CASE NO. 1220 CRD-2-91-4Workers’ Compensation Commission
JANUARY 7, 1993
The claimant was represented by Ronald Cordilico, Esq.
The respondents were represented by Richard L. Aiken, Jr., Esq., Pomeranz, Drayton and Stanbick.
This Petition for Review from the April 5, 1991 Finding and Award of the Commissioner for the Second District was heard March 27, 1992 before a Compensation Review Board panel consisting of the then Commission Chairman, John Arcudi and Commissioners Michael S. Sherman and A. Thomas White, Jr.
FINDING AND AWARD
Paragraphs I 1-9 and II 1 of the trial commissioner’s Finding and Award are made a part of this opinion as follows:
I. The parties agree and stipulate to the following:
1. The claimant, Lance Arnold, a teacher in the Tolland Public School System suffered an on the job injury to his left index finger on April 12, 1988.
2. The compensability for said injury has been accepted by the employer.
3. Mr. Arnold’s salary for school year 1987-88 was $36,580.32.
4. The 1987-88 school year was from September 2, 1987 to June 20, 1988.
5. Payment of all salaries to teachers employed by the Town of Tolland was paid pursuant to Contract Article 39 reflected on Page 14 of the agreement between the Tolland Board of Education and the Tolland Education Association for the period July 1, 1987 through July 30, 1989 (Exhibit 1).
6. Teachers have one of two options for receiving their salary.
22 Equal payments from the first Friday after return to work to the last day of school
1) 21 of which are equal to 1/26 of a teacher’s annual salary which is paid from the first Friday after return from work to the payday prior to the last day of school
2) the 22nd of which is equal to 5 of the 21 equal payments and which is paid on the last day of school
7. A dispute has arisen over the method of computing the average weekly wage at the time of Mr. Arnold’s injury.
8. It is the respondents’ position that Mr. Arnold’s average weekly wage shall be ascertained by dividing the total wages received by Mr. Arnold from the Town of Tolland during the 26 calendar weeks immediately preceding that during which he was injured, by the number of calendar weeks during which, or any portion of which, he was actually employed by the Town of Tolland. (Connecticut General Statute Section 31-310).
9. The claimant chose to have his salary paid according to OPTION B, therefore, the claimant’s position is that his annual salary must be divided by forty-two (42), the number of weeks from September 2, 1987 to June 20, 1988 to take into account the last payment which must be prorated over the time the claimant earned the salary.
1. The essence of the issue is whether or not the claimant’s average weekly wage should be determined by the equitable apportionment of his annual salary (had he chosen option A) or by the actual monies received for the twenty-six weeks which precedes the date of injury.
Paragraph II 2 is deleted and the following substituted in its place:
2. It is found Sec. 31-310 C.G.S. mandates the average weekly wage to be the total wages received by the injured worker during the twenty-six (26) calendar-weeks immediately preceding the injury divided by the number of calendar weeks during which or any portion of which such worker was actually employed.
WHEREFORE IT IS ADJUDGED, DECREED, ORDERED AND AWARDED THAT:
1. Respondents pay to claimant compensation at the rate of 66 2/3’s percent of his average weekly earnings for the 26 weeks which preceded the date of the injury with said average weekly wage being calculated in accordance with Sec. 31-310
2. Claimant’s claim for an increase in his average weekly wage to include the balloon payment which he received at the end of the school year is hereby DENIED.
JOHN ARCUDI, COMMISSIONER.
This appeal arises from a claimed error in the computation of claimant’s compensation rate. Claimant, a Tolland teacher, sustained a compensable left index finger injury April 12, 1988. His annual salary for the 1987-88 school year was $36,580.32. The school year ran from September 2, 1987 to June 20, 1988.
Tolland teachers then had the option of having their annual salary paid in twenty-two (22) equal biweekly payments between September and the end of June, Option A. In the alternative they could choose to receive during the same September to June period twenty-one (21) biweekly payments equal to one twenty-sixth (1/26th) of the annual salary and a final biweekly balloon payment equal to five twenty sixths (5/26ths) of the annual salary payable on the last payday of the school year, Option B. The claimant elected to have his annual salary paid in accordance with Option B.
