OPINION

JOHN ARCUDI, COMMISSIONER.

Claimant and both respondents have appealed the Fifth District May 6, 1991 decision. The ruling below concluded that claimant's average weekly wage computation include accrued remuneration for sick or vacation time, that Sec. 31-308a benefits were to be paid and that in order to terminate respondents' voluntary payment of Sec. 31-308a benefits, it was not necessary under Sec. 31-296 or 31-296a to file a Form 36.

Claimant sustained a compensable neck and shoulder injury in April, 1981. After reaching maximum medical improvement on April 6, 1985, she was paid 26.25 weeks of permanent partial disability. The respondent insurer, Travelers, voluntarily paid her $161.92 per week to compensate for the diminished earning capacity resulting from the 1981 injury. On December 30, 1985 claimant suffered a compensable right leg injury. She reached maximum medical improvement from that injury in August, 1989 and was entitled to a permanent partial disability of 22.5% of the leg, 53.55 weeks payable weekly until August 24, 1990.

The commissioner ruled "[w]ith or without the injury of December, 1985, claimant's diminished earning capacity would have continued for some undetermined period." Paragraph #7. He then awarded claimant Sec. 31-308a partial wage loss benefits for 40 weeks beginning from the date the respondent Travelers last paid such partial wage loss payments voluntarily. The decision also concluded that the computation base for claimant's average weekly wage applicable to the December, 1985 injury should include accrued sick or vacation time earnings and that Travelers did not need to file a Form 36 under Sec. 31-296 or 31-296a to discontinue its voluntary payment of benefits.

Claimant's appeal argues (1) the voluntary partial wage loss payments made by Travelers deriving from the 1981 injury should have been included in the wage base for calculating the 1985 average weekly wage and (2) Travelers could not terminate the voluntary payment of wage loss benefits in the absence of an approved Form 36. Respondent Travelers' appeal holds that the commissioner should not have ordered payment of Sec. 31-308a partial wage loss benefits attributable to the 1981 injury while claimant was receiving Sec. 31-307 total disability benefits on account of the 1985 injury. The Connecticut Hospital Association Workers' Compensation Trust (CHA) appeal contends the trier erred in including vacation pay and sick pay in the wage base for calculation of claimant's 1985 average weekly wage.

The issue raised by the CHA appeal has to do with the procedures for calculating the average weekly wage. Section 31-310 C.G.S. provides:

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 weeks during which, or any portion of which, such worker was actually employed by such employer, but in making such computation, absence for seven consecutive calendar weeks although not in the same calendar week, shall be considered as absence for a calendar week.

To support its argument CHA cites various decisions interpreting our Unemployment Compensation Act. See e.g., McGowan v. Administrator, 153 Conn. 691 (1966); Geremia v. Administrator, 146 Conn. 264 (1959); Conon v. Administrator 142 Conn. 236 (1955); Kelly v. Administrator, 136 Conn. 482 (1950). Geremia held that holiday pay was to be treated as wages for the purposes of Unemployment Compensation. McGowan did not treat severance and vacation pay as wages for unemployment purposes. Conon and Kelly found claimants ineligible for unemployment compensation during weeks when they received payments for loss of wages. Sec. 31-275(14) of Chapter 568 defines "income" as "all forms of remuneration to an individual from his employment, including wages, accident and health insurance coverage, life insurance coverage and employee welfare plan contributions." Sec. 31-71a(3) of Chapter 558 defines "wages" as "compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation."

The Appellate Court interpreted Sec. 31-71(a)(3) in Kreidler v. Bic Pen Corp., 16 Conn. App. 437 (1988) and more recently in Fulco v. Norwich Roman Catholic Diocesan Corp., 27 Conn. App. 800 (1992). The Kreidler opinion also analyzed Sec. 31-76b to determine the "regular rate" of wages and the extra compensation which was to be counted in the average weekly wage for worker compensation purposes. Fulco concerned a suit by an employee to recover "twice the full amount of such wages" under Sec. 31-72 when an employer failed to pay wages rightly due. The Fulco opinion denied the employee's claim that vacation pay was wages to be included in the Sec. 31-72 calculation.

The Sec. 31-71a(3) definition of wages does not necessarily require that wages be paid weekly as Sec. 31-71b seems to mandate since that definition includes amounts "determined on a time, task, piece, commission or other basis of calculation," e.g. a salesman paid salary and monthly commissions or one being paid only on a monthly commission basis. As Kreidler indicates, Sec. 31-76b needed to define "regular rate" of pay and "hours worked" in order to form a basis for the calculation of overtime pay during hours worked in excess of the normal workweek. "Regular, rate" does not include "(A) sums paid as gifts; . . . as a reward for service, the amounts of which are not measured by or dependent on hours worked, production or efficiency." Nor does it include "(B) payments made for occasional periods when no work is performed due to vacation, holiday, illness . . . which are not made as compensation for his hours of employment." Finally, neither does it include "(C) sums paid in recognition of services performed during a given period if . . . the fact that payment is to be made and the amount of the payment are determined at the sole discretion of the employer at or near the end of the period and not pursuant to any prior contract, agreement or promise causing the employee to expect such payments regularly."

These Sec. 31-76b exclusions therefore do not apply to payments dependent on hours worked or payments by way of compensation for hours worked or sums paid due to contractual or quasi-contractual obligations. If, for example, the employment contract provides that every employee who worked 1500 hours in 1991 shall receive 80 hours of vacation pay in 1992, that vacation pay is not excluded from "regular rate" by the Sec. 31-76b definition. That vacation pay thus becomes extra remuneration allocable to the period over which the employee had to work in order to earn it.

