Opinion
CASE NO. 1225 CRD-5-91-5
JANUARY 7, 1993
The claimant was represented by William J. Dolan, Esq.
The respondent was represented at the trial level by Thomas H. Cotter, Esq., Cotter, Cotter and Sohon, and on appeal by Thomas K. McDonough, Esq.
This Petition for Review from the April 29, 1991 Finding and Dismissal of the Commissioner at Large acting for the Fifth District was heard March 27, 1992 before a Compensation Review Board panel consisting of the then Commission Chairman, John Arcudi and Commissioners Michael S. Sherman and A. Thomas White, Jr.
FINDING AND DISMISSAL
Paragraphs 1-4 of the trial commissioner's Finding and Dismissal as corrected in part May 23, 1991 are made a part of this opinion except that the third paragraph in #4 is deleted and the language appearing below is substituted, all as follows.
The following facts are found:
1. The Stipulation of facts, together with the appended exhibits, is attached to this Finding and Dismissal and is made a part thereof.
2. For the school year 1988/1989 the Claimant was paid 100% of her annual salary.
3. The Claimant seeks to recover compensation benefits for time spent while receiving medical treatment after working hours even though she concedes in the stipulation that she did receive 100% of her annual salary for the subject school year.
4. The Claimant may be entitled to permanent partial disability payments under Section 31-308(b) and she seeks to have her average weekly wage determined by dividing the total amount of wages received during the 26 weeks prior to the week of her injury by the number (16) of those weeks during which she actually worked.
Upon all of the evidence before me, to include the Stipulation of Facts attached hereto, I am satisfied, conclude, and find that as the Claimant was paid 100% of her annual salary by the employer during the school year in question, which year encompassed the time period referred to in paragraph #3 above she is not entitled to receive additional monies, (compensation payments), for time spent receiving medical treatment.
It is further found that the claimant's average weekly wage and basic compensation rate shall be determined by dividing the total amount of wages received by the claimant from the employer during the twenty-six weeks preceding her injury by the number of calendar weeks the claimant was employed by the respondent.
WHEREFORE IT IS ADJUDGED AND ORDER that the Claimant's claim be DISMISSED.
The Claimant is free to pursue other claims for benefits in the future as circumstances may warrant.
OPINION
Claimant's appeal contests the April 29, 1991 dismissal of her claim. In that decision the trier concluded that claimant was not entitled to payment for time spent receiving medical treatment under Sec. 31-312, and that her average weekly wage should be her total annual salary divided by 52.
The operative facts, in part stipulated by the parties, are as follows: Claimant, a teacher for the respondent municipality, sustained a compensable injury on December 13, 1988. As required by the collective bargaining agreement, she was paid 100% of her annual salary for the school year, 1988-1989. The stipulated facts indicate she was also paid temporary total disability benefits from December 14, 1988 to January 11, 1989. Apparently, after January 11 she returned to work. After the work return and outside normal working hours she continued to receive medical treatment for some months from January 17 to April 27, 1989. If, in fact, she did not receive those treatments during working hours, Sec. 31-312 requires that she be compensated for the time spent in treatment at her regular hourly earning rate. However, if the city paid her full salary and also her compensation rate during the four weeks of temporary total disability in December and January, then, seemingly, the city has already paid more than the Compensation Act requires for both the temporary total disability weeks and the hours spent in medical treatment. To determine that the trier needed to calculate the compensation rate for the four weeks in question, the hourly rate of earnings being received after the work return and the number of hours spent in medical treatment.
To determine the compensation rate the average weekly wage must be found as Sec. 31-307 in December, 1988 required an employee's compensation rate to be two thirds of the average weekly wage. Sec. 31-310 prescribes the method to be employed in the computation of the average weekly wage. Arnold v. Tolland Board of Education, 1220 CRD-2-91-4 (decided January 7, 1993) held that Sec. 31-310 requires the average weekly wage to be determined by dividing the total wages claimant received in the 26 weeks prior to the injury by the number of calendar weeks worked. As Arnold is applicable here, we hold the commissioner erred when he divided the claimant's annual salary by fifty-two weeks to get the average weekly wage. We understand the reasoning he employed. He was attempting to adapt a 1913 concept applicable for the hourly industrial laborer to our modern service economy where many employees are reimbursed by annual salaries. But that adaptation needs to be done by the legislature and not by us. We therefore need to remand for proper determination of the compensation rate.
Sec. 31-310 provides in pertinent part: 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 weekly 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 such employee, but, in making such computation, absence for seven consecutive 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. (emphasis ours)
On the issue of whether claimant is entitled to payment for time spent in medical treatment, sec. 31-312(a) provides:
A person receiving medical attention under the provisions of this chapter and required to be absent from work for medical treatment, examination, laboratory tests, x-rays or other diagnostic procedures, and not otherwise receiving or eligible to receive workers' compensation weekly benefits, shall be compensated for the time lost from the job for such medical treatment and tests at the rate of his average earnings, but not less than at the minimum wage established by law, provided the amount payable in any one week shall not exceed the weekly benefit rate of the individual. Time lost from the job shall include necessary travel time from the plant to the place of treatment, the time for the treatment and such other time as is necessary for such treatment, examination or laboratory test. The employer shall furnish or pay for the transportation of such employee by ambulance or taxi where such transportation is medically required from the point of his departure for treatment and return. In all other cases, the employer shall furnish the employee transportation or reimburse him for the cost of transportation actually used, at the rate of fifteen cents per mile for a private motor vehicle or the cost incurred for public transportation, from the employee's point of departure, whether his home or place of employment, and return, if the employee is required to travel beyond a one-fare limit on an available common carrier from such point of departure to the place of treatment, examination or laboratory. Where the medical attention or treatment is provided at a time other than during the employee's regular working hours and the employee is not otherwise receiving or eligible to receive workers' compensation weekly benefits, he shall be compensated for the time involved for such medical treatment as though it were time lost from the job at the rate of his average hourly earnings and shall be paid for the cost of necessary transportation as herein provided.
Here paragraph #4 of the Commissioner's Finding stated claimant "may be entitled to permanent partial disability payments under Sec. 31-308(b)". He also noted that during the period in question claimant received 100% of her annual salary and concluded she was not entitled to receive compensation for time spent receiving medical treatment.
As noted earlier, the employer's obligation under the Act was to pay four weeks temporary total disability benefits at the Sec. 31-307 weekly compensation rate, i.e. two thirds of the average weekly wage, and the hourly earnings rate for the number of hours of medical treatment under Sec. 31-312. We have not been provided with any evidential transcript, but if we understand correctly the facts found and those stipulated, the employer has actually paid the employee's full salary plus four weeks of compensation at the statutory rate. Our jurisdiction is only that conferred by the Act. If the employer has already paid claimant a sum greater than monies due under secs. 31-307 and 31-312, we have no power to order further sums to be paid.
Although it has not been explicitly so stated, the claimant seems to be arguing that she is entitled both to the full salary guaranteed under the collective bargaining agreement and compensation benefits. If that is the argument, our limited statutory jurisdiction does not permit us to interpret the agreement. Such a matter of contractual interpretation is for the courts to decide.
We remand the matter to the Fifth district for further proceedings consistent with this opinion.
Commissioners Michael S. Sherman and A. Thomas White, Jr. concur.