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CASE NO. 1894 CRB-8-93-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 19, 1995
The claimant was represented by Robert F. Carter, Esq., Carter & Civitello, Woodbridge Office Park, One Bradley Road, Suite 301, Woodbridge, CT 06525.
The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.
This Petition for Review from the November 4, 1993 Finding and Award of the Commissioner acting for the Eighth District was heard October 28, 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 respondents have petitioned for review from the November 4, 1993 Finding and Award of the Commissioner for the Eighth District. They argue on appeal that the claimant’s profit sharing checks should not have been included as wages in determining the claimant’s compensation rate under § 31-310 C.G.S. We affirm the trial commissioner’s decision.
The claimant suffered a compensable pelvic fracture on September 29, 1991, for which he was paid compensation and medical expenses. During the 26 weeks preceding the injury, the claimant received two profit sharing checks for $468.90 and $485.10. Social Security and federal withholding taxes were deducted from these checks. The respondent’s manager for labor and employee relations testified that under the appropriate collective bargaining agreement, these payments were “add on” for earnings purposes and were not to be used for calculating workers’ compensation benefits. A technician employed by the claimant’s collective bargaining agent who was present at negotiations over the 1990 union agreement testified that there was no understanding that profit sharing was to be excluded from the calculation of workers’ compensation benefits.
After reviewing all the evidence, the commissioner found that the profit sharing checks were based upon a figure of 90 cents per hour worked by the claimant, and therefore concluded that the checks should be included as wages within the definition of the Workers’ Compensation Act. He further found that the collective bargaining agreement did not bar inclusion of profit sharing in weekly wage calculation, but reasoned that the point was moot because a collective bargaining agreement cannot supersede the mandate of the Workers’ Compensation Act anyway. The commissioner ordered payment of temporary total disability benefits at a compensation rate that took into account the profit sharing checks. The respondents appeal from that decision.
Section 31-310(a) requires the commissioner to consider the “total wages received” by an employee in determining his or her compensation rate. The term “wages” is not defined in the Workers’ Compensation Act. 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.” In Ericson v. Perreault Spring & Equipment Co., 9 Conn. Workers’ Comp. Rev. Op. 171, 172, 1008 CRD-5-90-4 (July 17, 1991), this Board held in a situation similar to this case “if the evidence shows that the year end [profit sharing] payment was understood by the parties to be allocable to all the weeks worked in the preceding year, then those amounts may very well be included in the Sec. 31-310 calculation of average weekly wage.”
Relying on the language of the collective bargaining agreement, the respondents argue that the parties clearly intended not to consider profit sharing checks as wages, but as fringe benefits, and that the United States Supreme Court has ruled that fringe benefits cannot be considered wages. Morrison-Knudsen Construction Co. v. Director, Office of Workers’ Compensation Programs, 461 U.S. 624 (1983). The agreement states that “Individual Profit Sharing payments to an employee shall be an “add on” for earnings purposes and shall not be part of an employees Standard Hourly Wage Scale Rate and shall not be a part of the participant’s pay for any other purposes and shall not be used in the calculation of any other pay, allowance or benefit.” The respondent cites this language as proof that the parties did not intend to consider these payments as wages. See Thibeault v. General Outdoor Advertising Co., Inc., 114 Conn. 410 (1932).
There was conflicting testimony from witnesses to the union contract negotiations, however, regarding the scope of that provision. The commissioner was entitled to decide for himself which testimony was more credible, and to use that in determining what weight and meaning to give the relevant provisions of the collective bargaining agreement. Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979); Collello v. Dresser Industries, 1691 CRB-4-93-4 (decided Nov. 3, 1994). Moreover, the commissioner specifically found that the profit sharing checks were based on a figure of 90 cents per hour worked during the preceding quarter, which conclusion is borne out by the language of the 1990 collective bargaining agreement. Thus, as we discussed in Ericson, supra, the commissioner was entitled to conclude that the profit sharing payments were allocable to the hours worked by the claimant, and had the discretion to decide that those payments were wages within the meaning of § 31-310. It is not the place of this Board to second-guess the factual findings of the commissioner, and we will not do so. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Adzima, supra.
The trial commissioner’s decision is affirmed.
Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.
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