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Partlow v. Petroleum Heat & Power Company, Inc.

CASE NO. 5432 CRB-7-09-2



FEBRUARY 9, 2010











The claimant was represented by Jessica L. Braus, Esq., Glass & Braus, 2452 Black Rock Turnpike, Suite 7, Fairfield, CT 06825-2407.

The respondents were represented by Karen Acquarulo, Esq., and Dominick C. Statile, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the February 17, 2009 Finding of the Commissioner acting for the Seventh District was heard August 28, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.


JOHN A. MASTROPIETRO, CHAIRMAN. This appeal is based specifically on the legal interpretation of when the claimant’s average weekly wage should be calculated under Chapter 568. The claimant in this case was injured many years prior to seeking benefits for temporary total disability. The trial commissioner determined that the “date of injury” is the appropriate date to calculate a wage rate, which is consistent with the plain language of § 31-310(a) C.G.S. and § 31-307 C.G.S. The claimant has appealed this decision, and argues that precedent such as Mulligan v. F.S. Electric, 231 Conn. 529 (1994) and Moxon v. Board of Trustees of Regional Community Colleges, 37 Conn. App. 648 (1995) establish a “date of incapacity” standard for the determination of a wage rate when there is a gap between date of injury and date of incapacity. Upon review of the law, we believe appellate precedent is controlling over the circumstances herein. We accept the claimant’s interpretation of law and sustain his appeal.

The following facts were stipulated to by the parties and are pertinent to our consideration of this appeal. The claimant suffered an injury to his right master shoulder on November 8, 2000; he did not miss any time from work due to this injury until he underwent shoulder surgery on March 7, 2008. Following that surgery he returned to work May 5, 2008. The claimant missed eight weeks of work as a result of the surgery and was previously paid $3,500 by the respondent; which amounts to seven weeks of benefits at an estimated compensation rate of $500/week. The claimant maintained that his wages as of his date of disability should be used to calculate an average weekly wage and a base compensation rate. The respondents maintain that these rates must be calculated as of the date of injury.

Based on these stipulated facts, the trial commissioner decided in her February 17, 2009 Finding, that no voluntary agreement had been issued establishing the claimant’s average weekly wage or base compensation rate. She determined the claimant was entitled to eight weeks of benefits. In reliance on the terms of § 31-310 C.G.S., the commissioner concluded “[t]he claimant’s base compensation rate should be calculated based upon the wages that he earned for the fifty-two calendar weeks immediately preceding the week during which the employee was injured, regardless of when he first became incapacitated as a result of his injury.” Finding, ¶ E. The claimant has taken an appeal from this decision.

As we noted at the outset, this is a case which is based on statutory interpretation. The “plain language” of the relevant statutes supports the decision of the trial commissioner in this matter. For example, § 31-307(a) C.G.S. states that an injured worker “. . . shall be paid a weekly compensation equal to seventy-five per cent of the injured employee’s average weekly earnings as of the date of the injury, calculated pursuant to section 31-310. . . .” (Emphasis added). Section 31-310(a) C.G.S. states “[f]or the purposes of this chapter, the average weekly wage shall be ascertained by dividing the total wages received by the injured employee from the employer in whose service the employee is injured during the fifty-two calendar weeks immediately preceding the week during which the employee was injured,. . . .” (Emphasis added). There is no dispute the claimant’s injury occurred in 2000. Ordinarily, this Commission is bound by § 1-2z C.G.S. to apply statutes using the “plain meaning” of what the statutes says. Verrinder v. Matthew’s Tru Colors Painting & Restoration, 4936 CRB-4-05-4 (December 6, 2006), appeal dismissed, A.C. 28367 (2007). The trial commissioner followed that standard herein.

Subsequent to the enactment of §1-2z C.G.S., the Supreme Court, in a case which turned on the interpretation of Chapter 568, made clear that the “plain meaning” statute was not intended to undo prior judicial interpretation of statutes. In Hummel v. Marten Transport, LTD, 282 Conn. 477 (2007) the parties challenged the validity of the “final judgment” rule; arguing that the precedent behind this rule was inconsistent with the “plain meaning” of the Workers’ Compensation Act. The Supreme Court rebuffed this effort for the following reasons.

We acknowledge that, if we were writing on a clean slate, § 1-2z might foreclose us from reading a final judgment requirement into § 31-301b because the text of § 31-301b contains no such requirement. For the reasons that follow, however, we conclude that § 1-2z does not dictate the result that the parties urge …. It is evident from that history that the legislature, by virtue of its enactment of § 1-2z, did not intend to overrule our prior interpretation of any other statutory provision, including § 31-301b.

Id., at 496, 498-499.1

Counsel for the claimant argues that the judicial interpretation of the relevant statutes have established that a “date of incapacity” standard should be used in calculating an average weekly wage and a base compensation rate for § 31-307 C.G.S. benefits. After reviewing the precedent in Mulligan and Moxon we are persuaded the claimant’s position in this case is consistent with long standing appellate precedent, and therefore, must be applied in this case.

In Mulligan, supra, the claimant suffered an accidental injury but did not miss any work or claim any benefits until two years later. The respondents persuaded the trial commissioner that the claimant’s compensation rate should be based on the period prior to his accident, not the period prior to his incapacity. The claimant appealed this ruling to our board, asserting the precedent in Rousu v. Collins Co., 114 Conn. 24 (1931) and subsequent cases established that compensation rates were set as of the date of first incapacity. We declined to follow these cases, limiting their applicability to when an incapacity occurs due to occupational disease or repetitive trauma. Mulligan v. F.S. Electric, 12 Conn. Workers’ Comp. Rev. Op. 91,1 1424 CRB-4-92-5 (February 15, 1994). The Supreme Court reversed this board on that issue.

