WANNAGOT v. CITY OF SHELTON, 1512 CRB-4-92-9 (6-2-94)

CASE NO. 1512 CRB-4-92-9Workers’ Compensation Commission
JUNE 2, 1994

The claimant was represented by William J. Curran, Esq.

The respondent was represented by Michael L. Tierney, Esq., formerly of Cotter, Cotter Sohon, P.C.

This Petition for Review from the September 15, 1992 Finding and Award of the Commissioner for the Fourth District was heard September 10, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN.

This appeal concerns the proper calculation of compensation benefits pursuant to General Statutes Sec. 7-314a. The claimant widow contends that she is entitled to the maximum benefit rate in effect on the date of injury. The trial commissioner determined that the claimant was entitled to sixty-six and two-thirds per cent of the average production wage in effect on the date of injury. We affirm the trial commissioner.

This matter was submitted to the commissioner on the following stipulation of facts. On March 15, 1991, Daniel Wannagot was acting as a volunteer fireman for the respondent. There was no employer-employee relationship between Wannagot and the respondent as set forth in Sec. 7-314a.[1] While at the scene of a fire, Wannagot suffered a heart attack which caused his death on that date. A claim was made and accepted pursuant to General Statutes Sec. 7-314a.

Benefits were initially paid to claimant Nancy Wannagot, dependent widow of Daniel Wannagot, by the respondents at the maximum weekly compensation rate of $719.00. The trial commissioner, however, determined that the claimant’s proper weekly compensation benefits are $319.33 and that she had received an overpayment which the respondent was entitled to recover. This appeal followed.

General Statutes Sec. 7-314a(a) provides, in pertinent part, that “active members of volunteer fire departments shall be construed to be employees of the municipality for the benefit of which volunteer fire services are rendered while in training or engaged in volunteer fire duty and shall be subject to the jurisdiction of the workers’ compensation commission and shall be compensated in accordance with the provisions of chapter 568 for death, disability or injury incurred while in training for or engaged in volunteer fire duties.” General Statutes Sec. 7-314a(b) provides that for purposes of Sec. 7-314a, “the average weekly wage of a volunteer fireman shall be construed to be the average production wage in the state as determined by the labor commissioner under the provisions of section 31-309.” General Statutes (Rev. to 1991) Sec. 31-309 provides for a maximum weekly compensation benefit of not more than 150% of the average weekly earnings of production and related workers in manufacturing in the state for the year in which the injury occurred. Section 31-309
also provides that “[t]he average weekly earnings of production and related workers in manufacturing in the state . . . to be effective [on] October first . . . shall be the average of the manufacturing production and related workers’ weekly earnings for the year ending the previous June thirtieth . . . .”[2]

The claimant widow’s Sec. 7-314a benefits are based on compensation provided by General Statutes Sec. 31-306. Under Sec. 31-306(b)(2), death benefits are “equal to sixty-six and two-thirds per cent of the average weekly earnings of the deceased at the time of injury but in no case more than the maximum weekly benefits rate set forth in section 31-309 for the year in which the injury occurred . . . .” Since Sec. 7-314a(b) establishes the decedent’s average weekly earnings at the average production wage under Sec. 31-309, and since the average production wage under Sec. 31-309 at the time of his death was $479; see footnote 2, supra; the trial commissioner properly determined that the claimant’s benefits are 66 2/3 per cent of $479, or $319.33 per week.

The maximum compensation rate set forth in Sec. 31-309 is intended to be a “cap” on benefits, the calculation of which pursuant to other provisions would otherwise exceed that maximum rate. A claimant is not entitled to that rate unless the rate determined by other benefit provisions alone (i.e., total incapacity under Sec. 31-307 or death benefits under Sec. 31-306) results in compensation which would exceed the maximum established by Sec. 31-309. The claimant’s reliance on Going v.Cromwell Fire District, 159 Conn. 53 (1970), is misplaced. InGoing, the Sec. 7-314a claimant was entitled to the maximum rate because the maximum rate in effect at the time of the injury was 60% of the average production wage while his total incapacity benefits under Sec. 31-307 otherwise would have been 66 2/3% of that same figure.[3] Thus, the Going claimant’s entitlement, like the claimant’s entitlement here, was not to the maximum benefit rate without regard to benefit calculations under other provisions; rather, a Sec. 7-314a claimant is entitled to the rate attributable to the benefits received (i.e., total incapacity, death benefits, etc.) or the maximum rate, whicheveris less. At the time of the injury in Going, the maximum rate provided the lower compensation rate, while the opposite is true with respect to the injury in this case.

Accordingly, the trial commissioner properly determined that the claimant widow had been overpaid benefits since her weekly benefit should be $319.33. We, therefore, affirm the trial commissioner and deny the appeal.

Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.