BOULAY v. CITY OF WATERBURY, 941 CRD-5-89-11 (4-8-91)


CATHERINE BOULAY, CLAIMANT-APPELLANT v. CITY OF WATERBURY, EMPLOYER, RESPONDENT-APPELLEE

CASE NO. 941 CRD-5-89-11Workers’ Compensation Commission
APRIL 8, 1991

The claimant was represented by Ronald Cordilico, Esq.

The respondent was represented at the trial level by Louise A. Brown, Esq. Corporation Counsel and on appeal by Thomas H. Cotter, Esq., Cotter, Cotter
Sohon, P.C.

This Petition for Review from the October 25, 1989 Finding and Dismissal of the Commissioner for the Fifth District was heard October 26, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller James Metro.

FINDING AND AWARD

1. The Fifth District Commissioner, Darius J. Spain, held a hearing in the above matter, and the parties submitted a Stipulation of Facts and briefs in June, 1988.

2. A Voluntary Agreement between the parties approved by the District April 14, 1987 recognized that claimant had suffered a compensable back injury September 10, 1986.

3. That Voluntary Agreement showed that claimant had earned $15,900.00 in the twenty-six weeks preceding her injury thus establishing an average weekly wage of $611.53 entitling her to the then maximum compensation rate of $397.00 per weeks. Under Sec. 31-307a, her rate effective October 1, 1986 became $408.00 and $429.00 effective October 1, 1987.

4. There was no evidence offered or any fact stipulated concerning any earnings claimant may have had from other employment during July and August, 1986.

5. Claimant was a school teacher employed as such by the respondent-City of Waterbury since 1963.

6. Under state law, Title 10 of the Statutes, and pursuant to a contract negotiated with the city by time Waterbury Teachers’ Association, the terms of claimant’s employment were contained in a contract renewed annually between herself and the city.

7. Those contracts entitled claimant to an annual salary for her services, but the teacher could elect to receive the total annual salary in the ten months she actually worked at the profession, i.e. September though June.

8. Claimant did so elect, and before the September, 1986 injury she had received her previously earned annual salary in the months from September, 1985 until June, 1986.

9. Those same contracts provided that if a teacher suffered an injury arising out of and in the course of employment, she would receive her full pay during the period of disability.

10. Claimant was disabled during the period September, 1986 to September, 1988.

11. Pursuant to the contracts, she had received her full annual salary for the school years 1986-1987 and 1987-1988 by the end of June, 1988.

12. Between September, 1986 and June 30, 1988, claimant each year received twenty-two equal bi-weekly payments, the total of the twenty-two equaling her full annual salary.

13. She seeks total disability benefits under the Workers’ Compensation Act for her weeks of disability in July and August of 1988.

14. The compensation rate due claimant during weeks of disability between October 1, 1987 and October 1, 1988 was $429.00, i.e. her rate at time of injury, $397.00 plus cost of living increments on October 1, 1986 and October 1, 1987.

15. Similarly, claimant’s compensation rate during the month of September, 1987 was $408.00.

16. Therefore, total disability benefits during the four weeks of September, 1987 totaled $1632.00, and total disability benefits for the forty-eight weeks from October 1, 1987 to September 1, 1988 were $20,592.00, making a total for that year of $22,224.00.

17. According to the Voluntary Agreement her annual salary previous to the date of injury was $31,800.00.

18. The record does not show whether there were any annual increments above her 1985-1986 salary paid to claimant in the 1986-1987 and 1987-1988 school years.

19. Neither does the record show whether there were any federal income tax withholdings from the full salary sums paid claimant during those two years of disability.

20. Claimant is entitled to have received $22,224.00 for the disability period from September 1, 1987 to September 1, 1988.

21. If the full salary payments made by the city from September 1, 1987 to July 1, 1988 equal $22,224.00, then claimant is not entitled to further payments during July and August, 1988.

