Opinion
CASE NO. 4792 CRB-2-04-3CLAIM NO. 200139135
MAY 19, 2005
The claimant was represented by Seymour A. Rothenberg, Esq., Rothenberg Law Offices, 239 Silas Deane Highway, P.O. Box 290767, Wethersfield, CT 06129-0767.
The Second Injury Fund was represented by Brewster Blackall, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the February 25, 2004 Finding and Award of the Commissioner acting for the First District was heard October 22, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Charles F. Senich and Howard H. Belkin.
OPINION
The respondent Second Injury Fund has petitioned for review from the February 25, 2004 Finding and Award of the Commissioner acting for the First District. The Fund contends on appeal that the trier erred by incorporating the value of illegally-distributed prescription medication into the claimant's average weekly earnings for the purpose of calculating his compensation rate under § 31-310 C.G.S. We disagree with this description of the trier's wage calculation method, and affirm the trial commissioner's decision.
The relevant facts found by the trier are as follows. The claimant suffered severe injuries on March 11, 2002, when he fell 20-25 feet after slipping off a roof during the course of his employment. On that date, workers' compensation insurance was carried by neither the claimant's immediate employer, Theodore Netcoh, nor the principal employer who had contracted with Netcoh to perform that roofing job, Steven Steinberg d/b/a Affordable Home Remodelers, LLC. Thus, the respondent Second Injury Fund was forced to assume liability for benefits pursuant to § 31-355 C.G.S.
The claimant testified that he was to be paid at the rate of $15.00 per hour for his employment. The trier also found that, based on the evidence, the roofing job was to take one week, and would require at least 40 hours of work by the claimant. However, the trier also noted that the claim "delves into the realm of murkiness when it comes to how much the Claimant was earning and how he was paid." There was no documentary evidence, such as W-2 forms or pay stubs, to verify how much the claimant was actually paid. Moreover, both the claimant and a frequent co-worker, Jay DeLorge, testified that Netcoh paid them wages with a mixture of cash and prescription pain medications such as Percocet, Oxycontin and Vicodin. The trier found that the claimant had drug problems, though there was no evidence to show that he was under the influence of drugs at the time of the accident. Thus, drug use did not preclude the compensability of his injuries.
In calculating the claimant's weekly wage, the trier multiplied his $15.00 per hour agreed-upon wage rate by 40 hours to obtain an average weekly wage of $600 per week, which in turn yields a base compensation rate of $357.41. The Fund claims error on appeal with regard to that finding. According to the Fund, the trier would have to had included the value of the controlled substances as part of the claimant's compensation in order to reach an average weekly wage of $600 per week. The Fund asserts that this would be contrary to both the Workers' Compensation Act and public policy. While we agree that including the value of illegally-obtained drugs in a claimant's wages would likely violate public policy, we need not reach that issue under this set of facts.
Pursuant to § 31-310, a claimant's average weekly wage is most commonly ascertained by "dividing the total wages received by the injured employee from the employer in whose service he is injured during the fifty-two calendar weeks immediately preceding the week during which he was injured, by the number of calendar weeks during which, or any portion of which, the employee was actually employed by the employer." However, when a claimant has worked for two weeks or less during the period of employment immediately preceding the injury, "the employee's weekly wage shall be considered to be equivalent to the average weekly wage prevailing in the same or similar employment in the same locality at the date of injury except that, when the employer has agreed to pay a certain hourly wage to the employee, the hourly wage so agreed upon shall be the hourly wage for the injured employee and his average weekly wage shall be computed by multiplying the hourly wage by the regular number of hours that is permitted each week in accordance with the agreement." (Emphasis added.)
Here, the record shows that the claimant was injured on the first day of his employment on this job. As no pattern of actual payment of wages could be established, the trier followed the directive of § 31-310 by looking for evidence of an agreement between the parties as to an hourly wage and the regular number of hours per week permitted under the employment contract. The claimant testified that Netcoh hired him to strip and re-shingle a roof, that Netcoh told him he'd pay $15 per hour to do the work, and that it would take 40 to 50 hours to finish the assignment. July 30, 2003 Transcript, p. 14. The hourly wage was corroborated by DeLorge, who worked as Netcoh's foreman, and had been assisted by the claimant on different jobs. March 18, 2003 Transcript, pp. 32, 46.
In the absence of precise written documentation as to the terms of the hiring agreement, the trier was within his rights in relying on the testimony of these two witnesses to establish the claimant's average weekly wage rate at $15 per hour, for a 40-hour workweek. McCurrey v. Nutmeg Express, 4342 CRB-5-01-1 (January 3, 2002). The commissioner properly declined to infer that the claimant would have been compensated for his work, in whole or in part, via the unlawful distribution of controlled substances. Even if there was a demonstrated pattern of such activity in the past, it was not the place of the trier to assume or speculate that such illegal activity would have occurred on this job as well. By statute, the claimant was rightfully due the wages he contracted for and earned under this agreement, and we must presume that the employer intended to pay him pursuant to this contract. See § 31-71e C.G.S. (employer may not withhold or divert any portion of employee's wages unless required or empowered to do so by law, or authorized in writing by employee); see also, Phelan v. Soda Construction Co., 14 Conn. Workers' Comp. Rev. Op. 389, 2107 CRB-3-94-7 (October 17, 1995) (where claimant was due wages for work performed, but had not yet received his paycheck at time of injury, CRB deemed those wages as having been paid). We stress again, however, that this Commission does not condone the unlawful use or exchange of controlled substances, and we cannot envision a scenario by which we would consider the value of such substances as part of a claimant's earnings under a different set of facts.
The trial commissioner's decision is hereby affirmed. Pursuant to § 31-301c C.G.S., interest is awarded to the claimant with respect to any portion of the award that may have remained unpaid pending the outcome of this appeal.
Commissioners Charles F. Senich and Howard H. Belkin concur.