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Kovalik v. E. Stiewing, Inc.

CASE NO. 4905 CRB-7-04-12



FEBRUARY 28, 2006











The claimant was represented by Peter Harvey, Esq., 895 Indian Hill Road, Orange, CT 06477.

The respondents were represented by Ann Marie Keaney, Esq., Morrison Mahoney LLP, Counselors at Law, One Constitution Plaza, 10th Floor, Hartford, CT 06103-1810.

This Petition for Review from the December 17, 2004 Order of the Commissioner acting for the Seventh District was heard September 23, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.


JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from a December 17, 2004 order by the Commissioner acting for the Seventh District. The respondents argue on appeal that the trier applied the wrong method of calculating the claimant’s compensation rate for a compensable injury that occurred while the claimant was working reduced light duty hours because of a prior compensable injury. Upon review, we hold that the statutory language of § 31-310 compels a reversal of the trial commissioner’s decision.

We begin by reviewing the chronological history of these proceedings. In conjunction with a November 26, 2001 pro forma hearing, both parties filed briefs acknowledging that the claimant had suffered a compensable injury on September 13, 2000, which caused him to lose time from work and to receive total disability benefits at the rate of $289.00 per week. The briefs explain that, when the claimant returned to work, it was with restrictions, and the respondent employer could only offer him limited hours. The claimant received temporary partial disability benefits under § 31-308(a) to make up part of the difference between his original wage and the amount he was able to earn working light duty. The insurer on the risk at that time was Sentry Insurance.

The claimant then suffered another injury on March 12, 2001, which left him temporarily totally disabled. In calculating his average weekly wage under § 31-310, the respondents’ workers’ compensation insurer (now Star Insurance, rather than Sentry) used his wages earned during the 52 weeks prior to the second injury to calculate his benefit rate, without accounting for his temporary partial disability benefits. This resulted in a decline in his compensation rate from $289.00 per week to $176.00. The claimant objected that this reading of the act penalized him for having returned to light duty work following his first injury, while the respondents contended that § 31-310 requires the use of this calculation by its plain and unambiguous language.

In his brief, the claimant wrote:

[I]f the claimant’s situation is seen as a relapse from recovery the issue is simple. He is entitled to benefits calculated at the time of his original injury. Relapse and recurrence are not defined in the statute. They are factual determinations to be made by the trial commissioner. Mikula v. First National Supermarkets, 3754 CRB-3-97-12 (May 11, 1999). Here we have a discrete traumatic event, precipitated by the claimant being ordered to perform work in violation of his work restrictions, which, but for the initial disability, likely would not have occurred, and which caused exacerbation of existing disabilities as well as creating additional disabilities. The claimant submits that for purposes of benefit calculation the claimant’s return to temporary total incapacity constitutes a relapse or recurrence under 31-307b.

Claimant’s Exhibit A. The claimant then stated that, even if his injury was viewed as new and discrete rather than as a relapse, he would still be entitled to the same benefits he was receiving after his first injury, as the second injury was causally related to the first. Moreover, in the event that the two injuries were found to have no relationship, the claimant advocated the inclusion of his temporary partial disability benefits in his earnings for purposes of § 31-310 “as a matter of fundamental fairness. . . . It is surely not the purpose of the act to reward the employer for re-injuring its employee.” Id.

The respondent Star Insurance submitted a reply brief stating that, in light of the claimant’s reliance on the provisions of § 31-307b, Sentry Insurance should be cited in as a respondent and found liable for the instant claim. Respondent’s Exhibit 2. The trial commissioner then considered the parties’ briefs, and issued his July 17, 2002 Memorandum of Decision. That opinion stated that it had not yet been established whether the March 12, 2001 injury was a new injury, an exacerbation of the prior injury, or an aggravation of the prior injury. The commissioner then moved into an analysis of the law, explaining that the cases of Trankovich v. Frenish, Inc., 47 Conn. App. 628 (1998) and Hannan v. Tomasso Construction Corp., 3589 CRB-2-97-4 (August 18, 1998) dealt with concurrent employment situations, and were therefore not legally binding with regard to the current claimant’s wage calculation. The trier instead cited several workers’ compensation statutes, including § 31-307b, which provides alternative calculation methods in the event of a relapse or recurrence.