22. If the city’s payments do not equal that amount, then claimant is entitled to the difference between $22,224.00 and what was actually paid her.

IT IS ADJUDGED AND AWARDED THAT BENEFITS BE PAID IN ACCORDANCE WITH THE FACTS ABOVE FOUND.

OPINION

JOHN ARCUDI, CHAIRMAN.

Claimant, a city of Waterbury school teacher sustained a compensable back injury September 10, 1986 at the beginning of the 1986-1987 school year. That injury disabled her from September 10, 1986 to September 1, 1988. Her claim that she was entitled to disability payments for the weeks of disability occurring in July and August, 1988 was denied by the Fifth District Commissioner, and she has appealed.

In Waterbury during the periods applicable to this claim there prevailed a payment method for teachers salaries which gave the individual teacher the option to be paid his or her full annual salary during the ten school months, September through June, rather than over the entire twelve months of the calendar year. This claimant had been a Waterbury teacher since 1963, and she had selected that payment option. Before her injury, she received no payments during the months of July and August.

At the time of injury her average weekly wage had been $611.53. The Voluntary Agreement of the parties approved by the Fifth District April 14, 1987 states that she earned $15,900.00 in the twenty-six weeks preceding the September, 1986 injury. Neither the Voluntary Agreement nor the parties’ Stipulation of Facts reveals (1) whether the $15,900.00 constituted the payments actually received in the twenty-six weeks immediately preceding the injury, (2) whether that sum was actually half her annual salary or whether in fact the sum was both. In any case, the Voluntary Agreement established that claimant was entitled to the maximum weekly compensation rate then prevailing, $397.00.

As a result of her back injury claimant remained totally disabled for two years until September 1, 1988. She was therefore entitled to Sec. 31-307 total disability benefits. Because of the cost of living adjustments provided if, Sec. 31-307a, claimant’s weekly compensation rate effective October 1, 1986 became $408.00, and $429.00 effective October 1, 1987.

Under the contract between the city and the Waterbury Teachers’ Association and also under the individual contract renewable each year between the city and this teacher, the city was obligated to pay the full salary to a teacher during the periods of disability suffered as a result of an injury arising out of and in the course of employment. Therefore, the claimant received her full annual salary during each year of her disability. The full annual salary for the 1987-1988 year was paid her during the ten school months from September, 1987 to June 30, 1988.

As we found in our Finding and Award, the record does not reveal whether her 1987-1988 full salary received included any annual increments beyond the salary received before the September, 1986 injury. Nor is it discernible from the record whether there were federal income tax withholdings deducted from the salary received.

However, for the four weeks of September, 1987, claimant was entitled to Sec. 31-307 total disability benefits at her compensation rate, i.e. $408.00 or $1,632.00. For the forty-eight weeks from October 1, 1987 to September 1, 1988, she was entitled to $20,592.00. This makes a total due for the twelve calendar months from September, 1987 to August, 1988 of $22,224.00.

If, as the Voluntary Agreement indicates, claimants’ annual salary at time of injury was $31,800 without any annual increments which may have been payable for the 1986-1987 school year, then payment of the full annual salary in those twenty-two bi-weekly payments between September 1, 1987 and June 30, 1988 would have satisfied the employer’s obligation to pay $22,224.00 in workers’ compensation benefits. Even if federal income tax withholdings had been deducted from her salary, it is unlikely that the net sums paid claimant amounted to less than $22,224.00. If in fact, claimant received $22,224.00 or more from September, 1987 through June, 1988, we would affirm the Fifth District dismissal of her claim for further payments of benefits during July and August, 1988.

But if the sums received did not total $22,224.00, she is entitled to the difference between payments received and that sum.

The matter is remanded to the Fifth District for the limited purpose of ascertaining the total actually paid claimant during the 1987-1988 school year and for further ruling, if necessary, in accordance with this opinion.

Commissioner Robin Waller and James Metro concur.