Opinion
CASE NO. 3268 CRB-7-96-2CLAIM NO. 700100184
NOVEMBER 7, 1997
The claimant was represented by Frank M. Grazioso, Esq., Grazioso Hosen.
The employer was represented by Booth M. Kelly, Jr., Esq., Murphy Beane.
The Second Injury Fund was represented by Richard Hine, Esq., Assistant Attorney General.
This Petition for Review from the February 5, 1996 Finding and Award of the Commissioner acting for the Seventh District was heard December 13, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Michael S. Miles.
OPINION
The respondent has petitioned for review from the February 5, 1996 Finding and Award of the Commissioner acting for the Seventh District. In that decision, the trial commissioner found that the claimant, a police officer, sustained a compensable injury under § 7-433c. The employer argues on appeal that the Finding and Award is void because it was not issued within 120 days. In addition, the respondent makes the following contentions: (1) the trial commissioner improperly determined the claimant's weekly benefit rate; (2) the claimant's temporary total disability ended on September 25, 1991 rather than February 1992; and (3) the trial commissioner abused her discretion by awarding interest and attorney's fees.
We will first address the respondent's contention that the trial commissioner's decision is invalid because it was made more than 120 days after the record below was closed on August 26, 1995. According to § 31-300 C.G.S., the trial commissioner was required to issue a decision within one hundred twenty days of the close of the hearing. Our Supreme Court has held that the time period in § 31-300 is mandatory, and that prejudice need not be demonstrated to invalidate a late decision. Stewart v Tunxis Service Center, 237 Conn. 71, 76-80 (1996). However, the parties may waive a trial commissioner's noncompliance with § 31-300, either explicitly or implicitly by conduct. Id. at p. 80; Dichello v. Holgrath Corporation, 15 Conn. Workers' Comp. Rev. Op. 441, 2249 CRB-5-94-12 (Sept. 5, 1996). In the Stewart case, (on remand from our Supreme Court), this board stated that "when the 120-day time limit has long passed, and a party has made no indication that it has an objection to the lateness of a decision, this board is inclined to interpret that inaction as an intent to waive the 120-day time limit. A party shall not be allowed to choose to enforce its right to invalidate a ruling only after the party reviews the decision and decides that it is adverse to its interests, barring special circumstances." Stewart v. Tunxis Service Center, 16 Conn. Workers' Comp. Rev. Op. 69, 71, 1684 CRB-6-93-4 (Oct. 30, 1996).
In the instant case, the respondent did not object to the delay of the issuance of a decision by the trial commissioner until May 28, 1996, the date it filed amended reasons of appeal to include this issue. "We will not allow parties to acquire a type of veto power over a decision by failing to object to a late award until they have an opportunity to see whether they approve of the result." Minneman v. Norwich Board of Education, Case No. 2294 CRB-2-95-2 (decided Dec. 13, 1996). Thus, we hold that the respondent waived its right to enforce the 120-day time limit in § 31-300.
We now turn to the merits of the respondent's appeal. The main issue on review is whether wages paid to the claimant for "outside overtime" should be included in determining his weekly benefit rate pursuant to § 31-310 C.G.S. The trial commissioner found the following relevant facts. The claimant was a regular member of the paid municipal police department of the respondent employer on July 8, 1991 when he suffered a myocardial infarction. The medical records of Dr. Landesman indicate that the claimant was totally disabled from July 8, 1991 until he returned to part-time duty in February of 1992. The claimant returned to full-time duty in April of 1992. Dr. Landesman assessed a twenty percent permanent partial disability with a maximum medical improvement date of January 22, 1992.
As a police officer, the claimant worked extra duty assignments. Extra duty assignments, both "inside" and "outside," were assigned and regulated by the respondent employer. Lieutenant Martinoli was the head of the division which oversaw the extra duty assignments. During all extra duty assignments, the claimant wore his uniform, gun, badge, and radio. The trial commissioner included the claimant's wages for outside extra duty assignments in the determination of his weekly benefit rate. The respondent contends that because the claimant was paid compensation for such outside assignments by the companies which requested the outside assignments rather than by the police department, therefore such payments do not constitute compensation from the respondent employer.
Based upon Claimant's Exhibit No. 6 (a letter signed by Lieutenant Martinoli), the trial commissioner's reference to Lieutenant "Martinalli" appears to be a typographical error.
