Opinion
CASE NO. 3061 CRB-5-95-5
DECEMBER 10, 1996
The claimant was represented by Robert B. Yules, Esq., Yules Yules and William J. Shea, Esq., Atty. Shea appeared at oral argument.
The respondents were represented by Robert G. Montstream, Esq., and David Kelly, Esq., Montstream May.
The respondent Second Injury Fund was represented at the trial level by Philip Schulz, Esq., Assistant Attorney General. On appeal the Second Injury Fund was represented by Taka Iwashita, Esq., and Brewster Blackall, Esq., both Assistant Attorneys General.
This Petition for Review from the May 11, 1995 Supplemental Finding and Award of the Commissioner acting for the Fifth District was heard April 19, 1996 before a Compensation Review Board Panel consisting of Commissioners George Waldron, Nancy A. Brouillet and Michael S. Miles.
OPINION
The respondent has petitioned for review from the Commissioner acting for the Fifth District's May 11, 1995 Supplemental Finding and Award. In that Supplemental Finding the trial commissioner delineated the recalculation of the claimant's compensation so as to allow for overtime wages which were due the claimant. That Supplemental Finding was the result of this tribunal's remand in Tyc v. Calabrese Construction Co., 1529 CRB-5-92-10, 13 Conn. Workers' Comp. Rev. Op. 71 (Dec. 29, 1994) [hereinafter Tyc I].
The respondent Second Injury Fund also filed an appeal from the May 11, 1995 Supplemental Finding and Award. In a Statement of The Second Injury Fund As To Reasons Of Appeal And Brief filed April 18, 1996, the Second Injury Fund adopted the arguments and position of the respondents-appellants Calabrese Construction Co., and Northbrook Property and Casualty Insurance Co.'s in this matter. In an exercise of judicial economy and administrative convenience we have considered the appeals as one. The holding of this opinion insofar as it discusses and relates to the respondents-appellants, Calabrese Construction Co., and Northbrook Property and Casualty Insurance Co.'s appeal also relates to the appeal filed by the Second Injury Fund.
In Tyc I this tribunal was asked to consider inter alia, whether the claimant was entitled to have his average weekly wage computed on the basis of fifty-five hours per week paid at a straight time rate of $16.00 per hour or fifty-five hours per week based on a sum reflecting work in excess of forty hours at an overtime rate required by § 31-76c C.G.S. In Tyc I, supra at 74 the CRB panel concluded:
Fiore v. Office Furniture Depot, 10 Conn. Workers' Comp. Rev. Op. 15, 1093 CRB-3-90-8 (1991), considered a situation where claimant had not received, but seemed entitled to overtime pay. Because the law "often presumes that what should have been done has been done," we held that the claimant was entitled to have the overtime pay included in the calculation of her compensation rate. Id., 17. As in Fiore, we remand this case to the Fifth District for further proceedings regarding the inclusion of overtime pay in claimant's average weekly wage."
The trial commissioner, consistent with the CRB's opinion, rendered his May 11, 1995 Supplemental Finding and Award in which he found the claimant's average weekly wage was $1000.00. The $1,000.00 represented 40 hours at $16.00 per hour with an additional 15 hours at $24.00 per hour.
The respondents took the instant appeal and ask this tribunal to consider whether the trial commissioner erred when he concluded that the claimant was entitled to an average weekly wage computation based on a portion of wages at an overtime rate and the trier proceeded to calculate that rate. Succinctly put, the respondents contend that this commission lacks the authority to decide an issue arising under § 31-76c as that statute is not a part of our Workers' Compensation Act. We disagree.
The body of Workers' Compensation case law has often referred to other statutes and case law for guidance in consideration of legal issues arising under the Workers' Compensation Act. Most notably we refer the respondent to our Appellate Court's opinion in Kreidler v. Bic Pen Corporation, 16 Conn. App. 437, 442 (1988). In Kreidler the Appellate Court was asked to consider whether a claimant was entitled to have an average weekly wage calculation which included overtime. The Appellate Court's decision is replete with references to § 31-76 et seq. Furthermore as the Appellate Court noted, "Statutes existing at the time a contract is made become a part of it and must be read into it just as if an express provision to that effect were inserted therein, except where the contract disclosed a contrary intention. (citation omitted)" Kreidler, 16 Conn. App. 437, 442 (1988).
