by Appellate Court; opinion in Green v. General Dynamics/Electric Boat Div., 44 Conn. App. 112 (1996) controls, and failure of decedent to earn wages during 26 weeks prior to incapacity means that he had no average weekly wage, and his survivor is not entitled to benefits. Reversed by Supreme Court; opinion in Green v. General Dynamics/Electric Boat Div., 245 Conn. 66 (1998) controls, and the dependent widow and estate were entitled to benefits to be calculated pursuant to § 31-310c [Rev. to 1991].

Yale v. Allegheny Ludlum, 13 Conn. Workers’ Comp. Rev. Op. 275, 1894 CRB-3-93-10 (April 19, 1995).

Profit sharing checks based upon hours worked by claimant were properly included as wages under statute. Commissioner entitled to determine credibility of conflicting testimony as to meaning of collective bargaining agreement and intent of parties regarding payments.

Pelletier v. M & M Builders, Inc., 13 Conn. Workers’ Comp. Rev. Op. 266, 1740 CRB-5-93-5 (April 19, 1995).

Claimant suffered permanent paralysis of legs while working part-time for employer; claimant was seventeen at time of injury. Commissioner was entitled to increase claimant’s average weekly wage by fifty percent under § 31-310; statute does not require proof that claimant was earning less than an adult doing the same job would have earned at the time of injury. See also, Pelletier, § 31-300, and § 31-307.

Green v. General Dynamics Corporation/Electric Boat Division, 13 Conn. Workers’ Comp. Rev. Op. 113, 1651 CRB-2-93-2 (January 31, 1995), rev’d, 44 Conn. App. 112 (1996), rev’d, 245 Conn. 66 (1998).

Commissioner had authority to refer to decedent’s 1978 wages in computing compensation for dependent widow, even though decedent’s incapacity began in 1989, long after his retirement. Although § 31-310c was not retroactively applicable, appropriate method of wage calculation before 10/1/90 was to look at the time when employer and employee last had an active contractual relationship. 1989 maximum compensation rate applicable as well. Appellate Court reversed, as failure of decedent to earn any wages during the 26 weeks prior to his incapacity meant that he had no average weekly wage, and therefore dependent spouse was not entitled to benefits. Reversed by Supreme Court, which held that wage calculation should be based upon § 31-310c [Rev. to 1991], as that statute was intended by legislature to clarify a related statute. See also, Green, § 31-306, and § 31-309.

Poulin v. General Dynamics Corporation/Electric Boat Division, 13 Conn. Workers’ Comp. Rev. Op. 94, 1632 CRB-2-93-2 (January 25, 1995).

Claimant’s benefits should be based on average weekly wage at time of injury, which is the date the disease causes the claimant to be totally or partially incapacitated from working in occupational disease cases. Because no evidence existed in record to support commissioner’s use of a 1/14/86 permanent partial disability date, CRB remanded case. (Articulation issued.)

Tyc v. Calabrese Construction Co., 13 Conn. Workers’ Comp. Rev. Op. 71, 1529 CRB-5-92-10 (December 29, 1994).

Remanded for recalculation of compensation rate to include overtime pay where trier found claimant worked fifty-five (55) hours per week. See also, Tyc, § 31-300 and § 31-308(a). Subsequent decision at Tyc, 3061 CRB-5-95-5 (December 10, 1996), supra.

Wilkinson v. General Dynamics Corporation/Electric Boat Division, 13 Conn. Workers’ Comp. Rev. Op. 11, 1605 CRB-2-92-12 (November 3, 1994).

Commissioner found date of injury to be 9/14/88, awarded benefits based on claimant’s weekly wage as of that date. Held, occupational disease benefits do not accrue until date of incapacity. Despite testimony that some symptoms of active lung disease existed as early as 1980, the evidence did not mandate a finding that impairment occurred before 1988, as there was also evidence to support the use of the latter date. (Articulation issued.) See also, Wilkinson, § 31-301. Appeal procedure.

Sellew v. Northeast Utilities, 12 Conn. Workers’ Comp. Rev. Op. 135, 1422 CRB-8-92-5 (April 7, 1994), dismissed for lack of final judgment, A.C. 13541, 13542 (June 14, 1994).

Average weekly wage based on last day of work prior to retirement although incapacity as a result of occupational disease occurred later. See, Orcutt v. Ohmweave Co., 8 Conn. Workers’ Comp. Rev. Op. 125, 822 CRD-2-89-2 (August 2, 1990). See also, Sellew, § 31-275(15), § 31-294 and § 52-572r.

Moxon v. State/Board of Trustees, Regional Community Colleges, 12 Conn. Workers’ Comp. Rev. Op. 246, 1485 CRB-1-92-8 (March 29, 1994), aff’d, 37 Conn. App. 648 (1995).

See, Moxon, § 31-295 and § 31-315.

