Opinion
CASE NO. 1093 CRD-3-90-8
DECEMBER 27, 1991
The claimant was represented by Michael E. Burt, Esq.
The respondents were represented by Richard L. Aiken, Jr., Esq. and Margaret Corrigan, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the August 1, 1990 Finding of Facts of the Commissioner for the Third District was heard June 28, 1991 before a Compensation Review Division panel consisting of the Commission Chairman John Arcudi and Commissioners Andrew Denuzze and Angelo dos Santos.
OPINION
Claimant and the respondent employer entered into a Voluntary Agreement, approved by the Third District July 25, 1989, which established that this employee had sustained a compensable lumbar spine injury on October 19, 1987 when she slipped and fell on some newly painted stairs at work. That Agreement set her average weekly wage at time of injury as $411.47 entitling her to a compensation rate of $274.31.
In her appeal she contends that when she executed the Voluntary Agreement she did so with an understanding that the amounts for her average weekly wage and compensation rate would later be adjusted upward to reflect the actual remuneration she contracted for at the time she was hired. The appeal also seeks reimbursement for dental bills she claims to have incurred as a result of the injury. The respondent argues that the compensation rate should only be based on wages actually received, relying on the language in Sec. 31-310 "the average weekly wage shall be ascertained by dividing the total wages received."
Claimant actually worked for this employer from September 14, 1987 until the date of injury, October 19, 1987. Her W-2 form prepared by the employer for the 1987 tax year shows she earned $1933.43 in regular wages for that period. (Exhibit A) The 1099 federal form for miscellaneous income during the same period shows $123.28 earned from that employer. (Exhibit A) This totals $2056.71 in wages received from the respondent in 1987. However, the Voluntary Agreement back page prepared by the employer shows that she had $10,698.09 in earnings for twenty-six weeks preceding her injury. The front page of the Voluntary Agreement form contains the actual Agreement signed by both the employee and the employer or the insurer. The back page of the form is the calculation sheet from which the numbers on the front page are derived. The Third District Findings make this inconsistency even more confusing. Finding #7 indicates the employee worked during the preceding twenty-six weeks, "said calculations based on a twenty-six week wage period." Finding #8 states, "The Claimant worked for the Respondent-employer approximately five weeks." This confusion is further compounded by item #17 on the front page of the Voluntary Agreement showing the number of weeks worked as 59.
The oral agreement allegedly entered into at time of hire and relied on by claimant in her argument was that claimant should receive $400.00 per week plus time and a half or $120.00 for each Sunday worked. In addition she claims she was to have received 2% commission on sales made. She alleges that she received no pay for five Sundays worked and was only paid 1% commission on sales. Her argument concludes with the claim that the sums she should have received under the contract of hire need to be added to the wages received in order to establish a compensation rate. As her work for this employer covered such a short period, she contends, there had not been sufficient opportunity to adjust the remuneration she actually received. To support her argument she presented the testimony of Frank Lis, the company sales manager who interviewed and hired her in September, 1987. In Finding #13 the trial commissioner found that Frank Lis confirmed claimant's version of the contract of hire.
The commissioner held that only "actual wages received . . . should be used to calculate her compensation rate." This tribunal was held, Ericson v. Perreault Spring Equipment Company, 9 Conn. Workers' Comp. Rev. Op., 1008 CRD-5-90-4 (July 17, 1991) 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. We relied in Ericson on Sec. 31-315 which permits the reopening of a Voluntary Agreement where "changed conditions of fact have arisen which necessitate a change of such agreement . . . in order properly to carry out the spirit of this chapter." The claimant's argument here is somewhat similar in that the facts alleged are different and changed from those underlying the Voluntary Agreement.
The claimant bases her contention only on the alleged oral contract which has not been fulfilled. However, her claim raises other concerns. Both the U.S. Fair Labor Standards Act of 1938 and Connecticut's own wage hour law, Secs. 31-70 et seq., especially Sec. 31-76b, define the normal work week as forty hours and require overtime pay for hours worked beyond that number. Kreidler v. Bic Pen Corporation, 16 Conn. App. 437 (1988) addressed that issue:
There is a presumption that parties contract in the light of existing statutes. Statutes existing at the time a contract is made become a part of it and must be read into it just as if an express provision to that effect were inserted therein, except where the contract discloses a contrary intention. Therefore, the terms of statutes must necessarily prevail over inconsistent provisions in collective bargaining agreements. (citations omitted), supra, 442.
Here, if in fact the claimant had worked on Sunday each of the five weeks beyond the normal forty hour week, she was by law entitled to overtime pay from her employer. Sec. 31-310 does not refer to "wages actually received" as respondent argues. It refers to "total wages received." The law often presumes that what should have been done has been done. In this case, such a presumption would have entitled the claimant to have the overtime pay included in the calculation of her compensation rate. Because the claimant's contention involves a possible violation of law by the employer and because the compensation rate found below seems at least in part to be based on the Voluntary Agreement the computations for which derive from inconsistent or mistaken facts, the matter needs to be remanded to the Third District for further proceedings.
Claimant's other argument that her dental problems and the bills for services caused by those problems were related to the work injury is dependent on a factual determination by the commissioner. Ordinarily on appellate review, we cannot disturb such factual determinations. However, in Finding 20 B. the commissioner seems to be basing his conclusion that the dental injuries were not connected by the Voluntary Agreement. As the Voluntary Agreement itself is in part seemingly incorrect, this Finding also needs to be reexamined.
The matter is remanded to the Third District for further proceedings consistent with this opinion.
Commissioners Andrew Denuzze and Angelo dos Santos concur.