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CASE NO. 4547 CRB-5-02-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 29, 2003
GENESIS ELDER CARE CORP.
LIBERTY MUTUAL INSURANCE CO.
The claimant was represented by Bruce E. Newman, Esq., Newman, Creed & Associates, 99 North Street, Route 6, P.O. Box 575, Bristol, CT 06010.
The respondents were represented by William C. Brown, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.
This Petition for Review from the June 27, 2002 Finding and Dismissal of the Commissioner acting for the Fifth District was heard January 24, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Howard H. Belkin and Nancy A. Brouillet.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the June 27, 2002 Finding and Dismissal of the Commissioner acting for the Fifth District. She contends on appeal that the trier erred by incorporating 46 weeks of part-time wages into her average weekly wage, despite the fact that she had switched to a full-time position with the same employer six weeks prior to her compensable injury. We find no error of law, and affirm the trial commissioner’s decision.
The claimant began working for the respondent Genesis Elder Care Corp. (Genesis) in 1979. She is a registered nurse, and worked part-time for her employer at the Glendale Health Care Center without a written contract from the time of her hire until 2001. On or about April 1, 2001, she became a full-time employee. She sustained a compensable injury on May 10, 2001. The trial commissioner found that the duties and responsibilities of Genesis employees did not change depending on the number of hours worked. Though the claimant’s work week had been lengthened during the weeks immediately prior to her injury, her duties and responsibilities at the skilled health care facility did not change substantially. The trier thus held that the claimant’s average weekly wage was to be determined under 31-310 C.G.S. by considering her earnings during the 52 weeks prior to the date of injury, rather than restricting consideration to the weeks she worked full-time. The claimant has appealed that ruling to this board.
In her brief, the claimant argues that her employment position changed as of April 1, 2001, when she became a shift supervisor and began working full-time, meriting a salary increase and an improved benefits package. This allegedly moved her into a different employee status based on the categories that Genesis maintained for its workers. According to the claimant, the trial commissioner’s finding that she had not entered into a new employment relationship as of April 1, 2001 is contrary to her testimony, that of Erika Goode, the Administrative Manager of the health care center, and that of Sue Jacoboski, its Director of Nursing. In opposition to this argument, the respondents submit that, based on her job description, the claimant’s workplace responsibilities were indeed similar before and after her move to full-time work. They contend that there was sufficient evidence in the record to support the trier’s findings of fact.
There have been past cases in which a claimant’s shift from part-time to full-time work has not been construed as a cessation of the old employment contract, thereby causing the claimant to receive a lower compensation rate than she would have if a new contract had been identified. See Trankovich v. Frenish, Inc., 3053 CRB-3-95-4 (Jan. 3, 1997), rev’d, 47 Conn. App. 628 (1998)(claimant stopped working at computer operating job when she became a full-time emergency medical technician; as no new employment contract with ambulance company had been formed, claimant could not disregard eight months of part-time wages with such company in figuring compensation rate, nor could she consider prior work as computer operator concurrent employment within § 31-310). We have observed that this Commission may not devise and implement modified means of calculating compensation rates in situations where the strict application of § 31-310 reaches an arguably inequitable result. Hannan v. George A. Tomasso Construction Corp., 3589 CRB-2-97-4 (Aug. 18, 1998)(where application of concurrent employment provisions would result in overall decrease in average weekly wage, trier may opt not to apply that portion of statute in calculating compensation rate, rather than attempting to construct modified formula for determining said rate). Thus, where a claimant’s single period of employment extends over a span that incorporates both full-time and part-time work, this board cannot provide relief from the effects of the 52-week average weekly wage formula.
The primary case in favor of the claimant’s position is Estabrook v. State, 3 Conn. Workers’ Comp. Rev. Op. 79, 310 CRD-2-84 (Nov. 5, 1986). There, the claimant had been hired on an intermittent part-time basis two months prior to her injury, and was then placed on full-time duty several weeks later. The trial commissioner found that this shift from part-time hourly pay to the full-time payroll constituted a new contract of employment, and calculated the claimant’s average weekly wage based solely on the full-time wage. In affirming that decision, this board observed that the State Personnel Act’s list of definitions in § 5-196 C.G.S. prescribed different definitions for full-time and part-time employees, and that a separate category was created by § 5-235(a) for intermittent employees, who had fewer rights than did permanent employees. We explained, “Although it is not clear from the finding whether Claimant was an ‘intermittent’ or a ‘temporary’ employee, either of those statuses is contractually different from ‘full-time’ employee. Therefore, the claimant had entered into a new contract of employment . . . .”