Ericson v. Perreault Spring & Equipment Co., 12 Conn. Workers’ Comp. Rev. Op. 243, 1418 CRB-5-92-5 (March 29, 1994), dismissed for lack of final judgment, 38 Conn. App. 71 (1995).

CRB reversed trier’s finding. CRB held employment contract contemplated a year-end bonus which was allocable to weeks worked during the calendar year. Although it was not received during the twenty-six weeks preceding claimant’s date of injury, the profit sharing year-end bonus should be included in the calculation of the average weekly wage.

Mulligan v. F.S. Electric, 12 Conn. Workers’ Comp. Rev. Op. 91, 1424 CRB-4-92-5 (February 15, 1994), rev’d in part, 231 Conn. 529 (1994).

Where there exists no occupational disease or repetitive trauma and total disability occurs subsequent to date of injury definitely located as to the time and place where the accident occurred, compensation rate is based on earnings at the time of injury not the time of incapacity to work. Supreme Court reversed CRB holding proper measure of compensation is based on the time of incapacity. Affirmed CRB on § 31-307b issue. See also, Mulligan, § 31-307 and § 31-307b.

Galpin v. Joyce Moving & Storage, Inc., 11 Conn. Workers’ Comp. Rev. Op. 31, 1241 CRD-5-91-6 (February 26, 1993).

Remanded. Trier must consider evidence where remuneration for services performed by claimant as a lent employee indicates claimant may have performed work for the employer for twenty-six weeks prior to the date of his injury. Trier only considered a twelve week period when calculating claimant’s average weekly wage. See also, Galpin, § 31-292.

Graziano v. St. Mary’s Hospital, 11 Conn. Workers’ Comp. Rev. Op. 10, 1230 CRD-5-91-5 (February 8, 1993).

In determining claimant’s average weekly wage, trier included sick and vacation pay received during weeks claimant was not working. CRB remanded as vacation and sick pay earned are wages allocable to the period employee worked. They cannot be allocated to weeks in which claimant did not work. See, Kriedler v. Bic Pen Corp., 16 Conn. App. 437 (1988); Fulco v. Norwich Roman Catholic Diocesan Corp., 27 Conn. App. 800 (1992) and Ericson v. Perreault Spring & Equipment Co., 9 Conn. Workers’ Comp. Rev. Op. 171, 1008 CRD-5-90-4 (July 17, 1991). See also, Graziano, § 31-296, § 31-307, and § 31-308a.

Sweeney v. Waterbury, 10 Conn. Workers’ Comp. Rev. Op. 240, 1225 CRD-5-91-5 (January 7, 1993).

See, Arnold v. Tolland Board of Education, 10 Conn. Workers’ Comp. Rev. Op. 235, 1220 CRD-2-91-4 (January 7, 1993). See also, Sweeney, § 31-307 and § 31-312.

Arnold v. Tolland Board of Education, 10 Conn. Workers’ Comp. Rev. Op. 235, 1220 CRD-2-91-4 (January 7, 1993).

Trier’s finding reversed. Trier found average weekly wage should be based on claimant’s salary divided by the number of weeks over which claimant received it. CRB previously addressed this issue in Boulay and Glowa. CRB held claimant’s average weekly wage be computed on the basis of dividing total wages received during the 26 calendar weeks preceding the injury.

Fiore v. Office Furniture Depot, 10 Conn. Workers’ Comp. Rev. Op. 15, 1093 CRD-3-90-8 (December 27, 1991).

Remanded as employment contract provided for time and a half for each Sunday worked and two (2) percent commission on sales. Computations on Voluntary Agreement derive from inconsistent or mistaken facts. See also, Fiore, § 31-296 and § 31-315.

Wislocki v. Prospect, 9 Conn. Workers’ Comp. Rev. Op. 222, 1010 CRD-5-90-5 (October 21, 1991), aff’d, 27 Conn. App. 919 (1992)(per curiam), aff’d, 224 Conn. 479 (1993).

Volunteer fireman who sustained a compensable injury while performing fire duties and also employed full time by a local manufacturer not entitled to concurrent employment benefits as method of computation inconsistent with method prescribed under § 7-314a. See, Going v. Cromwell Fire District, 159 Conn. 53 (1970) and Benoit v. State, 9 Conn. Workers’ Comp. Rev. Op. 58, 920 CRD-2-89-9 (February 6, 1991). See also, Wislocki, § 7-314a.

Ericson v. Perreault Spring & Equipment Company, 9 Conn. Workers’ Comp. Rev. Op. 171, 1008 CRD-5-90-4 (July 17, 1991).

Trial commissioner’s ruling granting claimant’s request to reopen Voluntary Agreement to allow evidence on whether certain profit sharing sums paid at year end should have been included in the computation of his average weekly wage provided by § 31-310 will not be disturbed as § 31-315 provides a commissioner with ongoing jurisdiction during the whole compensation period applicable to the injury in question. See also, Ericson, § 31-315.