The trier then stated, “The compensation rate to which the Claimant should be entitled is to be calculated in one of two ways: either the rate he was entitled to on the date of his original injury . . . or all earnings together with his supplemental temporary partial disability benefits should be considered his average weekly wage from which his compensation rate can be derived. Such an alternative method of calculating a claimant’s compensation rate cannot appear to be unacceptable when we view the alternative calculation as provided in Sec. 31-307b.” Because the parties had only presented one issue to the trier for determination, that being the method of calculating the claimant’s compensation rate, the trier went on to state that “an approach to address the issue under the provisions of Sec. 31-307b may well bring about a different result. That approach will require factual findings after the submission of appropriate evidence.”

The respondents then appealed that decision to this board. In Kovalik v. E. Stiewing Movers, Inc., 4556 CRB-7-02-8 (August 29, 2002), we dismissed their appeal on the ground that the matter was not yet ripe for review. In that opinion, we noted that the trier had not determined whether the claimant’s injury was a new injury or a recurrence. He had gone only so far as to rule out the possibility that the claimant’s compensation rate would be based solely on the wages he had earned during the 52 weeks prior to the second injury, and had created an alternative calculation method in its place. Because a formal hearing had not yet been held that would allow for the creation of a record with transcripts and exhibits, this board held that it had nothing to examine on review. The board also noted that the trier’s interpretation of the law appeared to be a statement of intent rather than a binding judgment incorporated into an order. “An appellate body such as this board may not render an advisory opinion where no practical relief may be awarded to either party. . . . If and when the trier issues a decision awarding the claimant benefits based upon a new injury date of March 12, 2001, this case will then be ripe for the filing of a petition for review.” Id.

The trial commissioner subsequently held an informal hearing on October 17, 2003, at which a clarification of the benefit rate was reportedly issued. He then sent a letter dated November 3, 2003 to the participating attorneys in which he stated, “I confirm in writing what I concluded at the hearing held on October 17, 2003. That is, the Claimant’s workers’ compensation rate for the second injury is the same as his rate for the first injury.” The respondents wrote a letter to the commissioner disagreeing with that decision, and requested a formal hearing to address the claimant’s correct compensation rate. Said hearing was held on April 23, 2004, resulting in the admission of exhibits (i.e., the parties’ previously-filed briefs) and the production of a transcript, and was continued through the closing of the record on August 23, 2004. The trier then issued an order on December 17, 2004, stating that his decision regarding the claimant’s benefit rate was “complete and final upon the issuance of the clarification at the hearing held on October 17, 2003, and subsequently provided to the parties in writing. As no appeal was taken, the decision stands. For the injury occurring March 12, 2001, the claimant shall be paid benefits calculated at the same rate for his prior injury which occurred on September 13, 2000.” The respondents have appealed from that order, which they again contend contravenes the terms of § 31-310(a).

Here on review, the claimant shares the trial commissioner’s position that the respondents’ petition for review should have been filed following the trier’s November 3, 2003 clarification order, instead of the December 17, 2004 decision. Indeed, an issue at the April 23, 2004 formal hearing was whether the earlier clarification constituted a final decision. Considering that this board issued a dismissal of the respondents’ first appeal due in part to the insufficiency of the appellate record, we believe that it would be inconsistent with our dismissal order to now hold that the question of law raised by the respondents was ready for adjudication as of November 3, 2003. No evidentiary record had yet been created. See, e.g., Cutler v. S. Carpenter Construction Co., 4737 CRB-6-03-10 (November 3, 2003); Mace v. Tradesource, Inc., 4664 CRB-6-03-5 (May 14, 2003). Even though the respondents technically could have filed an appeal from the trier’s clarification order as per § 31-301(a), we would still have faced the obstacle of not having a transcript, exhibits, or stipulated facts to review. Instead, the respondents requested a formal hearing. That was a reasonable course of action in light of our prior decision, and we will not penalize them for it after the fact.

The most significant issue at this point, however, is the need for this case to be adjudicated. While this debate remains pending, the claimant is bearing the burden of the resulting delay. As the record before us is sufficient for us to determine the proper method to use in calculating the claimant’s compensation rate based upon a March 12, 2001 date of injury, we shall do so now. The parties have briefed and argued that issue, and the trier’s holding clearly sets forth March 12, 2001 as the operative date of injury.

