Opinion
CASE NO. 900 CRD 4-89-7CASE NO. 986 CRD-2-90-2
FEBRUARY 4, 1991
The claimant was represented by Russell M. Lehman, Esq., and Albert J. McGrail, Esq., both of McEleney McGrail.
The respondents were represented by Michael Belzer, Esq., and Diane Duhamel, Esq., Assistant Attorneys General.
The claimant was represented by Robert M. Fitzgerald, Esq., Asselin Associates.
The respondents were represented by Michael Belzer, Esq., Assistant Attorney General.
This Petition for Review from the July 25, 1989 Finding and Award of the Commissioner for the Fourth District was heard June 29, 1990, before a Compensation Review Division panel consisting of the Commission Chairman, John, Arcudi, and Thomas White and James Metro.
This Petition for Review from the February 22, 1990 Corrected Finding and Award of Compensation of the Commissioner for the Second District was heard June 29, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Thomas White and James Metro.
OPINION
These two appeals from the Fourth and Second Districts concern employees of state institutions that care for the mentally ill or mentally retarded. Each employee sought benefits measured by Sec. 31-307 C.G.S. rather than Sec. 5-142(a) C.G.S. provisions. In the Fourth District matter, Palmer v. Connecticut (Fairfield Hills), 900 CRD-4-89-7, the commissioner denied the Sec. 31-307 computation. In the Second District case, Jones v. Connecticut (Mansfield Training School) 986 CRD-2-90-2, the commissioner granted it. Palmer was appealed by the claimant and Jones by the state.
Sec. 31-307 provides that an employee suffering a compensable injury shall receive a weekly benefit for total disability "equal to sixty-six and two thirds percent of his average weekly earnings at the time of injury." Sec. 5-142(a) states that if an injury results in total incapacity, the eligible employee "shall continue to receive the full salary which he was receiving at the time of injury subject to all salary benefits of active employees." Ordinarily, therefore, Sec. 5-142(a) benefits are higher than Sec. 31-307 benefits, i.e. full salary rather than two thirds of wages.
However in these two instances both employees had greatly augmented their basic remuneration during the twenty-six weeks preceding their respective injuries. This occurred as they each had considerable overtime earnings in the base period. Thus Palmer's weekly salary was $462.80. But when the overtime earnings where included, her weekly average wage was $758.04. Jones' weekly salary was $310.15. With overtime her average weekly earnings were $694.26.
Sec. 31-310 C.G.S. provides that the "average weekly earnings" mentioned in Sec. 31-307 shall be for the twenty-six calendar weeks immediately preceding that during which he was injured.
In Palmer's case, the Sec. 31-307 formula, sixty-six and two thirds per cent of average earnings would have given her a benefit rate of $505.36, in excess of her weekly salary, $462.80. Similarly Jones' Sec. 31-307 benefit rate would have been $462.86, also substantially in excess of her $310.15 weekly salary.
At the District level the parties' arguments centered on an election of remedies approach, i.e. did the state employees involved have the right to select either the Sec. 31-307 or the Sec. 5-142(a) formula for calculation of benefits. Both the Second and the Fourth District Commissioners based their conflicting conclusions on their interpretation of that contention. The parties' C.R.D. briefs submitted before argument continued to concentrate on that issue. But during oral argument the C.R.D. panel questioned whether the words "full salary . . . subject to all salary benefits of active employees" in Sec. 5-142(a) did not actually mean salary plus overtime earnings. The claimants subsequently filed supplemental briefs on that point. The state submitted no further document as "there are insufficient findings to address that issue" and it was not sufficiently raised below.
We first consider the election of remedies Reasons of Appeal. Sec. 5-142(a) was first enacted in 1939, General Statutes Sup. 1939, Sec. 78e. When it was passed, the worker compensation law then in force provided a weekly benefit equal to fifty per cent of the employee's average weekly earnings. Mary of the benefits which now exist for employees of private industry were not then in the law. Concededly therefore, the 1939 legislation for those state employees in hazardous occupations was designed to give them a higher level of benefits than those engaged in private industry. "Simply stated, Sec. 5-142(a) provides special, enhanced benefits to special, enumerated groups of state employees." Lucarelli v. State, 16 Conn. App. 65, 68.
In the half century since 1939 while the computation provisions for private sector employees significantly augmented their benefits, the "full salary . . . subject to all salary benefits" language for these groups of state employees was not altered. The National Labor Relations Act of 1935 created revolutionary changes in collective bargaining in that same half century. Similarly, the Fair Labor Standards Act of 1938 gave legal status to the forty hour week with premium pay for overtime, and this too caused cataclysmic changes in wage and hour law provisions throughout the nation.