Kreidler in interpreting Sec. 31-76b did not refer to the (A), (B) and (C) exclusions we have cited but rather to the (E) and (G) exclusions. The four unemployment decisions alluded to above did not so much concern the definition of wages or "regular rate." Rather, they simply held claimants ineligible for unemployment compensation during weeks when they received wages or payments in lieu of wages. The unemployment questions thus involved the weeks to which such payments were allocable for unemployment purposes and not to the matter of whether or not the payment themselves were wages. Fulco held that for the purposes of the double damages penalty of Sec. 31-72 and Public Act No. 90-55 vacation pay was not wages.

In the present case the parties agreed that during the period of some nine weeks in July, August and September, 1985 the employee received sick pay and vacation pay. The commissioner counted those sums paid as wages allocable to the actual weeks they were received although claimant was not actually working those weeks. In Ericson v. Perreault Spring Equipment Co., 9 Conn. Workers' Comp. Rev. Op. 171, 1008 CRD-5-90-4 (1991), the claimant sought modification of a Voluntary Agreement to recalculate the average weekly wage by adding the contractually earned year end bonus to the wages earned in the twenty-six weeks preceding the injury. We held opening was permissible to determine if the "year end payment was . . . allocable to all the weeks worked in the preceding year." In applying the "wages" definition of Sec. 31-71a(3), the "regular rate" definition of Sec. 31-76b and our own Sec. 31-310 definition of "average weekly wage" to the present matter, we conclude that the vacation and sick pay earned by this employee may be wages, but if they are, then they are wages, allocable to the period during which the employee worked to earn such payments. They cannot be allocated to weeks in which the claimant did not work. For that reason the CHA appeal must be sustained.

Travelers' appeal attacks the commissioner's conclusions in paragraphs 6, 7 and 8 which state "6. As a result of the April, 1981 injury Claimant suffered a dimunition in her earning capacity. This was evidenced by the weekly payments of temporary partial after the payment of specific benefits and Claimant's return to work. 7. With or without the injury of December, 1985, Claimant's diminished earning capacity would have continued for some undetermined period. 8. Considering the statutory criteria of Sec. 31-308a, 40 weeks of benefits at $161.92 from the date of the last payment is appropriate." Its appeal argues that these findings were without evidence and further that the forty weeks ordered to be paid seemed to be weeks in which the claimant was receiving total disability payments from the 1985 injury.

This argument is misdirected. The commissioner had jurisdiction over the 1981 Travelers' injury, and with respect to that injury, the commissioner could find that claimant had permanently diminished earning capacity entitling her to Sec. 31-308a partial wage loss benefits. He could then find total disability 1985 benefits calculated on the CHA 1985 injury wage total, an amount, permanently diminished by the permanent partial impairment resulting from the 1981 Travelers injury. Given the occurrence and the results of those two injuries, it would have been unfair to the claimant after December 30, 1985 to award her only benefits applicable to the last injury. Thus, this case is different from Smith v. State, 1 Conn. Workers' Comp. Rev. Op. 95, 78-CRD-2-81 (1982) and a later decision in the same matter, 3 Conn. Workers' Comp. Rev. Op. 69 (1986). There the claimant was attempting to receive two types of benefits from the same injury. We applied the rationale of Olmstead v. Lamphier, 93 Conn. 20, 23 (1918), "Our Act does not permit double compensation," and ruled that one could not be at the same time both partially and totally incapacitated. In the present case payment of partial wage loss benefits for the 1981 injury while paying at the same time total benefits for the 1985 injury is not paying double compensation for one injury.

Claimant's appeal contends Travelers could not terminate partial wage loss benefits due to the 1981 injury as of December 30, 1985, the date of the CHA injury, without conforming to the procedures contained in Sec. 31-296 and 31-296a. Those two statutes require the submission of a Form 36, a notice by which an employer indicates an intention to discontinue or reduce payments under a written or oral Agreement, to the commissioner for approval; and payments cannot be discontinued unless and until the commissioner approves such discontinuance in writing.

Platt v. UTC/Pratt and Whitney Aircraft Division, 3 Conn. Workers' Comp. Rev. Op. 3, 164 CRD-6-82 (1985) discussed Sec. 31-296 and Sec. 31-296a and held, "The rule to be followed is that the only time a Form 36 must be filed and approved in writing by the Commissioner is as follows: When an employee is receiving compensation for total or partial incapacity under an agreement, oral or written, an award, or where the employer's acceptance of compensability has been conclusively presumed under subsection (b) of Sec. 31-297 C.G.S. and the employee contends that his incapacity still continues." See also, Applebee v. State of Connecticut, 8 Conn. Workers' Comp. Rev. Op. 142, 841 CRD-5-89-4 (1990). In this instance, although the claimant was free to maintain that partial incapacity from the 1981 neck injury continued after December 30, 1985, the occurrence of the totally disabling leg injury on that date made Secs. 31-296 and 31-296a inapplicable to the particular facts of this case.

Claimant's other argument on appeal asserts that the partial wage loss benefits applicable to the 1981 neck injury should be included in the wage base for the calculation of the 1985 average weekly wage and compensation rate. This argument might have some basis in logic if the law did not permit the continuance of 1981 Sec. 31-308a partial wage loss benefits at the same time that 1985 total disability benefits were being paid. But we have ruled above that these two types of benefits payable for different injuries were not mutually exclusive.

Because respondent CHA's appeal has been sustained, the matter is remanded for further proceedings consistent with this opinion. In such proceedings the commissioner must determine the Sec. 31-308a partial wage loss benefits applicable to the 1981 injury, if any, and the weeks for which they are due. He must also determine the Sec. 31-307 total disability weekly benefit applicable to the 1985 injury, if any, and the weeks for which such benefits are due.

Commissioner's A. Thomas White, Jr. and Roberta D'Oyen concur.