Trankovich v. Frenish, Inc. d/b/a Chamberlain Ambulance

The respondents were represented by Neil Ambrose, Esq., Letizia & Ambrose, 1764 Litchfield Tpke., Suite 106, Woodbridge, CT 06525.

This Petition for Review from the April 21, 1995 Finding and Dismissal of the Commissioner acting for the Third District was heard August 16, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Robin L. Wilson and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the April 21, 1995 Finding and Dismissal of the Commissioner acting for the Third District. Appearing pro se on appeal, she contends that the trial commissioner erred by failing to either include wages she earned at her previous full-time job in her compensation rate as concurrent employment benefits, or to restrict the calculation of her average weekly wage to the weeks she worked full-time at her job with the respondent. We have carefully studied the claimant’s case, and have determined that the trial commissioner’s decision should be reversed.1

The claimant injured her left wrist on January 8, 1994 while employed by the respondent Chamberlain Ambulance. This injury was accepted as compensable, and benefits were paid. The claimant’s compensation rate was calculated pursuant to § 31-310 C.G.S. “by dividing the total wages received by the injured employee from the employer in whose service [she was] injured during the fifty-two calendar weeks immediately preceding the week during which [she] was injured, by the number of calendar weeks during which, or any portion of which, the employee was actually employed by the employer . . . .” As the claimant worked part-time for the respondent from 1989 through August 31, 1993, and then began working full-time for the respondent from September 1, 1993 until her injury, her compensation rate was initially calculated on the basis of her total wages during the full 52 weeks preceding her injury. Thus, her weekly benefit rate was based on an average of her full-time and part-time wages.

The claimant argued to the trial commissioner that this method of calculation was inappropriate to her situation. She had worked full-time at another employer, Beiersdorf, Inc., through August 13, 1993, and had supplemented her income by working part-time for the respondent as an emergency medical technician. Once she became a full-time EMT at Chamberlain Ambulance, she quit her job at Beiersdorf. She contends that her part-time employment with Chamberlain Ambulance should not be included in the calculation of her wage rate unless her full-time employment with Beiersdorf is considered to be concurrent employment under § 31-310. The trial commissioner found that she did not change job duties when she increased her hours at Chamberlain Ambulance, and that she did not enter into a new contract of employment as of September 1, 1993. He also found that she did not have concurrent employment on the date of her injury. Therefore, he denied the claimant’s claim for an adjustment of her compensation rate using only her full-time employment from September 1, 1993 through January 8, 1994, nor did he consider an alternative adjustment based on her prior employment at Beiersdorf. The claimant has appealed that decision.

Section 31-310(a) makes concurrent employment benefits available 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 he was injured . . . [is] insufficient for him to obtain the maximum weekly compensation rate from the employer under section 31-309.” In such a case, the claimant’s average weekly wage is calculated on the basis of the total wages earned from each employer during the period of concurrent employment, with the Second Injury Fund ultimately responsible for the pro rata share of the compensation rate attributable to outside employers. See Grillo v. Prestige Enterprises, Inc., 13 Conn. Workers’ Comp. Rev. Op. 311, 313-14, 1704 CRB-1-93-4 (April 25, 1995) (employer must file a Form 44 to invoke Fund liability for concurrent employment benefits).

The statute only applies, however, when the claimant has worked “for more than one employer as of the date of the injury.” (Emphasis added). In Haugh v. Leake & Nelson, 9 Conn. Workers’ Comp. Rev. Op. 148, 149, 1066 CRD-8-90-7 (June 5, 1991), this board held that a claimant who had worked only three weeks for his employer prior to his injury could not have his average weekly wage recalculated to include wages earned from other employers during the twenty-six weeks2 preceding his injury. There is simply no reasonable reading of § 31-310 that allows concurrent employment benefits to be paid where the claimant is not working for more than one employer at the time of her injury. Therefore, the wages earned by the instant claimant at Beiersdorf would not be eligible for inclusion in her compensation rate.

