State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Donahue v. Town of Southington

CASE NO. 4136 CRB-06-99-10



NOVEMBER 30, 2000











The claimant was represented by Andrew Morrissey, Esq., 203 Church Street, P. O. Box 31, Naugatuck, CT 06770.

The respondents were represented by Richard Bartlett, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

This Petition for Review from the October 15, 1999 Finding and Award of the Commissioner acting for the Sixth District was heard June 16, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.


JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the October 15, 1999 Finding and Award of the Commissioner acting for the Sixth District. They do not dispute that the claimant sustained compensable injuries to his neck and back on December 9, 1995, resulting in 2.5% permanent partial impairment ratings to his cervical and lumbar spines. Their argument on appeal concerns his weekly compensation rate. Because the claimant did not have contributions for Medicare or Social Security deducted from his wages, the trier ordered that the claimant’s benefit rate be calculated without using the tables prepared and promulgated by this Commission. The respondents claim that this ruling was legally erroneous. After considering their argument, we affirm the trial commissioner’s decision.

The relevant facts in this case have been stipulated by the two parties. Claimant’s Exhibit A. Therefore, the deference that we normally give to a trial commissioner’s findings plays no role here. See Pietraroia v. Northeast Utilities, 254 Conn. 60, 75 (2000). We must draw our own legal conclusion from the following set of enumerated facts that are pertinent to our inquiry. The claimant, a municipal police officer for the Town of Southington, worked pursuant to a contract that had been negotiated by the town and a labor organization representing police officers. The officers covered by this agreement have no Social Security deduction taken from their weekly wages, and those hired before 1986 (such as the claimant) have no Medicare withheld. Instead, each has 6% of his regular pay taken out as a contribution to the Police Pension Fund. This percentage is withheld from regular pay only, and is not deducted from overtime or extra duty time that the officers earn. Upon retirement, police officers become eligible to recover pension payments pursuant to a pension fund schedule.

Whether a claimant is entitled to temporary total disability benefits under § 31-307, temporary partial disability benefits under § 31-308(a), permanency benefits under § 31-308(b) and § 31-308a, or dependent death benefits under § 31-306, the formula for calculating his compensation rate attempts to take into account deductions for federal taxes, state taxes, and the Federal Insurance Contributions Act. A typical example of this statutory feature is the language of § 31-308(b), which provides that the claimant’s compensation “shall be seventy-five per cent of the average weekly earnings of the injured employee, calculated pursuant to section 31-310, after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act made from such employee’s total wages received during the period of calculation of the employee’s average weekly wage pursuant to said section 31-310 . . . .” Each of the other sections mentioned also contains similar language regarding standard withholding deductions. For our purposes here, they may be treated identically.

While § 31-310(a) sets forth rules for calculating a claimant’s average weekly wage, § 31-310(b) provides, in relevant part:

Each August fifteenth, the chairman of the workers’ compensation commission, in consultation with the advisory board, shall publish tables of the average weekly wage and seventy-five per cent of the average weekly wage after being reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act, to be effective the following October first . . . . Such tables shall be conclusive for the purpose of determining seventy-five percent of the average weekly earnings of an injured employee after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act made from such employee’s total wages received during the period of calculation of the employee’s average weekly wage for purposes of sections 31-306, 31-307 and 31-308.

The trial commissioner recited this language in his decision. He also noted that this Commission issued a memorandum on November 22, 1996 setting forth a manual formula for calculation of compensation rates for weekly wages which have no FICA deductions. As the claimant had no FICA deductions from his wages, the trier concluded that the tables published pursuant to § 31-310(b) should not be utilized to calculate the claimant’s compensation rate. He instead ordered that an alternative manual calculation be performed. The respondents have appealed that decision to this board.

Prior to 1991, a claimant’s compensation rate was calculated by simply taking sixty-six and two-thirds percent of his gross average weekly earnings as of the date of his injury. In order to lower workers’ compensation insurance costs for Connecticut businesses, P.A. 91-339 changed this amount to eighty percent of a worker’s net average weekly earnings (earnings after deductions for taxes and FICA). See Barton v. Ducci, 248 Conn. 793, 816 (1999). A further cost-cutting effort in P.A. 93-228 saw this percentage lowered to seventy-five, where it stands today. Id. As the respondents point out in their brief, a logical and intended effect of these changes would be to prevent workers from receiving as much or more in weekly workers’ compensation benefits than they would normally receive in after-tax take-home pay at their jobs. See 34 H.R. Proc., Pt. 24, 1991 Sess., p. 9074 (remarks of Rep. Schissel). The respondents object that these legislative purposes would be frustrated by accepting the claimant’s position, as he would receive more per week under the formula specified in this Commission’s 1996 Memorandum ($585) than he would if we adhered to the § 31-310(b) tables ($526.59).

The claimant, however, counters this argument effectively. First, he observes that the claimant’s compensation rate would still be less under his advocated method of wage calculation ($585) than it would have been under the old law ($678.73, representing two-thirds of the claimant’s $1,018.09 average weekly wage). See Claimant’s Exhibit A. Thus, the legislative “cost-cutting” purpose behind the 1991 statutory change from gross earnings to net earnings would still be realized, albeit to a slightly lesser degree.

