WILCOX v. BOROUGH OF NAUGATUCK, 812 CRD-5-89-1 (2-1-90)


THOMAS WILCOX, CLAIMANT-APPELLEE vs. BOROUGH OF NAUGATUCK, EMPLOYER and SECOND INJURY AND COMPENSATION ASSURANCE FUND, RESPONDENTS-APPELLANTS

CASE NO. 812 CRD-5-89-1Workers’ Compensation Commission
FEBRUARY 1, 1990

The claimant was represented by Edward Dodd, Esq.

The respondents were represented by Michael J. Belzer, Esq., Assistant Attorney General.

This Petition for Review from the January 10, 1989 Finding and Award of the Commissioner At Large Acting For the Fifth was decided without oral argument by a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Andrew P. Denuzze.

OPINION

JOHN ARCUDI, CHAIRMAN.

While in the employ of the Borough of Naugatuck claimant suffered a compensable injury April 24, 1986. See Wilcox v. Borough of Naugatuck, 16 Conn. App. 676
(1988) aff’g 518 CRD-5-86, 5 Conn. Workers’ Comp. Rev. Op. 54
(1988). This appeal concerns claimed concurrent employment earnings pursuant to Sec. 31-310, C.G.S.[1]
addition to his employment with the municipality where he was injured Wilcox also was performing services as a real estate salesman for Settani Associates, a real estate broker. The commissioner below ruled that claimant was an employee of Settani and that the commissions paid him in the six months period previous to the injury, $7,359.72, were concurrent employment earnings.

Under Sec. 31-310 the Second Injury Fund is obligated to pay that portion of a workers’ compensation rate which is derived from such concurrent employment. The fund has therefore appealed the finding of concurrent employment. In its brief the Fund cites Kaliszewski v. Weathermaster Alsco, 148 Conn. 624 (1961) and basically concedes that the commissioner had justifiable precedent to find an employment relationship between a real estate salesman and broker. However it argues that it was incorrect to treat the total of commissions received as wages earned. The Fund contends that expenses incurred in earning those commissions need to be deducted in order to arrive at true wages earned from such employment.

We will not disturb the finding below that because of the necessary affiliation of a real estate salesman with a broker as defined in Sec. 20-311, C.G.S. and because of the evidence of control exercised by Settani Associates in this matter, Wilcox was an employee. But we also agree with the appellant that in order to determine what wages actually were earned from the concurrent employment it was necessary to consider the expenses incurred by claimant to received the commission paid.

Since 1913 when the income tax became constitutionally permissible, and since 1935 when the Social Security Law went into effect and especially since World War II when tax withholding from employees’ wages became prevalent, federal rather than state law has tended to dominate discourse about earnings from employment. Nonetheless, “The failure to withhold social security or income taxes. . . does not preclude a finding that the plaintiff was in fact an employee.”

Kaliszewski v. Weathermaster, supra, 630. Under our state law “Where the contract of employment does not fix the average weekly earnings, they must be determined by ascertaining. . . the reasonable value of such services. . .,” Cormican v. McMahon, 102 Conn. 234, 236 (1925).

Later our court ruled “does the allowance represent a real and reasonably definite economic gain to the employee. . . and, if so, what amount fairly represents that economic gain.” Thibeault v. General Outdoor Advertising Co., Inc., 114 Conn. 410, 414 (1932). Hence earnings or wages are the net “definite economic gain” to the employee. In computing that net it is logical that the commissioner must deduct whatever expenses were necessary to gain the gross sums received.

Therefore although we agree that the Settani Associates services performed were concurrent employment under Sec. 31-310, we sustain the appeal and remand for further proceedings to determine the actual amount of concurrent employment wages.

Commissioners Robin Waller and Andrew P. Denuzze join in this opinion.

[1] Sec. 31-310 states in part: Where the injured employee has worked for more than one employer at the time of injury and the average weekly wage received from the employer in whose employ he was injured, as determined under the provisions of this section, are insufficient for him to obtain the maximum weekly compensation rate from such employer under section 31-309 prevailing at the time of his injury, his average weekly wages shall be calculated upon the basis of wages earned from all such employers in the period of such concurrent employment not in excess of twenty-six weeks prior to the date of the injury, but the employer in whose employ the injury occurred shall be liable for all medical and hospital costs, a pro rata portion of the compensation rate based upon the ratio of the amount of wages paid by him to the total wages paid the employee in such average week but not less than an amount equal to the minimum compensation rate prevailing at the time of injury and, if he is totally incapacitated, the applicable dependency allowance, if any, due under section 31-308b. The remaining portion of the applicable compensation rate shall be paid from the second injury and assurance fund.