State employees had no collective bargaining rights in 1939. There still persisted the ancient legal doctrine descended from the British monarchy that to enter into a labor contract with a group of government employees was somehow an infringement of state sovereignty. This concept became an anachronism in 1975 when Public Act 75-566, now Secs. 5-270 et seq., was passed. As there declared, state employees from then on were to "be protected in the exercise of the right of self-organization, . . . to bargain collectively through representatives of their own choosing on questions of wage, hours and other conditions of employment." Because of those rights and others developed during the same fifty years, overtime pay beyond the stated weekly or biweekly salary amounts became common for many state employees.
Throughout this historical era the Sec. 5-142(a) full salary provisions remained as first passed. It is not unusual that legislation originally passed to confer higher benefits on a special group fails fully to carry out that aim. A 1967 law interpreted in a decision cited for other purposes in the briefs of both sides, Going v. Cromwell Fire District, 159 Conn. 53 (1970) is illustrative of that very fact. That law, Sec. 7-314a sought to give volunteer firemen the maximum workers' compensation benefit rate. It did this with the following language in Sec. 7-314a(b): "For the purpose of this section, the average weekly wage of a volunteer fireman shall be construed to the average production wage in the state as determined by the labor commissioner under the provisions of section 31-309." At that time the maximum benefit was equal to two thirds of the average production wage, so the new statute enabled injured volunteer firemen to receive the maximum. However in subsequent years the maximum rate was raised first to eighty-five percent, then to one hundred (100%) and finally in 1987 to one hundred and fifty (150%) percent of the average production change. But the language of Sec. 7-314a did not change. So a law whose aim was to give volunteer firemen the maximum benefit now only gives them 44.4% of that maximum.
Our research has only discovered one election of remedies decision involving workers' compensation benefits, Bakelaar v. West Haven, 193 Conn. 59 (1984). That, also concerned a special remedy under the Municipalities title, Sec. 7-433c. There the court ruled that a West Haven policeman could elect to have his claim declared compensable either under Sec. 7-433c or under chapter 568, the traditional workers' compensation law. As the policeman had chosen to do so under Sec. 7-433c, the city could not force a hearing under chapter 568. Bakelaar distinguishable from the matters now before us as it concerned a choice of proof for compensability. Here the matters are admittedly compensable. The only question concerns the benefit amount.
Sec. 5-142(a) after the sentences creating full salary benefits contains the following: "All other provisions of the workers' compensation law not inconsistent herewith, including the specific indemnities and provisions for hearing and appeal shall be available to any such state employee or the dependents of such a deceased employee." We think Sec. 31-307 defining compensation as equal to sixty-six and two thirds per cent of average weekly earnings is inconsistent with the full salary definition of benefits provided in Sec. 5-142(a). We therefore conclude that the claimants' election of benefits argument cannot apply.
The question remains however whether "full salary" includes overtime earnings. Neither "wages" or "salary" is defined in Sec. 31-275. The only definition of remuneration there contained is Sec. 31-275(14): "Income means 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." Black's Law Dictionary, 5th Edition defines salary thus:
A reward or recompense for services performed. In a more limited sense, a fixed periodical compensation paid for services rendered. A stated compensation paid periodically as by the year, month, or other fixed period, in contrast to wages which are normally based on an hourly rate.
The same authority defines wages:
A compensation given to a hired person for his or her services. Compensation of employees based on time worked or output of production. Every form of remuneration payable for a given period to an individual for personal services, including salaries, commissions, vacation pay, dismissal wages, bonuses and reasonable value of board, rent, housing, lodging, payments in kind, tips, and any other similar advantage received from the individual's employer or directly with respect to work for him. Ernest v. Industrial Commission, 246 Wis. 205, 16 N.W.2d 867. Term should be broadly defined and includes not only periodic monetary earnings but all compensation for services rendered without regard to manner in which such compensation is computed. Ware v. Merrill Lynch, Pierce, Fenner Smith, Inc., 24 Cal. App. 3d 35, 100 Cal. Rptr. 791, 797.
Our own Supreme Court commented:
According to some lexicographers the words "wages" and "salary" are synonymous. The words seem to be synonymous convertible terms, though use and acceptation under certain circumstances may have given the word "wages" in significance somewhat different from the word "wages" in this: that the former is understood to relate to compensation given for official or other services as distinguishable from "wages," the compensation for labor.
Walsh v. Bridgeport, 88 Conn. 528, 535-36 (1914)
Walsh was decided three quarters of a century ago. Modern lexicographers seem to agree with the Black's Law Dictionary definition and the latter part of the Walsh excerpt cited above. Although "wages" includes salary remuneration, "salary" is a more restrictive term than "wages." We therefore hold that the overtime wages earned by the claimants are not part of the "full salary" referred to in Sec. 5-142(a). Therefore overtime pay is not to enter into the calculation of benefits for these employees.
The Fourth District decision in Palmer is affirmed and the Second District decision in Jones is reversed.
Commissioners A. Thomas White and James Metro agree.