The Court did an extensive review of the legal theories and precedent governing the payment of temporary total disability benefits and determined “[w]e agree with the claimant that the calculation should have been based on his earnings preceding his incapacity.” Mulligan, supra at 540. The Court in Mulligan restated the holding reached in Rousu, supra, that “. . . The just measure of the value of the earning power of an employee and the correlative loss incurred by him would seem to relate to his earnings at the time the loss occurs through incapacity to work, rather than his earnings at an earlier time . . . .” Mulligan, supra at 541 (Emphasis in original). The court in Mulligan rejected the respondent’s argument that Rousu should be limited to occupational disease cases, and made clear the “date of incapacity” standard applied to traumatic injuries. Id., at 542-545.2

In Moxon, supra, the Appellate Court followed this principle and stated “[t]he relevant date for determining compensation to an injured worker is the date of that worker’s incapacity to work, which might not necessarily be the date of injury.” Id., at 651. In Moxon, the trial commissioner found that the claimant had actually been disabled at various times between the date of injury and when she asserted disability, id., 652, and the commissioner reached findings there was no discrepancy in that case between the date of injury and the date of incapacity. Id., at 651. The Appellate Court upheld the result in that case while restating the more expansive legal standard. Id., at 653.3

The respondents finally argue that our precedent in Ciocci v. Morrison Knudsen Co., Inc., 4244 CRB-1-00-5 (June 1, 2001) stands for the proposition that the “date of incapacity” rule does not apply under the present circumstances. We disagree for two reasons. First, the opinion itself makes clear that our panel distinguished the facts in that case from the rule in Mulligan, supra, which we restated was the applicable law governing traumatic injuries. In addition, the opinion in Ciocci turned on whether a previously approved voluntary agreement should be reopened. In the present case, there is no voluntary agreement. As a result, the cases are factually distinguishable. As we held in Ciocci, supra.4

Moreover, we note that the claimant’s action to reopen the voluntary agreement was filed in 1999, many years after said agreement had been approved by this Commission. . . . Instead, it appears that if there was a mistake, it was a retrospective mistake in the way the law was applied in 1990, prior to our Supreme Court’s 1994 decision in Mulligan, supra, which extended the applicability of the “date of incapacity” wage calculation rule to traumatic injury cases. A commissioner may not reopen an award or agreement on the basis of a prior mistake of law. . . . For these reasons, we find no error in the trier’s failure to reopen the voluntary agreement so that the claimant’s post-injury wages as reflected in Exhibit B could be factored into his compensation rate.

We have not been presented with any persuasive legislative or appellate precedent that in our opinion, serves to diminish the binding effect of the precedent in the Mulligan and Moxon cases.5 These cases clearly establish that for traumatic injuries, the “date of incapacity” should be the applicable date for calculation of a wage rate and compensation rates, not the “date of injury.” As a result, the precedent in Hummel, supra, clearly states we must continue to apply these precedents notwithstanding any conflicting statutory language. We find that these cases govern the facts in this case, and therefore, should be applied herein.

As a result, we sustain the claimant’s appeal and vacate Finding, ¶ E of the February 17, 2009 Finding. The claimant’s wage rate and compensation rate must be established as of the date of his incapacity. This matter is remanded to the trial commissioner for further proceedings in accord with this opinion.

Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.

1 Public Act 03-154, which adopted the plain meaning rule, was enacted in 2003. The relevant appellate precedents in this matter predate this law, and pursuant to the holding in Hummel v. Transport, LTD, 282 Conn. 477 (2007), were not overruled legislatively. BACK TO TEXT

2 Counsel for the respondents argued before this panel that Mulligan v. F.S. Electric, 231 Conn. 529 (1994) should be limited to the facts, as the case involved a “relapse” from a prior injury. We cannot find support for this interpretation from the tenor of the decision itself, which clearly establishes a broad standard rather than a case specific finding. We also note that in Mulligan the relapse statute was addressed in Section I of the opinion, at 535-539; wherein the claimant’s cross-appeal on the issue herein was addressed in Section II at 539-545. We are also not persuaded the various technical changes to § 31-307 C.G.S. enacted pursuant to Public Act 91-32 had any impact on the legal precedent enunciated in Mulligan. BACK TO TEXT

3 Counsel for the respondents argued before the panel that Moxon v. Board of Trustees of Regional Community Colleges, 37 Conn. App. 648 (1995) was an occupational disease case and should be limited only to similar fact circumstances. We can find no limitation from the text of the opinion that the legal principles outlined by the Appellate Court were limited solely to occupational disease cases. Unlike Moxon, the parties have stipulated the claimant was not incapacitated until years after the initial injury. BACK TO TEXT

4 We also note that in Ciocci v. Morrison Knudsen Co., Inc., 4244 CRB-1-00-5 (June 1, 2001) there were various deficiencies that precluded appellate relief. “However, the trial commissioner made no finding regarding a date of incapacity, and the claimant did not request that one be made via Motion to Correct. Without such a subordinate factual finding, it would be virtually impossible for this board to find legal error in the way § 31-310 has been applied.” Id. In the present case the date of injury and date of incapacity have been stipulated to by the parties. BACK TO TEXT

5 The doctrine of legislative acquiescence, as stated in Hanson v. Transportation General, Inc., 245 Conn. 613 (1998), weighs against the respondents’ position. Had the Supreme Court acted contrary to legislative intent in Mulligan, supra, the General Assembly has had 16 years to rectify the issue as to when to calculate a compensation rate for traumatic injuries, and has chosen not to address this issue. See also Hummel, supra. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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