Our Supreme Court addressed the issue of outside overtime of police officers in Szudora v. Fairfield, 214 Conn. 552 (1990). In that case, the issue was the determination of the cap on weekly benefits set forth in § 7-433b (b). Section 7-433b (b) provides a benefit cap of "one hundred per cent of the weekly compensation" being paid to comparable officers. The court considered the contention that "compensation" should not be construed to include overtime paid to police officers. The court stated that "we must examine the language of the statute in light of the purpose that it was designed to achieve." Id. at 557. The court further noted that workers' compensation legislation, including the provisions of § 7-433c and § 7-433b, is remedial in nature and thus should be "broadly construed in favor of disabled employees." Id.
Section 7-433b (b) provides in relevant part that "the cumulative payments . . . for compensation and retirement or survivors benefits under section 7-433c shall be adjusted so that the total of such cumulative payments received by such member or his dependents or survivors shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his death or retirement. . . ."
The court in Szudora noted that the compensation review board included overtime as well as base salary in the calculation of "weekly compensation" under § 7-433b (b) and "made no distinction between the sources from which the overtime payments (were) derived." Id. at 559. The court further noted that the police officers worked a "variety of overtime jobs, some for the [police] department, and some for outside contractors and utility companies, with the department acting as a conduit for payment." Id. (emphasis added). The court considered to be reasonable the board's determination that all such overtime should be included in the determination of "weekly compensation" under § 7-433b (b).
In support of its appeal, the respondent contends that Szudora is not controlling because it dealt only with the ceiling imposed by § 7-433b (b) rather than the determination of a claimant's actual weekly benefit rate. Moreover, the respondent contends that Szudora is distinguishable because in Szudora, the police officer's W2 tax form included all earnings including earnings from outside overtime. We find this distinction to be important, but not controlling. The recent Supreme Court decision in Six v. Thomas O'Connor Co., 235 Conn. 790, 801 (1996) has reemphasized the need for deference to the findings of the trial commissioner where it is possible to cull support for the decision from the record. "The board . . . must not disturb the commissioner's conclusion as long as it is sustainable by the underlying facts." Id. at 801.
In the instant case, the trial commissioner found that extra duty assignments were "assigned and regulated" by the respondent employer. (Finding No. 7). The record fully supports this finding. Specifically, the respondent employer issued a "Manual of Procedure" for extra duty employment effective September 30, 1990. (Claimant's Exhibit 2). The stated purpose of this manual was to "provide officers working extra-duty assignments with guidelines for required performance during those assignments." (emphasis added). The manual defines extra duty assignments as those assignments "for which the officer receives payment for the time worked, from a source other than the Stamford Police Department." The manual sets forth procedures regarding the assignments and guidelines for the performance of said assignments. In addition, the manual provides that supervisors on duty "shall review the daily extra-duty assignment roster and familiarize themselves with assignment locations." Furthermore, the manual provides that said supervisors shall "be alert for any conditions that do not comply with this policy and take immediate corrective action where necessary. . . ." The claimant testified that while on extra duty assignments, he was sometimes visited by supervisors. (5/24/94 TR. at 17). The manual also limited the number of hours of extra duty overtime which a police officer could work. In addition, we note that it appears that the respondent sets the rate of compensation for extra duty assignments, based upon a letter from Lieutenant Martinoli which states: "The current rate for extra duty employment is $27.00 per hour." (Claimant's Exhibit No. 6).
Under § 7-433c, a claimant is entitled "to benefits payable in the `same amount and the same manner' as are payable under the Workers' Compensation Act. . . ." Revoir v. New Britain, 2 Conn. App. 255, 260 (1984). Section 31-310 requires that the average weekly wage be ascertained by taking into account "the total wages received by the injured employee from the employer in whose service he is injured. . . ." The Act does not define the term "wages." Our Appellate Court, however, has held that "wages" and "earnings" are both broad terms that encompass every form of remuneration payable for personal services, in contrast to "salary," which is limited to an employee's base pay prior to the inclusion of overtime pay or other salary enhancements. Vecca v. State, 29 Conn. App. 559, 563 (1992); see also Goodwin v. Stop Shop Companies. Inc., 13 Conn. Workers' Comp. Rev. Op. 301, 303, 1830 CRB-3-93-9 (April 21, 1995).