The case relied upon by the respondents in their letter challenging the trial commissioner’s order and requesting a formal hearing was Prescott v. Community Health Center, Inc., 4426 CRB-8-01-8 (August 23, 2002). In Prescott, the claimant had suffered a non-work-related condition in 1998 that resulted in her limiting herself to part-time work for her employer, for whom she had previously worked full-time. Pursuant to an insurance policy provided by her employer, she was receiving disability benefits from an insurance carrier to make up the difference in pay. The claimant next suffered a compensable back injury on August 20, 1999, which led to a period of total disability. The trier calculated her average weekly wage without considering the money she was receiving from her disability carrier, as those benefits were not the equivalent of wages. In affirming the trier’s decision, this board wrote that “wages” do not include fringe benefits remuneration, in contrast to amounts directly allocable to weeks worked by an employee. “There has been no finding made that the claimant’s disability insurance payments were in that sense correlated with the number of hours she had worked.” Id.

There are differences between the instant case and Prescott. The claimant’s workers’ compensation benefits for temporary partial disability were paid in lieu of wages, and were correlated to the claimant’s weekly earning capacity. Also, the initial cause of disability in Prescott was not a compensable injury, and its effects were not the liability of the claimant’s employer. In the case at bar, the claimant’s initial injury was compensable, and resulted in his being limited to light duty employment.

Similarly, there are appreciable differences between this case and Trankovich, supra. Section 31-310 provides concurrent employment benefits to qualifying claimants based on income earned at other jobs held as of the date of injury. The claimant in Trankovich did not have a second job on her date of injury, though she had been working two jobs until she switched from part-time to full-time employment at the respondent ambulance company several months prior to her injury date. In order to avoid what it deemed to be an inequitable result based solely on the claimant’s wages earned from the ambulance company during the 52 weeks prior to her injury, this board had ruled that the claimant’s benefit rate should not include her weeks of part-time employment with the ambulance company, as that had the effect of lowering her compensation rate insofar as it ignored the income she had been drawing from a second job during that span of time. The Appellate Court reversed this board’s decision, stating that “when statutory language is clear and unambiguous we must presume that [the legislature] meant what it said.” Because § 31-310 contains no exceptions for situations involving discontinued concurrent employment, the law required that it be applied as written.

Here, there is no issue of previous involvement by a concurrent employer, as there was in Trankovich. The initial change in the claimant’s circumstances that led to a reduction in the number of hours worked was due to a compensable injury for which the respondent employer was liable. The claimant’s return to light duty employment was a consequence of that injury, as was his receipt of temporary partial disability benefits to supplement his income. From an equitable perspective, these circumstances again seem to create a viable argument that the claimant should be compensated for more than just his light duty wages, and the trial commissioner held accordingly.

Nevertheless, the factual distinctions among this case, Trankovich and Prescott cannot overcome the fact that the language of § 31-310 prescribes only one method for calculating a claimant’s compensation rate. The issue is ultimately similar: does this Commission have the authority to modify the formula in § 31-310 when it seems inadequate to address a particular set of circumstances? In light of our Appellate Court’s holding in Trankovich, supra, this board is compelled to answer that question in the negative. We are compelled to read the statute according to its plain language, and apply the formula as written. We have no discretion to take into account temporary partial disability benefits when calculating a claimant’s compensation rate, nor can we revert to the compensation rate for a prior date of injury.

In doing so, we acknowledge that the result of this decision is counterproductive to the purpose of workers’ compensation, which is to encourage the employee to return to work as soon as possible following a compensable injury. By reapplying the average weekly wage calculation in § 31-310 to the claimant’s light duty wages, while omitting the portion of his wages that had already been replaced by workers’ compensation benefits, we treat the original injury as if it did not happen, and disregard its effects on the claimant. Financially, he is now being penalized for having returned to work.

With respect to recurrences and relapses, § 31-307b attempts to prevent such a result by applying the original compensation rate if it would be greater than the rate based on the weekly wages at the time of the recurrence. The claimant has not demonstrated a relapse here. Instead, we have a new injury. There is no statute similar to § 31-307b that applies to this situation. As a result, the claimant will be left partially uncompensated for his original compensable injury by virtue of the intervening compensable injury. The Workers’ Compensation Act does not give us the authority to do otherwise, despite the apparent inequity of the situation.

The trial commissioner’s decision is accordingly reversed.

Commissioners Stephen B. Delaney and Michelle D. Truglia concur.

Workers’ Compensation Commission

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