Smith v. Anthea & Christopher Yurkovsky

The claimant was represented by Lisa M. Kolb, Esq., Gillis & Gillis, Two Whitney Avenue, Suite 502, New Haven, CT 06510.

The respondents were represented by Robert Miller, Esq., Sholes & Miller, 300 Westage Business Center, Suite 375, Fishkill, NY 12524.

This Petition for Review from the December 13, 2000 Finding Re: Jurisdiction of the Commissioner acting for the Third District was heard July 20, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and James J. Metro.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the December 13, 2000 Finding of the Commissioner acting for the Third District. In that decision the trial commissioner concluded that the claimant, who provided nursing services to Anthea Yurkovsky in the respondents’ home, was an employee of the respondents at the time of her alleged injury on April 16, 1998. In support of their appeal, the respondents contend that the trial commissioner incorrectly interpreted the exemption provision of § 31-275(9)(B)(iv), which excludes from the definition of “employee” any person working at a private residence “provided he is not regularly employed by the owner or occupier over twenty-six hours per week.”

The trial commissioner found the following relevant facts. On or about July 1, 1995, the claimant began working for the respondents, Christopher and Anthea Yurkovsky. The claimant was a certified home health aide, and was hired by Christopher Yurkovsky to care for his mother, Anthea, who suffered from Alzheimer’s disease and required constant care. Initially, the claimant worked 4 to 9 hours per week, gradually increasing her hours, particularly around tax season from January 1st to April 15th. The respondent Christopher Yurkovsky worked for H & R Block during the tax season from January 1st to April 15th and because the claimant had to “cover” for him, her hours increased during this period. Every year that the claimant worked for the respondents, Mr. Yurkovsky would inform the claimant in advance that tax season was approaching and that he would need the claimant to work more hours.

The trial commissioner found that during the 1996 tax season, the claimant’s hours increased to 17.4 per week; during the 1997 tax season, the claimant averaged 27.33 hours per week; and the claimant “worked approximately an average of 29.38 hours per week nine… out of the 16 weeks during the 1998 tax season.” (Findings, ¶ 18, as amended by 1/5/2000 Correction of Finding). The trial commissioner also found that the claimant worked over 26 hours during the week preceding her injury. The trial commissioner concluded that the claimant “was regularly employed over 26 hours per week during the 1997 and 1998 tax season,” and that the pattern of her employment from 1995 through 1998 showed a consistent increase during tax season to over 26 hours per week, which would have continued in future tax seasons. Findings, ¶ 25-27. The trial commissioner thus concluded that the claimant was not excluded from the definition of “employee” under the exemption provision of § 31-275(9)(B)(iv). The respondents have appealed that ruling to this board.

In support of their appeal, the respondents contend that the trier erred in concluding that the claimant was regularly employed over 26 hours per week, and thus not exempt under § 31-275(9)(B)(iv). In their view, because the claimant normally worked less than 26 hours per week during most weeks of the year, she was not “regularly employed” over 26 hours per week. They contend that the trier arbitrarily focused upon the 16 weeks prior to the claimant’s injury and the 16-week “tax season” period in the two prior years. The respondents maintain that the trier’s calculations are misleading, as the evidence indicates that the claimant was never employed more than 26 hours per week on average during any “relevant” period. They define “relevant” as annually, semi- annually, or quarterly. Specifically, they explain that the claimant worked 24.15 hours per week on average during the first quarter of 1998; 18.6 hours per week on average during the 26 weeks prior to the alleged injury; and 15.3 hours per week on average for 52 weeks prior to the alleged injury. Further, regarding the finding that she worked an average of 29.38 hours per week for nine out of the 16 weeks during the 1998 tax season (Findings, ¶ 18, as amended by 1/5/2000 Correction of Finding), the respondents counter that the claimant actually worked an average of 25.4 hours per week during the tax season if all 16 weeks are considered. The calculation of 29.38 hours per week in the above Finding selectively ignores the remaining seven weeks of work.

The respondents observe that by arbitrarily focusing upon the 16-week period prior to the alleged injury, rather than by looking at a regular period of time such as 52 weeks or 26 weeks, the application of § 31-275(9)(B)(iv) becomes unpredictable, thereby making it difficult for homeowners to determine whether workers’ compensation insurance is necessary. We share this concern. When § 31-275(9)(B)(iv) was originally adopted in 1961, it did not include the term “regularly.” In 1969, the section was amended by adding the word “regularly” to its text, but did not explicitly define the word by statute. In normal parlance, “regularly” would mean the same thing as “customarily, usually or normally.” See American Heritage Dictionary, 2nd Ed. More formally, it may also mean, “At fixed and certain intervals, regular in point of time. In accordance with some consistent or periodical rule or practice.” Black’s Law Dictionary, 5th Ed. Though “regularly” has no statutorily-set meaning in this context, it clearly must be given a meaning that would allow employers to predict when workers’ compensation insurance will be necessary for employees. This would necessarily have to be done by attributing to the word “regularly” some ascertainable boundaries.

When we are called upon to interpret ambiguous language in a law, our primary goal is to “ascertain and give effect to the apparent intent of the legislature….” O’Neil v. Honeywell, Inc., 66 Conn. App. 332, 336 (2001). Regarding statutory construction, our Appellate Court has explained as follows:

Id., 336. In the instant case, we must interpret the exemption provision of § 31-275(9)(B)(iv), which excludes from the definition of “employee,” “Any person engaged in any type of service in or about a private dwelling provided he is not regularly employed by the owner or occupier over twenty-six hours per week.” The term “regularly” was added in 1969 pursuant to Public Act 69-806 titled: “An Act Concerning Clarifying the Definition of Employee under the Workmen’s Compensation Act.” This Act provided as its statement of purpose: “To clarify that domestic employees, such as babysitters, nurses, etc., who are occasionally hired for a weekend or on a sp[o]radic or emergency basis which may exceed twenty-six hours in a given week, are not included under the workmen’s compensation act.” The legislative history for this change is very limited, and provides no guidance regarding a more specific interpretation of the term “regularly” that is necessary to practically apply the law.

