CASE NO. 1010 CRD-5-90-5Workers’ Compensation Commission
OCTOBER 21, 1991
The claimant was represented by Paul Ranando, Esq. and Edward T. Dodd, Esq.
The respondents were represented by Ralph Russo, Esq., McGann, Bartlett Brown.
The Second Injury Fund was represented by Diane Duhamel, Esq., and Robin Wilson, Esq., Assistant Attorneys General. However, the Fund did not appear at oral argument.
This Petition for Review from the April 23, 1990 Finding and Dismissal of the Commissioner for the Fifth District was heard February 22, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and Donald Doyle.
OPINION
JOHN ARCUDI, CHAIRMAN.
Claimant seeks review of the Fifth District dismissal of his claim. The claim involved is one for concurrent employment benefits pursuant to Sec. 31-310.
Claimant was employed by a local manufacturer but was also a member of a volunteer fire company in Prospect. On September 29, 1988 while engaged in fire training, he suffered a compensable myocardial infarction. At issue is the amount of the weekly compensation he was entitled to receive.
The appeal contends that his rate should include wages earned at his full-time employment in addition to wages calculated as the compensation rate under Sec. 7-314a. Section 7-314a provides in pertinent part:
Sec. 7-314a. Death, disability and injury benefits. Presumption. (a) Except as provided in subsection (e) of this section, 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 duty.
(b) For the purpose of this section, 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.
(c) For the purpose of this section, there shall be no prorating of compensation benefits because of other employment by a volunteer fireman.
Section 31-310 provides in pertinent 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.
We agree with the Fifth District that claimant was not entitled to Sec. 31-310 concurrent employment benefits. The controlling precedent is Going v. Cromwell Fire District, 159 Conn. 53 (1970). That case held that an insurance carrier could not under Sec. 31-310, pro rate compensation sums paid pursuant to Sec. 7-314a with the Second Injury Fund. The Going insurance carrier argued that a volunteer fireman sustaining a compensable injury while performing fire duties was entitled both to Sec. 7-314a
and Sec. 31-310 benefits. The carrier argued that as claimant was also regularly employed at the time of the fire injury it was entitled under Sec. 31-310 to reimbursement of a pro rate share. Going held that Sec. 31-310 did not apply:
“If we were to agree with the Aetna’s contention that Sec. 31-310 applied to this case, we would have to ignore Sec. 7-314a(b) and instead determine the plaintiff’s average weekly wage on the basis of wages `earned’ from Western Electric and the fire district. Where there are two inconsistent methods of computation such as we have in the present case, the method of computation which covers the subject matter in specific terms, herein as particularly applied to volunteer firemen, will prevail over the general language of another statute which might otherwise prove controlling. (citation omitted) Since the proration provision of Sec. 31-310 is inextricably linked to a method of computation which is incompatible with Sec. 7-314a, it cannot be read into or reconciled with that statute . . . .” Id. at 60.
Here claimant maintains that the Going holding only pertains to the Second Injury Fund’s liability for a reimbursement of a pro rata portion of benefits paid. We do not agree. Sec. 31-310 prescribes an alternative method of computation inconsistent with the method prescribed under Sec. 7-314a. Further, as Going noted, had the legislature intended otherwise it could merely have amended Sec. 31-275 so as to include volunteer firemen within the definition of employee.
More recently we considered whether a state employee entitled to benefits under Sec. 5-142(a) is entitled to a calculation of wages including concurrent employment. See Benoit v. State of Connecticut, 9 Conn. Workers’ Comp. Rev. Op. 58, 920 CRD-2-89-9 (1991). Relying on Going we held that a state employee receiving benefits under Sec. 5-142(a) was not entitled to the Sec. 310 concurrent employee provisions. Benoit’s rationale is equally applicable here.
The appeal is dismissed and the Fifth District decision is affirmed.
Commissioners Frank Verrilli and Donald Doyle concur.