As the weekly compensation rate under secs. 31-307 and 31-308
is based on an employee’s average weekly wage, the dispute between the parties centers on the determination of that average wage. Sec. 31-310 C.G.S. is the statute which sets out the method by which the claimant’s average weekly wage is to be computed. It provides that a claimant’s “average weekly wage shall be ascertained by dividing the total wages received by the injured worker from the employer in whose service he is injured during the twenty-six calendar weeks immediately preceding that during which he was injured . . .” Here the commissioner concluded, as claimant had chosen salary Option B, his average weekly wage should be the total annual salary divided by forty-two weeks, i.e. the salary divided by the number of weeks over which he received it. We disagree.
This same issue was considered in Sweeney v. Waterbury, 1225 CRD-5-91-5 (decided January 7, 1993). Other cases involving the determination of weekly of weekly compensation rates for municipal teachers are Boulay v. Waterbury, 9 Conn. Workers’ Comp. Rev. Op. 111, 4941 CRD-5-89-11 (1991) aff’d 27 Conn. App. 483 (1992) cert. denied 223 Conn. 905 (1992), and Glowa v. Waterbury, 9 Conn. Workers’ Comp. Rev. Op. 114, 948 CRD-5-89-11 (1991). Sweeney pointed out that it may seem logical, when employees are paid on an annual salary basis, in determining the average weekly wage to divide the total annual remuneration by the number of weeks in the year over which it is received. However, that is not what the statute prescribes. Sec. 31-310 states without ambiguity that the average weekly wage equals total wages earned in the twenty-six weeks prior to the injury divided by the number of calendar weeks worked in that period.
Fiore v. Office Furniture Depot, 10 Conn. Workers’ Comp. Rev. Op. 15, 1093 CRD-5-90-8 (1991) and Ericson v. Perreault Spring and Equipment Company, 9 Conn. Workers’ Comp. Rev. Op. 171, 1008 CRD-5-90-4 (1991) do not require a different result. In Fiore the wages paid to claimant did not reflect the rate of remuneration previously agreed upon and seemed not to satisfy the wage and hour labor laws. Also, the Voluntary Agreement itself included computations predicated on inconsistent or mistaken facts.
In Ericson, we upheld the trial commissioner’s opening of a Voluntary Agreement under Sec. 31-315 to permit claimant an opportunity to present evidence of a changed condition of fact which necessitated a change in the Voluntary Agreement “in order to properly carry out the spirit of this chapter.” Claimant wanted an opportunity to have certain profit sharing sums included in his compensation rate calculation. Respondents argued that under. Sec. 31-310 amounts paid at year’s end could not be included in the computation of claimant’s wages during the twenty-six weeks prior to claimant’s September 28, 1988 injury. We permitted reopening for the consideration of such evidence and said, “However, if the evidence shows that the year end payment was understood by the parties to be allocable to all the weeks worked in the preceding year, then those amounts may very well be included in the Sec. 31-310 calculation of average weekly wage.” Id. at 172.
Here, the method of payment was an option selected by the claimant. In Ericson, there was no evidence that claimant had any choice or control over the time of receipt of profit sharing sums.
We therefore sustain the appeal, reverse the Second District and order that the claimant’s average weekly wage be computed on the basis of “dividing total wages received by the . . . [claimant] during the twenty-six calendar weeks preceding that during which he was injured.”
Commissioners Michael S. Sherman and A. Thomas White, Jr., concur.
For the purposes of this chapter, the average weekly wage shall be ascertained by dividing the total wages received by the injured worker 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, or any portion of which, such worker was actually employed by such employer, but in making such computation, absence for seven consecutive calendar days, although not in the same calendar week, shall be considered as absence for a calendar week. When the employment commenced otherwise than at the beginning of a calendar week, such calendar week and wages earned during such week shall be excluded in making the above computation. When the employment previous to injury as provided above is computed to be less than a net period of two calendar weeks, his weekly wage shall be considered to be equivalent to the average weekly wage prevailing in the same or similar employment in the same locality at the time of injury except that, when an employer has agreed to pay a certain hourly wage to such worker, then the hourly wage so agreed upon shall be the hourly wage for such injured worker and his average weekly shall be computed by multiplying such hourly wage by the regular number of hours that is permitted each week in accordance with such agreement . . .