We believe that the respondent-appellant is merely seeking to have this board reconsider our earlier opinion Tyc I. We were unpersuaded by the arguments raised then and this most recent elucidation of those arguments is again unpersuasive. Furthermore, if the respondents wished to challenge our earlier ruling in Tyc I the appropriate procedural mechanism would have been to file an appeal with the Appellate Court. Cf. Sidella v. Kelly Services, Inc., 41 Conn. App. 116 (1996). Our Supreme Court has noted, "[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (citations omitted) Breen v. Phelps, 186 Conn. 86, 99 (1982). We believe the law of the case applies and we can see no reason or circumstance which compel us to depart from our earlier ruling in this matter.Mingrone v. Burndy Corp., 1403 CRB-7-92-3, 12 Conn. Workers' Comp. Rev. Op. 19 (Jan. 13, 1994).
Finally, we note that the claimant-appellee filed a Motion To Dismiss on the basis that the Compensation Review Board lacked subject matter jurisdiction over the respondents' appeal from the May 11, 1995 Supplemental Finding and Award. We deny the claimant-appellee's Motion To Dismiss. In support of the Motion To Dismiss the claimant-appellee argues that as the trial commissioner did not hold further hearings the trial commissioner's Supplemental Finding and Award was merely the exercise of a ministerial act and not an appealable final judgment. We disagree. Sec. 31-301 (a) provides:
At any time within ten days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner from which the award or the decision on a motion originated an appeal petition and five copies thereof.
In this particular instance it appears the trial commissioner did not find it necessary to conduct additional proceedings. We can only infer that the trial commissioner was satisfied that the record was complete enough so as to enable him to make the overtime determination and thus, further proceedings were unnecessary. We believe the trial commissioner's inference was appropriate and his overtime calculation did not require the taking of additional evidence. However, the commissioner could have held additional evidentiary proceedings had he so chosen. As the trial commissioner maintained the opportunity to exercise his independent judgment as a fact finder regarding the claimant's overtime calculation, the trier's Supplemental Finding and Award is appealable to this body. See Boulay v. Waterbury, 27 Conn. App. 483 (1992). The appellee's Motion To Dismiss is denied.
Finally we note that the claimant-appellee at the time of oral argument made a Motion For Attorney's Fees pursuant to Sec. 31-300. We can only assume that the claimant now seeks attorney's fees for the period between the time of the trial commissioner's Supplemental Finding and Award and the time of this decision. As the issue of Attorney's Fees for the period we believe in question was not included as part of the post Compensation Review Board remand of the trial commissioner, we will not now consider the motion. A ruling on such a motion requires an evidentiary basis. Claimant's counsel is free to bring the motion before a trial commissioner if the matter is not already moot.
We note subsequent to oral argument attorney's fees were awarded pursuant to the Commissioners acting for First District's July 23, 1996 Order Re: Attorney's Fees and Sept. 6, 1996 Supplemental Order Re: Attorney's Fees. It may well be that the Motion For Attorney's Fees is now moot. We also note that an appeal from these Orders was filed with the Compensation Review Board and withdrawn October 16, 1996. Additionally we note that Attorney's Fees were part of Commissioner Spain's original Finding and Award which was considered as part of Tyc I,. Tyc v. Calabrese Construction Co., 1529 CRB-5-92-10, 13 Conn. Workers' Comp. Rev. Op. 71 (Dec. 29, 1994).
We therefore for the reasons stated above dismiss the respondents' appeal from the May 11, 1995 Supplemental Finding and Award and affirm the trial commissioner's decision in this matter. Having concluded as we have we award interest pursuant to Sec. 31-301c(b) to any amounts which were unpaid during the pendency of this appeal.
Commissioners Nancy A. Brouillet and Michael S. Miles concur.
Comm. Brouillet at oral argument divulged that she presided over an informal hearing in this matter. The parties appearing at oral argument waived any objection to Comm. Brouillet's participation in this matter.