CASE NO. 200 CRD-3-83 201 CRD-3-83Workers’ Compensation Commission
MARCH 2, 1987
Claimant was represented by L. Morris Glucksman, Esq.
Respondents were represented by Richard T. Stabnick, Esq.
This matter was decided on briefs without oral argument.
This Petition for Review from the January 26, 1983 Finding and Award of the Commissioner at Large acting for the Third District was considered November 30, 1984 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Edward F. Bradley and Gerald Kolinsky.
FINDING AND AWARD
1-4. Paragraphs 1 through 4 of the trial Commissioner’s Finding and Award are made paragraphs 1 through 4 of this Division’s Finding and Award.
5. September 28 had been a scheduled twelve hour work day for this employee.
6. The employee’s full wages for that day therefore included a renumeration for eight hours at regular pay and four hours at time and a half.
WHEREFORE IT IS ORDERED, ADJUDGED AND AWARDED that the Respondent Employer pay employee full wages for September as here found.
OPINION
JOHN ARCUDI, Chairman.
At issue here is the application of 31-295(b), C.G.S. “(b) The injured employee shall be entitled to full wages for the entire day of the injury and said day shall not be counted as a day of incapacity.” Kreidler and Birdsell were both injured September 28, 1982 before the end of their respective working day. Kreidler had been scheduled to work four overtime hours that day. He therefore came in to start work four hours before his starting time. Birdsell as scheduled by his superiors reported to work two hours early and was to work two hours beyond his normal shift.
Both parties referred to the Collective Bargaining Agreement in the proceedings before the trial Commissioner. That Agreement provided for the payment of time and one half for overtime beyond eight hours. They both agreed that claimants should be paid a full day’s pay even though injured before the end of the day. Claimants argued the full day included the scheduled overtime pay. Respondents contended the full day’s wages only meant renumeration for a normal eight hour shift.
The “full wages” provision of Sec. 31-295(b) dates back at least sixty years to Sec. 8 of the 1917 statute. Then the 1938 U.S. Fair Labor Standards Act providing for overtime pay after eight hours for employees in industries affecting commerce had not yet been enacted. Nor had a state minimum wage law for workers in intrastate industries yet been passed. As a matter of fact the U.S. Supreme Court had declared unconstitutional only twelve years before a New York law attempting to make ten hours the normal working day, Lochner v. New York, 198 U.S. 45 (1905). Therefore we can take it as true beyond a shadow of a doubt that “full wages for the entire day of the injury” did not mean wages for an eight hour day. In fact as late as 1920 American employees in some industries were striking for a 60 hour week. For them the entire day could have been twelve hours.
The employees and the employer here had agreed and had so scheduled it that a full day on September 28, 1982 was to be twelve hours and the last four hours were to be paid at time and a half. That may have been in the contract but it also was a matter of now universally recognized federal and state law outside the contract. It was therefore wrong for the trial Commissioner to accept the employer’s contention that since he had no plenary judicial power to interpret the contract he had no jurisdiction to entertain the claimant’s argument that full wages included the overtime four hours and the time and one half pay. There was no need for the Commissioner to apply the contract. All he had to do was the agreement that the parties had made before the work day in question that September 28 was to be a twelve hour day and the wage and hour law which prescribes that overtime hours are to be renumerated at time and one half.
The decision of the Commissioner is reversed and the matter is remanded for further proceedings in accordance with this opinion.
Commissioners Edward F. Bradley and Gerald Kolinsky concur.