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CASE NO. 1830 CRB-3-93-9
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 21, 1995
STOP & SHOP COMPANIES, INC.
The claimant was represented by Francis P. Cipriano, Esq., 1220 Whitney Ave., Hamden, CT 06517.
The respondent was represented by Andrew H. Sharp, Esq., Morrison, Mahoney & Miller, 100 Pearl St., Hartford, CT 06103.
This Petition for Review from the August 26, 1993 Finding of C.G.S. 31-308a Award of the Commissioner acting for the Third District was heard August 26, 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.
JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the August 26, 1993 Finding and Award of § 31-308a C.G.S. benefits by the commissioner for the Third District. It argues on appeal that the commissioner improperly based his calculation of the claimant’s § 31-308a benefits in part on overtime pay the claimant had been earning prior to his compensable injury. We affirm the trial commissioner’s decision.
The claimant suffered a compensable injury to his left ankle on December 30, 1987. At the time of the injury, the claimant was employed as a selector in the respondent’s Meat Distribution Center, which job was paying $16.57 per hour at the time of the formal hearings. The claimant also had a history of working mandatory and non-mandatory overtime in the meat department.
Because of his injury, the claimant had to transfer to the grocery department, where he also earns $16.57 per hour. No overtime work is available in that department. The commissioner found that the claimant was losing 20 hours per week of overtime pay by working in the grocery department, as the claimant produced witnesses who testified that overtime was still available in the meat department. The commissioner awarded the claimant 104 weeks of benefits under § 31-308a based on this loss of overtime pay. The respondent has appealed from that award.
We begin by noting that the commissioner’s findings regarding the current availability of overtime in the meat department and the cause of the claimant’s transfer to the grocery department are both supported by evidence. Specifically, the testimony of Jesus DeJesus and Michael Hasty support the former finding, and the May 11, 1990 report of Dr. Luchini supports the latter. This Board cannot review the conclusions of the commissioner when they depend upon the weight of the evidence and the credibility of the witnesses. Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). If there is evidence to support the commissioner’s factual findings, they must stand. Id.; see also Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Consequently, we must accept for the purpose of this appeal that overtime would have been available to the claimant had he remained in the meat department, and that his transfer to the grocery department was caused by his compensable injury.
The respondent argues that § 31-308a does not contemplate the inclusion of overtime pay in calculating additional benefits for permanent partial incapacity. At the time of injury, the statute provided “[i]n addition to the compensation benefits provided by section 31-308 . . . the commissioner . . . may award additional compensation benefits for such partial permanent disability equal to two-thirds of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury and the weekly amount which such employee will probably be able to earn thereafter . . . .” The respondent argues that the use of the term “wages” in § 31-308a instead of the term “average weekly earnings,” which is used in §§ 31-307 and 31-308(b) C.G.S., e.g., suggests that the legislature did not intend overtime pay to be included in § 31-308a wage calculations.
We disagree with the respondent’s interpretation of the term “wages.” First, § 31-310 C.G.S. provides that the “average weekly wage” of an injured worker shall be ascertained by dividing his “total wages received” during a certain period by the number of weeks worked in that period. The respondent concedes that this calculation includes overtime pay. We do not see why “total wages” would necessarily include overtime pay, while the term “wages currently earned” in § 31-308a would not. Contrary to the respondent’s argument, this minor difference in statutory language hardly demonstrates a clear legislative intent to exclude overtime pay from § 31-308a calculations.
Second, our Appellate Court has held that “[w]ages and earnings are broad terms that include ‘[e]very form of remuneration payable . . . for personal services . . . .’ Black’s Law Dictionary (6th Ed.). Salary, by contrast, is a term that is more limited in its scope. It refers to an employee’s base pay prior to the inclusion of overtime pay or other salary enhancements.” Vecca v. State, 29 Conn. App. 559, 563 (1992), affirming 9 Conn. Workers’ Comp. Rev. Op. 280, 1123 CRD-8-90-10 (Dec. 16, 1991). In Vecca, the Appellate Court interpreted our Supreme Court’s holding in Jones v. Mansfield Training School, 220 Conn. 721 (1992), as a sub silentio determination that the term “salary” is more restrictive than the terms “earnings” and “wages” in the context of our workers’ compensation laws, and held that “full salary” as used in § 5-142(a) did not include overtime pay. This holding directly contradicts the respondent’s contention that the term “wages” does not normally include overtime pay under the Workers’ Compensation Act.
We also find little merit in the respondent’s argument that neither the legislative history nor the equity of this case supports the inclusion of overtime pay in the claimant’s wages. In its brief, the respondent cites the statement of a union representative who testified before the legislature that the Public Act now codified as § 31-308a would allow a worker to receive “two-thirds of the difference between what he was receiving on the lower paying job and what he actually would have earned in the previous position.” (Emphasis added.) Here, the commissioner determined that the claimant actually would have earned overtime pay as well as his regular salary had he remained at his job in the Meat Distribution Center. Therefore, the statutory purpose cited by the respondent would support the inclusion of overtime pay in this claimant’s wages.
We also note that such a result is hardly inequitable where the commissioner specifically finds that the claimant would have earned the overtime pay if he had not been injured. The fact that such work was not guaranteed to the claimant by the applicable collective bargaining agreement does not change the fact that, based on the commissioner’s findings, the claimant actually would have earned four hundred fifty dollars per week more than he was able to earn in the grocery department. This does not unfairly punish the employer, nor does it immunize the claimant from the uncertainty of overtime availability. The commissioner’s findings establish that in this case, overtime would have been available to the claimant had he remained a meat department employee. He is merely being compensated for the loss of earning capacity resulting from his particular injury in these particular circumstances, which is the essence of a § 31-308a discretionary award.
The trial commissioner’s decision is affirmed.
Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.
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