Haugh v. Leake & Nelson, 9 Conn. Workers’ Comp. Rev. Op. 148, 1066 CRD-8-90-7 (June 5, 1991).

Average weekly wage to be determined by dividing total wages received by injured worker from the employer in whose service he is injured, even though claimant may have worked for many different employers during the 26 week period prior to his injury.

Glowa v. Waterbury, 9 Conn. Workers’ Comp. Rev. Op. 114, 948 CRD-5-89-11 (April 8, 1991).

See, Boulay, infra. Factual difference as this claimant, unlike Boulay, was injured near the end of the school year.

Boulay v. Waterbury, 9 Conn. Workers’ Comp. Rev. Op. 111, 941 CRD-5-89-11 (April 8, 1991), aff’d, 27 Conn. App. 483 (1992).

CRD corrected finding and remanded matter for computation of monies paid to a city teacher for chapter 568 benefits. Under union’s contract teacher was entitled to full salary. Claimant received payment thereto and claimed total incapacity benefits for period of annual summer vacation. CRD held that the matter be remanded because if the claimant had received 66 2/3 of her annual salary then Chapter 568 payment of total incapacity benefits was satisfied.

Benoit v. State/Norwich State Hospital, 9 Conn. Workers’ Comp. Rev. Op. 58, 920 CRD-2-89-9 (February 6, 1991).

State employee receiving full salary benefits under § 5-142(a) is not entitled to concurrent employment benefits pursuant to § 31-310. See also, Benoit, § 5-142(a). ***But see, Trinkley v. State, 220 Conn. 739 (1992) and Jones v. State, 220 Conn. 721 (1992).

Orcutt v. Ohmweave Co., 8 Conn. Workers’ Comp. Rev. Op. 125, 822 CRD-2-89-2 (August 2, 1990).

See, Orcutt, § 31-294c, § 31-307.

Stevens v. Raybestos Manhattan, 8 Conn. Workers’ Comp. Rev. Op. 84, 833 CRD-4-89-3 (May 11, 1990), aff’d, 28 Conn. App. 226 (1992), cert. denied, 223 Conn. 921 (1992).

See, Stevens, § 31-308(c).

Wilcox v. Naugatuck, 8 Conn. Workers’ Comp. Rev. Op. 24, 812 CRD-5-89-1 (February 1, 1990), no error, 16 Conn. App. 676 (1988)(per curiam).

Expenses incurred to be deducted from earned commissions in order to arrive at true wages earned. Remanded to determine actual amount of concurrent employment wages.

Chodkowski v. UTC/Pratt & Whitney, 8 Conn. Workers’ Comp. Rev. Op. 4, 736 CRD-3-88-5 (December 18, 1989).

The federal government is not an employer under the Act. Wages from U.S. Army Reserve are not considered concurrent employment as federal government is not an employer under the Act.

Lepino v. Electrolux Corporation, 6 Conn. Workers’ Comp. Rev. Op. 146, 719 CRD-7-88-3 (April 13, 1989).

See, Lepino, § 31-307.

Matey v. Dember, 5 Conn. Workers’ Comp. Rev. Op. 104, 516 CRD-5-86 (June 14, 1988), appeal dismissed, 210 Conn. 626 (1989)(per curiam).

Finding of money value of room and board must be supported by evidence. Subsequent decisions at Matey, 1189 CRD-5-91-3 (April 5, 1991), § 31-301. Appeal procedure, Matey, 3153 CRB-5-95-8 (January 10, 1997), aff’d in part and rev’d in part, 256 Conn. 456 (2001), § 31-301. Appeal procedure, § 31-315, § 31-355(a), Matey, 3848 CRB-7-98-6 (July 7, 1999), aff’d in part and rev’d in part, 256 Conn. 456 (2001), § 31-355(b), Matey, 4488 CRB-7-02-2, 4532 CRB-5-02-5 (May 14, 2003), appeal dismissed for failure to comply with Supreme Court’s directive, 85 Conn. App. 198 (2004).

Baran v. Colen Displays, 4 Conn. Workers’ Comp. Rev. Op. 107 (June 20, 1987).

Computation of wages is to be based on weeks worked and is not to include sum earned the week claimant was injured.

O’Leary v. New Britain, 3 Conn. Workers’ Comp. Rev. Op. 108, 236 CRD-6-83 (December 2, 1986).

Appropriate calculation of weekly wage relates to time of manifestation of injury which is date of incapacity.

Consiglio v. Hermann Forwarding Co., 2 Conn. Workers’ Comp. Rev. Op. 67, 186 CRD-3-82 (July 3, 1984).

Evidence existed supporting claimant’s claim that he was not merely a part-time, casual employee.

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