Opinion
CASE NO. 1418 CRB-5-92-5
MARCH 29, 1994
The claimant was represented by Edward T. Dodd, Jr., Esq.
The respondents were represented by Robert G. Montstream, Esq., Montstream May.
This Petition for Review from the May 1, 1992 Memorandum of the Commissioner for the Fifth District was heard February 26, 1993 before a Compensation Review Board panel consisting of Commissioners John A. Arcudi, George A. Waldron and Donald H. Doyle, Jr.
OPINION
A Voluntary Agreement approved in the Fifth District February 3, 1989, established compensability for a September 28, 1988 left eye injury. Claimant sought to modify the Agreement contending the $267.92 weekly compensation rate, based on a $401.88 average weekly wage, was incorrect as it did not include year-end profit sharing sums paid by the employer. We previously affirmed the Commissioner's April 16, 1990 decision granting the request to permit further evidence of those year-end payments as a basis for opening the Award; Ericson v. Perreault Spring Equipment Co., 9 Conn. Workers' Comp. Rev. Op. 171, 1008 CRD-5-90-4 (1991) (Ericson I), the appeal to the Appellate Court was dismissed for lack of final judgment, AC 10472 (Order dated 11/13/91).
In Ericson I, we noted that the trial commissioner had not yet addressed the issue of whether, under Sec. 31-310, which governs the calculation of the claimant's average weekly wage, the amounts paid to the claimant at the year's end could be allocated to the twenty-six weeks' remuneration preceding the claimant's injury. We pointed out, however, that "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." Ericson v. Perreault Spring Equipment Co., 9 Conn. Workers' Comp. Rev. Op. 171, 172, 1008 CRD-5-90-4 (1991).
The parties then agreed to a Stipulation of Facts and submitted it to the trial commissioner for a decision on the legal issues involved. Basing his ruling on the fact that the year end bonus had not been actually received by the claimant during the twenty-six calendar weeks preceding the injury, the commissioner denied the request to include those bonus sums in the calculation of the average weekly wage. That ruling was based on an impermissibly narrow interpretation of the word "received" in General Statutes Sec. 31-310. Under that interpretation, if the employer chose to violate the law and pay an employee less than the legal wage mandated by the U.S. Fair Labor Standards Act or the Connecticut Minimum Wage Law, then the employee, not having actually received his legal wage during the twenty-six weeks preceding the injury, his compensation rate would be less than would have been required if the employer had obeyed the law. This would grant legal sanction to the law breaking employer.
Fiore v. Office Furniture Depot, 10 Conn. Workers' Comp. Rev. Op. 15, 1093 CRD-3-90-8 (1991), is directly contra to the decision below. Fiore relied on Ericson I which "held . . . that it is permissible to include remuneration not yet actually received where the employment contract provided for an end of the year bonus and the bonus was allocable to weeks worked during the previous year." Id., 17; see footnote 1, supra. See also Graziano v. St. Mary's Hospital, 11 Conn. Workers' Comp. Rev. Op. 10, 14, 1230 CRD-5-91-5 (1993).
In 1913 when Connecticut first enacted a workers' compensation law, there were no government mandated minimum wages. In the vast majority of employments there were no unions to create written collective bargaining agreements, employment contracts setting wages to be paid. Rather, it was the employer alone determining the wage to be paid without any real opportunity for the employee's input in setting that wage. In that era, the wages received were those determined and paid by the employer alone, without any interference from the government or collective bargaining representatives. But since then there have been cataclysmic changes in American labor law of which we need to be aware.
The commissioner below made no findings of fact. The facts were stipulated by the parties. His ruling was on an issue of law. "When the trial [commissioner] has no occasion to evaluate the credibility of witnesses or to assess the intent of the parties, the record before it is identical to the record before this [tribunal]. In these circumstances, the legal inferences to be drawn from the documents raise questions of law rather than of fact." Jacob v. Seaboard, Inc., 28 Conn. App. 270, 274, cert. denied, 223 Conn. 923 (1992), citing Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53-54 (1992).
Similar plenary review was rejected in Besade v. Interstate Security Services, 212 Conn. 441, 445-50 (1989). Besade, however, did not involve stipulated facts and supporting documents. Instead, Besade involved conflicting documentary evidence, as well as live testimony. Id., 447-48, 449 n. 12. These factors serve to distinguish the Besade court's discussion of the proper standard of review from the recent appellate decisions we rely upon here.
The stipulated facts show that since 1986 this employee's remuneration was based on both an annual salary and end of year profit sharing; the profit sharing component paid each December was based on profits for that calendar year; the profit sharing amount for 1988 was $19,000, which was consistent with those paid in 1986 and 1987; and in each year the profit sharing sum was a substantial portion of claimant's annual remuneration, ranging from forty-four percent to nearly fifty-three percent of total annual earnings from employment. Thus, the employment contract contemplated an end of the year bonus as a substantial part of claimant's pay in 1988. It was therefore allocable to the weeks he had worked during that calendar year. As such, that portion of the 1988 bonus allocable to the twenty-six weeks preceding the week of injury must be added to the salary amount paid in those weeks ($10,448.88) to determine the correct average weekly wage and the compensation rate.
We, therefore, reverse the decision of the trial commissioner and remand the matter for further proceedings consistent with this opinion.
Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.