In the instant case, the claimant's extra duty assignments were dependent upon the claimant's employment with the respondent, as only a police officer could perform said assignments. We conclude that the record supports the trial commissioner's determination that the respondent assigned and regulated the extra duty assignments, and thus an inference that the respondent had control over these assignments is reasonable. Accordingly, the determination that compensation from said assignments should be included in the determination of the claimant's benefit rate was within the discretion of the trial commissioner. SeeYale v. Allegheny Ludlum, 13 Conn. Workers' Comp. Rev. Op. 275, 1894 CRB-8-93-11 (April 19, 1995) (trial commissioner is entitled to determine whether profit sharing checks included in wages).
We note that Deputy Police Chief Walter G. Young testified that when a police officer is performing an extra duty assignment he is subject to all of the rules and regulations of the Stamford Police Department. (Respondents' Exhibit F: Deposition of Walter G. Young at p. 12). He further testified: "We don't want officers acting as bouncers in bars, for instance. We don't want officers trying to use their power . . . to enforce private corporation rules. We want the officers to enforce the State Statutes and City Ordinances, and we want them to do the work that is required of police officers. That's why we require the notification [of extra duty assignments]." (Id. at p. 9).
We will next address the respondent's contention that the claimant's temporary total disability ended on September 25, 1991 rather than February 1992. Whether a claimant is totally disabled from working is a question of fact for the trial commissioner to determine. Coutu v. Interroyal Corp., 13 Conn. Workers' Comp. Rev. Op. 215, 1680 CRB-2-93-3 (April 12, 1995); Vuoso v. Custom Gunite Pools, 13 Conn. Workers' Comp. Rev. Op. 50, 51, 1581 CRB-7-92-12 (Dec. 7, 1994). We will not disturb a trial commissioner's factual determination unless the conclusions are contrary to law, or based on impermissible or unreasonable factual inferences. Fair v. People's Savings Bank, 207 Conn. 535, 539 (1988). Moreover, we may not disturb the trial commissioner's conclusions which are dependent on the weight and credibility accorded the evidence. Miller v. TVCCA, 12 Conn. Workers' Comp. Rev. Op. 348, 1675 CRB-2-93-3 (July 29, 1994), aff'd., 39 Conn. App. 935 (1995).
In the instant case, the trial commissioner's conclusion that the claimant was totally disabled from July 8, 1991 through February of 1992 is supported by the record, including the medical reports of Dr. Landesman. The respondent's reliance upon the September 25, 1991 report by Dr. Landesman is misguided, as that report merely states that the claimant is "stable" but needs to be rechecked and tested at a hospital. In fact, Dr. Landesman's subsequent letter dated September 30, 1991 indicates that the claimant "is unable to work and remains totally disabled." (Claimant's Exhibit No. 10). In addition, a letter dated November 8, 1991 from Dr. Landesman indicates that the claimant would continue a cardiac rehabilitation program for "the next two to three months." (Claimant's Exhibit No. 11). The claimant did not return to work until February of 1992. (Finding No. 5; 5/9/94 TR. at p. 15, 18).
Finally, we will address the respondent's contention that the trial commissioner abused her discretion by awarding interest and attorney's fees. We find no merit to the respondent's argument that because the claimant's claim was filed under § 7-433c therefore the trial commissioner lacked "jurisdiction" to award interest or attorney's fees. See Revoir, supra, at 260 (benefits under § 7-433c are payable in the same manner as under Chapter 568). Section 31-300 provides that in "cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney's fee."
Whether the respondents unreasonably contested their liability for the claimant's permanent partial disability and benefit rate in this case was a factual question for the trial commissioner. See Robinson v. Allied Grocers Cooperative, Inc., 1 Conn. Workers' Comp. Rev. Op. 132, 135, 68 CRD-1-81 (July 13, 1982), affirmed, 39 Conn. Sup. 386, 388-89 (1983). Moreover, an award of interest and attorneys' fees is within the discretion of the trial commissioner. Hicks v. Department of Administrative Services, 21 Conn. App. 464, 466-67 (1990); Wheeler v. Bender Plumbing Supply of Waterbury, Inc., 10 Conn. Workers' Comp. Rev. Op. 140, 141, 1186 CRD-5-91-3 (June 5, 1992). We find no abuse of that discretion. However, because the trial commissioner's decision should have been issued within 120 days following the close of the record, the respondent should not be required to pay interest which accrued after the 120 days had expired. The award of interest must be modified accordingly.
In all other respects, the trial commissioner's decision is affirmed.
Commissioners George Waldron and Michael S. Miles concur.