The facts in Estabrook may be reminiscent of those in the instant case, but the trier there found that a new contract had been formed. Here, the trier made a contrary factual finding, and Estabrook does not support our overturning his finding regarding the absence of a new employment relationship. In considering the evidence below, the trial commissioner had the discretion to weigh the relevant testimony and make findings accordingly, and this board may not substitute its own inferences for those drawn by the trier of fact. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002). If there is evidence in the record to support the findings, and the law has been applied correctly to those findings, we must affirm the trier’s decision. Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001).
No live testimony was offered at the formal hearings in this case. Instead, the depositions of Goode, Jacoboski, and the claimant were submitted into evidence. From Goode’s deposition, it appears that a full-time position with Genesis entitles the employee to a better benefits package than does a part-time nursing position. Claimant’s Exhibit A, p. 32. In the case of a registered nurse providing direct care to patients, Genesis defines “full-time” employment as being regularly scheduled to work 30 or more hours per week. Id., pp. 39-40. A formal switch from part-time to full-time status requires approval from the director of nursing along with a decision by the employee to work more hours per week. Id., p. 87. The claimant’s change in status occurred as of April 1, 2001, commencing an hourly pay increase. Id., pp. 41-42.
Jacoboski testified that the claimant was not hired full-time to be a management-level shift supervisor, which differed from the position of regular shift supervisor. Claimant’s Exhibit C, pp. 81, 85. The general job description of a shift supervisor at Genesis was no different than that of a regular registered nurse. Claimant’s Exhibit C, pp. 44, 64, 77, 86. Upon becoming a full-time worker, the claimant was frequently designated on an informal basis as the shift charge nurse, as she was one of the more experienced nurses on the staff. Id., pp. 51, 63, 74.
The claimant confirmed in her testimony that she did not sign a contract when she was hired, nor did she sign a modified job description upon going full-time. Claimant’s Exhibit D, pp. 4, 12. She explained that her job duties as an RN had always involved staff floor nursing, including caring for patients and distributing medications. Id., pp. 5-6. She also explained that there were times when she had acted as a charge nurse for the whole facility even when she was a part-time employee, which responsibility would be randomly assigned among the nurses present on a day-to-day basis. Id., p. 8. After becoming a full-time worker, she was usually designated ahead of time as the RN supervisor during her shift, and acted in that capacity. Id., p. 13. Having been relieved of responsibility for one floor, she was able to make rounds, which she did not do prior to April 1, 2001. Id., p. 14. She also took more responsibility for making sure that there was proper nursing coverage, and that the building was secure at night. Id., p. 18. She explained that she did not do this when she was in charge of the building prior to April 1, 2001, because there were other people to do it then. “When I was supervisor I would do it. I tried to cover everything.” Id., p. 19. “I felt I was in charge and I should - that is my job to go and check everything out.” Id., p. 22.
Though the claimant may have assumed some additional responsibilities upon moving from part-time to full-time status, the evidence does not conclusively demonstrate that her job duties changed significantly enough to require a finding that a new contract of employment had been formed. Unlike the Estabrook case, there is no clear statutory definition applicable to these facts that draws a clear line between the status occupied by the claimant as a part-time worker and as a full-time worker. The facts simply show that she was approved for full-time work, her pay increased, and her duties became somewhat more expanded due to her being less tied to a particular floor of the facility. They do not indisputably demonstrate that her previous status as a staff nurse had effectively terminated in favor of a new position. It is equally logical to assume that the claimant’s presence as a full-time nurse and long experience in the job made her the best choice among her peers to act in a supervisory capacity while the position of management supervisor remained unfilled. We cannot say that the trier erred in drawing the factual conclusions that he did from the evidence in the record. Thus, we must uphold his finding that the claimant did not enter into a new employment contract as of April 1, 2001, and his consequent order that her earnings for the 52 weeks prior to her injury had to be considered in determining her average weekly wage under § 31-310.
The trial commissioner’s decision is accordingly affirmed.
Commissioner Howard H. Belkin concurs.1
1 As noted in the heading of this opinion, this matter was originally heard on January 24, 2003, by a three-commissioner panel of the Compensation Review Board that included Nancy A. Brouillet, whose term of service has since expired. Former Commissioner Brouillet did not participate in the drafting or review of this written opinion, and has had no involvement in the issuance of this decision. BACK TO TEXT
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