Lessard v. State of Connecticut Department of Public Safety

The claimant was represented by Paul Ranando, Esq., Law Offices of Edward T. Dodd, Jr., Esq., 182 Grand St., Waterbury, CT 06702.

The respondents were represented by Taka Iwashita, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 3, 1993 Finding and Award of the Commissioner acting for the Fifth District was heard June 10, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the June 3, 1993 Finding and Award of the Commissioner for the Fifth District. He argues on appeal that the commissioner improperly excluded certain payments from the claimant’s compensation rate under § 5-142 C.G.S. We affirm the trial commissioner’s decision.

The claimant was employed by the State of Connecticut as a trooper, and was injured in the performance of police duties on January 12, 1990. The state has accepted the compensability of the claim. At the time of the injury, the claimant’s base pay was $1,399.05 every two weeks. Pursuant to the parties’ stipulation of facts, the commissioner found that he also received $100 per month in dog handler pay, $100 per month in resident trooper pay, a $12.22 per day meal allowance, $2.00 per day for working in civilian clothing, $2.00 per day for maintenance of a police dog, and $327.00 every six months in longevity pay. All of those payments were found to be fully taxable. The commissioner determined that, under § 5-142, the claimant’s full salary consisted of his $1,399.05 biweekly base salary and the $327.00 longevity payment constituted a salary adjustment. The other payments received by the claimant were found not to be includable in his full salary or as adjustments thereto. The claimant has appealed that decision.

Section 5-142 (a) provides in part that a state police officer who is totally incapacitated as the result of a work-related injury “shall continue to receive the full salary which he was receiving at the time of the injury subject to all salary benefits of active employees, including annual increments, and all salary adjustments, including salary deductions, required in the case of active employees, for a period of two hundred sixty weeks from the date of the beginning of such incapacity.” In Vecca v. State, 29 Conn. App. 559 (1992), the Appellate Court confirmed the position of this Board that “full salary” as used in that statute is more limited in scope than the terms “wages” and “earnings,” and was intended by the legislature to be limited to the base salary of an employee, exclusive of amounts previously paid as overtime, maintenance allowance, or shift differential. Id., 563-64; see also Palmer v. State, 9 Conn. Workers’ Comp. Rev. Op. 53, 57, 900 CRD-4-89-7 (Feb. 4, 1991); Jones v. State of Connecticut/Mansfield Training School, 9 Conn. Workers’ Comp. Rev. Op. 53, 57, 986 CRD-2-90-2 (Feb. 4, 1991), reversed on other grounds, 220 Conn. 721 (1992). The claimant does not attempt to distinguish Vecca in his brief, instead arguing that the terms “annual increments” and “salary adjustments” clearly encompass the additional earnings sought to be included by the claimant.

There is little doubt that Vecca’s express exclusion of maintenance allowances from a claimant’s base salary under § 5-142 is determinative of this claimant’s pursuit of compensation based on his daily meal allowance, police dog maintenance stipend, and civilian clothing stipend. As to the dog handler pay and resident trooper pay, we note that the commissioner excluded those while including the claimant’s longevity pay as a salary adjustment. The stipulation of facts entered into by the parties on December 4, 1993 does not elaborate on the nature of those payments, and the claimant apparently made no attempt to define them further to the commissioner. Without more information, we must hold that the commissioner could reasonably have inferred from the stipulation that those payments were not salary adjustments within the meaning of § 5-142. Thus, his determination was supported by the evidence available to him, and we will not substitute our conclusions for his own. Fair v. People’s Savings Bank, 207 Conn. 535, 539-41 (1988).