Second, and more importantly, he illuminates the legislative history of § 31-310(b), which shows that the House of Representatives rejected a bill that would have made use of the tables mandatory for all employees, including those who did not have deductions withheld from their wages. 1993 H.B. 6939, § 19(b).1 The claimant asserts that, given the inherent ambiguity of the statutory language, the legislative history supports the use of alternate methods of calculating wages for employees who do not have FICA contributions taken from their pay. We find this argument to be persuasive. The claimant sets forth a plausible argument that the words “made from” as used in § 31-310(b) would be rendered superfluous if the same adjustments were made for all claimants, whether or not FICA deductions were actually taken. In interpreting statutes, we must presume that the legislature does not intend to enact meaningless sentences, phrases and clauses. Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 303 (1997). There is nothing in the statute that overtly suggests that the tables were intended to apply to claimants who do not in fact have standard FICA deductions made from their gross weekly wages. We recognize that the language of House Bill 6939 could have been adopted had the legislature wished to make the tables universal.

The claimant also highlights comments that were made on the floor of the House by Rep. Lawlor while he was attempting to clarify the contents of P.A. 93-228. He explained, “There is no deduction for social security payments which are not paid by certain employees. For example, some Connecticut State Police troopers do not pay into social security. Some of the previous amendments that had been considered would have required a deduction for that amount, even though those employees did not pay into social security.” 36 H.R. Proc., Pt. 18, 1993 Sess., p. 6254-55. These comments bolster the inference that we have drawn from the legislature’s decision not to pass H.B. 6939, and indicate that the issue before us here is one that was directly brought to the attention of the legislature during the debate surrounding P.A. 93-228. By leaving the language of § 31-310(b) intact, we believe that they were ratifying the notion that the tables are inapplicable to employees who are not required to remit weekly FICA deductions. Therefore, this Commission acted appropriately in issuing a memorandum to the various commissioners that provides methods for adjusting weekly benefit amounts for claimants who are not subject to FICA and/or Medicare deductions, and the trier was correct in ordering the parties to implement the calculations suggested by that memorandum.

The effect of the formulas in the November 22, 1996 memorandum is to restore the amount of the erroneous FICA deductions to the claimant’s weekly benefit rate. The respondents argue that it is improper to use a compensation rate formula that ultimately fails to deduct the contributions made by the claimant to the Police Pension Fund, as this violates constitutional guarantees of equal protection by creating two separate classes of employees.2 Not being an Article III court under the U. S. Constitution or an Article Fifth, § 1 court of the Connecticut Constitution, this board lacks the power to adjudicate the constitutionality of statutes. Fish v. Caldor, Inc., 3840 CRB-7-98-6 (May 11, 1999). Where more than one interpretation of a statute is possible, though, we may consider constitutional arguments insofar as they aid our effort to apply the law in a permissible manner. Weber v. Electric Boat, 4086 CRB-2-99-7 (November 13, 2000).

In workers’ compensation cases of this ilk, our courts have ruled that the proper standard of review for an equal protection challenge is the “rational basis” test. This requires the reviewing body to decide whether the purpose of the legislation is a legitimate one and whether the particular enactment is designed to accomplish that purpose in a fair and reasonable way. Barton, supra, 814; Luce v. United Technologies Corp., 247 Conn. 126, 144-45 (1998). Of course, this board does not have jurisdiction to judge the legitimacy of the legislature’s purposes, or the reasonableness of its stated means of attaining those goals. Still, if comparable cases have been decided by our courts, we must look to them in order to gauge whether the most viable interpretation of an ambiguous statute appears likely to be violative of equal protection standards.

Based on our reading of Barton, supra, and Luce, supra, we do not think it likely that our Supreme Court would hold that the constitution prohibits the interpretation of § 31-310(b) advanced by the claimant in this case. The Court has already found that the legislature could rationally exclude skin as a scheduled body part under § 31-308(b) while providing permanent partial impairment benefits for other enumerated organs. Barton, supra. The Court has also found that it was rational and permissible for the legislature to exclude certain fringe benefits from an injured employee’s workers’ compensation award even though healthy employees continue to receive the same fringe benefits from their employers. Luce, supra. The alleged equal protection infraction in this case strikes us as similar to the alleged infractions in Luce and Barton, and we are disinclined to alter our interpretation of § 31-310(b) in light of the respondents’ constitutional argument. Therefore, we hold that the trial commissioner properly instructed the parties to calculate the claimant’s benefit rate by using a manual calculation method such as the one in the November 22, 1996 memorandum that was distributed to the district offices of this Commission.

The trial commissioner’s decision is accordingly affirmed. Insofar as the claimant may not have yet received benefits due pursuant to the trier’s decision, § 31-301c(b) requires that we award interest on those amounts.

Commissioners Robin L. Wilson and Leonard S. Paoletta concur.

1 The proposed language in H.B. 6939 would have added a sentence to the end of § 31-310(b) stating, “For purposes of this section, earnings of employees who do not have deductions taken from their wages for the Federal Insurance Contributions Act shall be calculated as though the deduction had been taken.” BACK TO TEXT

2 The respondents do not cite the particular constitutional provisions that they claim have been violated by this interpretation of the statute. From the context of their argument and the cases noted in their brief, we presume that they refer to the fourteenth amendment to the United States Constitution and article first, § 20 of the Connecticut Constitution. See Luce v. United Technologies Corp., 247 Conn. 126, 142 n. 22 (1998). BACK TO TEXT

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