In Vanzant v. Hall, 219 Conn. 674 (1991), our state Supreme Court examined § 31-275(9)(B)(iv), (then § 31-275(5)(D)), and concluded that a claimant who was constructing a barn at the respondent’s residence was excluded from the definition of employee under this section. The court reviewed the original legislative history from 1961, and concluded that the exclusion provision included a worker constructing a barn, and was not limited to workers hired to do babysitting, housekeeping, and gardening. Additionally, the court explained that the review division found that the commissioner had made an implied finding that the claimant’s work week was 20 hours, based upon Finding ¶ 8 which stated: “Claimant’s average weekly wage is found to be $360.00 (20 hours @ 18.00 an hour) for the … job.” Id., 682, fn. 6.

We agree with the respondents’ position that the Vanzant decision is instructive regarding the method of determining whether a claimant is regularly employed over 26 hours per week. The determination in Vanzant that the claimant worked 20 hours per week based upon the calculation of his average weekly wage implies that the average weekly wage formula is also relevant to the issue in our case. As the legislature added the term “regularly” to its exclusion provision for domestic employees without defining such term, it may be presumed to have expected the determination of “regularly” to be informed by the calculation of the employee’s average weekly wage under § 31-310. On October 1, 1969, that provision stated that “the average weekly wage shall be ascertained by dividing the total wages received by the injured workman from the employer in whose service he is injured during the twenty-six calendar weeks immediately preceding that during which he was injured, by the number of calendar weeks during which… such workman was actually employed by such employer….” Absent another definition of “regularly,” we believe that this provision should be used as the framework for defining “regular” employment under § 31-275(9)(B)(iv).

Our conclusion that the term “regularly” should be construed based upon the twenty-six calendar weeks immediately preceding the injury is supported by sound policy considerations as well as the language of the provision itself. By looking to the twenty-six weeks of employment preceding the injury, we adopt a consistent and predictable method to determine whether an employee working at a private residence requires workers’ compensation insurance. In contrast, the trial commissioner’s method of determining the claimant’s weekly hours would vary on a case-by-case basis1 and thus would present an unfair burden to impose upon a homeowner. The following discussion is enlightening:

In that same vein, we also note an Arizona court’s discussion about a statutory requirement that an employer only need cover workers who are “regularly employed,” which was expressly defined as including “all employments, whether continuous throughout the year, or for only a portion of the year, in the usual trade, business, profession or occupation of an employer.” Donahue v. Industrial Commission of Arizona, 871 P.2d 720, 723 (Ariz. C. App. 1993), quoting A.R.S. § 23-902(A). Observing that the legislative definition of “regularly employed” in the statute could be read to differ from a standard dictionary definition of the term, the court explained that the intent behind this requirement was “to avoid the unpredictability of alternating between coverage and exemption as the employer’s labor force periodically fluctuates above and below the minimum required to be subject to the Act.” Donahue, supra, 724. In that case, the court eschewed an inconsistent and fluctuating test that might catch employers unaware. Given the lack of any specific legislative indication to the contrary in § 31-275(9)(B), we believe that policy favors our taking similar concerns into account here. If anything, the absence of a statutory definition for “regularly employed” in our own Act strengthens the importance of recognizing and honoring concerns such as these.

In the instant case, the putative employer could not have been expected to infer from the statute that the term “regularly employed” would have different meanings depending on the proximity of tax season, and the percentage of weeks in which the claimant worked more than 26 hours. In order to avoid such an unpredictable result, we read the phrase “regularly employed… over twenty-six hours per week” in § 31-275(9)(B)(iv) to be based upon the 26-week period preceding the injury in accord with § 31-310 as it existed in 1969. We acknowledge the dissent’s point of view that the 52-week period currently utilized by § 31-310 in the calculation of one’s average weekly wage should be applied here as well, rather than the 26-week period. Although we respect that construction of the statute, we believe that such an interpretation of the law would need to be justified by express legislative action. The amendment to § 31-310 that changed the basis of the average weekly wage calculation from 26 weeks to 52 weeks did not take effect until 1993. Thus, we hold that the trier should adhere to a 26-week period in measuring whether the claimant on average worked more than 26 hours per week for her alleged employer.

The trial commissioner’s decision is vacated and remanded in accordance with the above.

Commissioner Ernie R. Walker concurs.

JAMES J. METRO, COMMISSIONER, DISSENTING. I respectfully dissent. I agree with the majority’s opinion that a predictable method of interpreting the phrase “regularly employed… over twenty-six hours per week” in § 31-275(9)(D)(iv) is needed. I differ insofar as I would apply § 31-310 as it existed at the time of the claimant’s alleged injury, and thus would use a 52-week period rather than a 26-week period. Consistency between § 31-310 and § 31-275(9) is worth pursuing, and the 52-week test was added for a good reason—to prevent undue weight being given to the season in which an injury happens to have occurred (for example, in the case of schoolteachers who are off during the summer months) through the happenstance of an injury date. There is no reason why the same standard should not be applied in measuring the regularity of one’s employment for the purpose of § 31-275(9)(D)(iv). Thus, I would read “regularly employed” to refer to the 52-week period prior to the claimant’s date of injury. In all other respects, I concur with the majority’s reasoning.

1 Here, the trial commissioner based her calculation on the “tax season” but in other cases there would be other busy seasons and slow seasons. BACK TO TEXT