Opinion
CASE NO. 1241-CRD-5-91-6
FEBRUARY 26, 1993
The claimant was represented by James Connolly, Esq., Rodie and Connolly.
The respondents, Joyce Moving and Storage and Liberty Mutual Insurance Company were represented by Kevin Maher, Esq., Scott Wilson Williams, Esq., and Carolyn A. Signorelli, Esq. all of Maher and Williams.
The Second Injury Fund was represented at the trial level by Cori-Lynn Webber, Esq., formerly Assistant Attorney General.
This Petition for Review from the May 21, 1991 Finding and Award of the Commissioner for the Fifth District was heard April 24, 1992 before a Compensation Review Division panel consisting of the then Commission Chairman, John Arcudi and Commissioners Robin Waller and Angelo L. dos Santos.
OPINION
Claimant's appeal from the Fifth District May 22, 1991 Finding and Award disputes the compensation rate found by the commissioner. There had been a previous July 5, 1990 granting an irrebuttable presumption of compensability under Sec. 31-297(b) for Claimant's October 26, 1989 injury. The May 22, 1991 ruling found claimant's compensation rate to be $312.68 based on an average weekly wage of $469.01. The commissioner found that claimant had been employed by the respondent employer for twelve of the twenty-six weeks preceding the injury and derived his calculation of the wage from the earnings over those twelve weeks. Claimant argues that he worked for that employer more than those twelve weeks and those other weeks' earnings should be included in the calculation of the wage under Sec. 31-310.
Joyce Moving and Storage, the employer, as part of its business, lent out its employees to owner/operators of trucks with which Joyce Moving and Storage had contracted for hauling Joyce's vans. On the date of the injury, October 26, 1989, claimant had been lent to a truck tractor owner-operator, Michael Jablon. During the twenty-six weeks prior to the injury claimant contended that his services had also been lent to two other owners, Donald Uphold and Michael Sherwood. He sought to offer proof of additional wages received as a result of those periods. The commissioner refused that offer of proof.
The lent employee statute, Sec. 31-292, mandates that the lending employer, Joyce Moving and Storage, "be deemed to continue to be the employer of such worker while he is so lent or hired by another." At the time of injury in 1989 the compensation rate was sixty-six and two-thirds per cent of the average weekly wage. The respondent contends Sec. 31-310 determines average weekly wage on the basis of wages received "from the employer in whose service the claimant is injured."
Sec. 31-310 provided at the time of claimant's injury: For the purposes of this chapter, the average weekly wage shall be ascertained by dividing the total wages received by the injured worker from the employer in whose service he is injured during the twenty-six calendar weeks immediately preceding that during which he was injured, by the number of calendar days, although not in the same calendar week.[,] shall be considered as absence for a calendar week. When the employment commenced otherwise than at the beginning of a calendar week, such calendar week and wages earned during such week shall be excluded in making the above computation.
We recently construed Sec. 31-310 in Graziano v. St. Mary's Hospital, ___ Conn. Workers' Comp. Rev. Op. ___, 1230 CRD-5-91-5 (February 8, 1993). See also, Arnold v. Tolland Board of Education, ___ Conn. Workers' Comp. Rev. ___, 1220 CRD-2-91-4 (January 7, 1993[)]; Sweeney v. City of Waterbury, ___ Conn. Workers' Comp. Rev. Op. ___, 1225 CRD-5-91-5 (January 7, 1993). Graziano, supra, held Sec. 31-310 needed to be read together with unemployment compensation and other statutes in Title 31 in order to determine what constitutes "wages." Graziano cited Sec. 31-76b's exclusions from the calculation of regular rate to show that the exclusions did not apply to payments based on hours worked or payments due to contractual or quasi-contractual obligations.
Thus, if the claimant received other remuneration for his services during the twenty-six weeks base period provided in Sec. 31-310 as a result of contractual arrangements between his employer, Joyce Moving and Storage, and the owner operators to whom his services were lent, then evidence of such remuneration should be admitted. Moreover, if the facts of such contractual arrangements warranted, then those sums should be included in the wage base upon which the average weekly wage was computed.
We therefore remand the instant matter for further proceedings consistent with this opinion.
Commissioners Robin Waller and Angelo dos L. Santos concur.