Nevertheless, this board recognizes the inequity partially fostered by the omission of those wages in the peculiar situation before us. Calculating the claimant’s benefit rate based on her total compensation received from the respondent employer during the 52 weeks preceding her injury leaves her with a weekly benefit rate far lower than the pay she actually took home during any given week in that time period, and places her in an undeservedly difficult economic position. This formula does not account for the fact that the claimant worked at least 40 hours per week during the entire year preceding her injury, and punishes her simply because she remained with her former part-time employer when she switched full-time jobs. The maintenance of a workers’ compensation system in which an industrious claimant is seriously undercompensated because of a fluke result in the way her claim dovetails with the language of the statutes is not at all consistent with the humanitarian and remedial spirit of our Workers’ Compensation Act. See Dubois v. General Dynamics Corp., 222 Conn. 62, 67 (1992). When the humanitarian purpose of the Act is clearly opposed to a particular interpretation of the statute, a broader construction should be adopted. Id., citing Adzima v. UAC/Norden Division, 177 Conn. 107, 117 (1979).

In this case, the trial commissioner made a finding that the claimant had not entered into a new employment contract when she increased her hours from 22 to 40 per week, and declined to apply § 31-310 accordingly. Because the claimant failed to file a Motion to Correct, we may not disturb the commissioner’s finding that there was no new contract of employment. Bell v. U.S. Home Care Certified of Connecticut, 13 Conn. Workers’ Comp. Rev. Op. 294, 295, 1792 CRB-1-93-8 (April 21, 1995), affirmed, 40 Conn. App. 934 (1996) (per curiam). However, it was still undisputed that the claimant had worked full-time at Beiersdorf while working part-time at Chamberlain Ambulance, and that she had ceased working at Beiersdorf when she went to Chamberlain full-time.

The calculation of the claimant’s average weekly wage using only part of the wages she was earning during the time period she worked for both Beiersdorf and Chamberlain Ambulance fails to account for the legislature’s intent to compensate injured workers based on their loss of earning power at the time of their injuries. Mulligan v. F.S. Electric, 231 Conn. 529, 534-35 (1994). By extending § 31-310’s 26-week period to 52 weeks in 1993, the legislature was clearly attempting to obtain a more accurate reflection of an injured employee’s salary that would not be affected by seasonal layoffs or slow-downs. Yet, the interpretation of the statute adopted by the trial commissioner here accomplishes the opposite result under these facts: it inaccurately reflects the claimant’s salary. Under the facts of this particular case, we hold that § 31-310 should not have been interpreted to require an examination of the entire 52-week period that the claimant worked for Chamberlain Ambulance, because the claimant’s concurrent employment during part of that year could not be taken into account in her compensation rate. Instead, the commissioner should have utilized only the wages earned by the claimant subsequent to her cessation of employment with Beiersdorf, Inc., even if he did not find that a new contract began on September 1, 1993. The case is thus remanded for reconsideration of the claimant’s compensation rate in that light.

Commissioner Michael S. Miles concurs.

ROBIN L. WILSON, COMMISSIONER, DISSENTING. It has long been an axiom of statutory interpretation that there is no need to discern the legislative intent or policy behind a statute when its language is clear and unambiguous. All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 195 (1989). I fail to see where § 31-310 can reasonably be called unclear. The statute specifically states that the claimant’s average weekly wage must be determined by dividing the number of weeks worked by the claimant into the total wages received by the claimant from the employer. It is also specific in stating that only concurrent employment as of the date of injury can be factored into a compensation rate. Both of those provisions were accurately followed in this case. As the majority notes, the commissioner found no new employment contract, and the claimant did not file a Motion to Correct. The findings thus support the commissioner’s decision. I would uphold the commissioner’s denial of the claimant’s request for recalculation of her compensation rate, as it is not the prerogative of this board to act as a super-legislature when it so chooses.

1 The respondents’ motion to dismiss the claimant’s appeal was denied on April 19, 1996. BACK TO TEXT

2 At that time, § 31-310 made the average weekly wage dependent on total wages received from the employer during the 26 weeks prior to the claimant’s injury, as opposed to the current 52 weeks. BACK TO TEXT